Jacob Davis v. Tennessee Department of Correction

10/30/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 2, 2018 Session

JACOB DAVIS V. TENNESSEE DEPARTMENT OF CORRECTION ET AL.

Appeal from the Chancery Court for Davidson County

No. 15-857-I Claudia Bonnyman, Chancellor

No. M2017-02301-COA-R3-CV

Having pursued relief under the Uniform Administrative Procedures Act, Jacob Davis

filed a petition for a declaratory order with the Tennessee Department of Correction

(“TDOC” or “the Department”) to challenge the Department’s interpretation of the

statutes regarding release after a sentence of life, and the constitutionality of Tenn. Code

Ann. § 40-35-501(i). Upon receiving an unsatisfactory response, Davis then filed a

declaratory judgment action in the Davidson County Chancery Court against the TDOC

and the Tennessee Attorney General (collectively, “the State”) about the calculation of

his sentence, including his eligibility for release and the constitutionality of Tenn. Code

Ann. § 40-35-501. The chancery court ruled against him and he appealed. The Court of

Appeals finds, based on rules of statutory interpretation, Vaughn v. State, 202 S.W.3d

106 (Tenn. 2006), and a number of cases from the Court of Criminal Appeals, that Tenn.

Code Ann. § 40-35-501(i) establishes the legal release date for someone sentenced to life.

The court also finds that the statute is constitutional. The chancery court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

Jennifer L. Weaver, Nashville, Tennessee, and David Herrington, Martine B. Forneret,

and Margot Gianis Mooney, New York, New York, for the appellant, Jacob Davis.

Herbert H. Slatery, III, Attorney General and Reporter, Andrée Blumstein, Solicitor

General, Stephanie Renee Reevers, Deputy Attorney General, and Charlotte Montiel

Davis, Assistant Attorney General, for the appellees, Tennessee Department of

Correction and State Attorney General.

OPINION

Jacob Davis was a straight “A” student. He had no history of criminal conduct.

Yet, shortly after turning 18 years old, Davis fatally shot another student at school who

had had sexual relations with his girlfriend.1 A jury convicted him of first degree murder,

reckless endangerment, and carrying a weapon on school property. State v. Davis, No.

M1999-02496-CCA-R3-CD, 2001 WL 487688, *1 (Tenn. Crim. App. May 8, 2001).

“The trial court sentenced him to life imprisonment for the first degree murder conviction

and one year each for the reckless endangerment and carrying a weapon on school

property convictions. The trial court ordered that the latter sentences be served concurrent

to the sentence for life imprisonment.” Id. The Court of Criminal Appeals affirmed his

conviction. Id. Davis also filed an unsuccessful post-conviction petition. Davis v. State,

No. M2003-00744-CCA-R3-PC, 2004 WL 253396, *1 (Tenn. Crim. App. Feb. 11, 2004).

Davis appears to have been a model prisoner. In prison, he has worked in the field

of computer programming, enrolled at Lipscomb University’s LIFE program, helped train

service dogs to assist the disabled, and volunteered to speak to at-risk youth about his life

and choices. Davis has received no write-ups during his incarceration for violent offenses

or drugs and has not been affiliated with any gangs.

In January 2015, Davis asked the TDOC to recalculate his sentence and parole

eligibility date. TDOC responded: “Effective 7-1-95, violent offences committed on or

after 7-1-95 (your offence date is 5-19-99) and receive a life sentence must serve 60 years

1

The Court of Criminal Appeals opinion affirming Davis’s conviction described the shooting as follows:

That afternoon [May 19, 1999], Allan Higgs was sitting in shop class (at approximately

1:45 p.m.) when he saw the Defendant back his car into a space in the parking lot by the

athletic field house. The testimony at trial showed that Creson was a football player, and

every day for the past three years, he had gone to the field house at 2:00 p.m. for seventh

period practice. As the bell rang at 2:00 p.m. for seventh period, Nick Creson walked

toward the field house. Because classes were changing, there were approximately 100-

150 other students in the area surrounding Creson, including Brad Schrimsher, who was

standing directly behind Creson. Cassandra Sharp testified that as she was walking to

meet Creson (it was their custom to walk to seventh period together), she saw the

Defendant step out of his car, raise a rifle to his chest, point it at Creson and fire a shot

from a distance of approximately 30 to 40 feet. Creson fell to his knees, holding his

books up as a shield and pleading with the Defendant to stop shooting. The Defendant

moved closer and fired a second shot, which caused Creson to fall on his back. Defendant

continued to approach and fired the third and final shot down into Creson’s chest. After

this final shot, the Defendant placed the gun down and sat down on the ground near

Creson’s body.

State v. Davis, No. M1999-02496-CCA-R3-CD), 2001 WL 487688, *3 (Tenn. Crim. App. May 8, 2001).

-2-

before Parole eligible, with credits, sentence can reduce to no less than 51 years. Your

current RED2 date is 3-28-2050.”

Davis then filed a petition for a declaratory order with the TDOC to challenge the

Department’s interpretation of the statutes and the constitutionality of Tenn. Code Ann. §

40-35-501. In a fairly summary letter, the department denied the petition saying,

The Department is required to obey the judgment orders as they are

received from the court of jurisdiction, and we have. Any issue you may

have, regarding your judgment orders, must be addressed with the court of

jurisdiction.

Judgment order in case # S9800087 (ct 1) sentences you to a life sentence

and shows the date of your offense, of murder in the 1st degree, as May 19,

1998.

See Tennessee Attorney General Opinion 97-098 for clarification in regards

to release eligibility on a life sentence as provided for in T.C.A. § 40-35-

501.3

TOMIS shows that the Department is accounting for the prisoner sentence

reduction credits that are being earned on a monthly basis.

Therefore, the Department respectfully denies your petition.

Davis then filed a declaratory judgment action in the Davidson County Chancery

Court against the State about the calculation of his sentence, including his eligibility for

release and the constitutionality of Tenn. Code Ann. § 40-35-501. The TDOC filed a

motion for summary judgment, which was granted. Davis appealed.

STANDARD OF REVIEW

The Tennessee Supreme Court has set out the standard of review for cases decided

on summary judgment:

2

Release Eligibility Date

3

Tennessee Attorney General Opinion No. 97-098 (July 1, 1997) states that “under the amended Tenn.

Code. Ann. § 40-35-501, the mandatory minimum period of confinement that must be served by those

sentenced to life imprisonment is fifty-one years.” Tennessee Attorney General Opinions are not binding

on the courts. State v. Black, 897 S.W.2d 680, 683 (Tenn. 1995). Tennessee government officials do rely

on them, however, so they are “entitled to considerable deference.” Id.

-3-

[I]n Tennessee, as in the federal system, when the moving party does not

bear the burden of proof at trial, the moving party may satisfy its burden of

production either (1) by affirmatively negating an essential element of the

nonmoving party’s claim or (2) by demonstrating that the nonmoving

party’s evidence at the summary judgment stage is insufficient to establish

the nonmoving party’s claim or defense. We reiterate that a moving party

seeking summary judgment by attacking the nonmoving party’s evidence

must do more than make a conclusory assertion that summary judgment is

appropriate on this basis. Rather, Tennessee Rule 56.03 requires the

moving party to support its motion with “a separate concise statement of

material facts as to which the moving party contends there is no genuine

issue for trial.” TENN. R. CIV. P. 56.03. “Each fact is to be set forth in a

separate, numbered paragraph and supported by a specific citation to the

record.” Id. When such a motion is made, any party opposing summary

judgment must file a response to each fact set forth by the movant in the

manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary

judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”

to survive summary judgment, the nonmoving party “may not rest upon the

mere allegations or denials of [its] pleading,” but must respond, and by

affidavits or one of the other means provided in Tennessee Rule 56, “set

forth specific facts” at the summary judgment stage “showing that there is a

genuine issue for trial.” TENN. R. CIV. P. 56.06. The nonmoving party

“must do more than simply show that there is some metaphysical doubt as

to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106

S.Ct. 1348. The nonmoving party must demonstrate the existence of

specific facts in the record which could lead a rational trier of fact to find in

favor of the nonmoving party. If a summary judgment motion is filed

before adequate time for discovery has been provided, the nonmoving party

may seek a continuance to engage in additional discovery as provided in

Tennessee Rule 56.07. However, after adequate time for discovery has been

provided, summary judgment should be granted if the nonmoving party’s

evidence at the summary judgment stage is insufficient to establish the

existence of a genuine issue of material fact for trial. TENN. R. CIV. P.

56.04, 56.06. The focus is on the evidence the nonmoving party comes

forward with at the summary judgment stage, not on hypothetical evidence

that theoretically could be adduced, despite the passage of discovery

deadlines, at a future trial.

Rye v. Women’s Care Ctr. of Memphis, MPLLC., 477 S.W.3d 235, 264-65 (Tenn. 2015)

(emphasis omitted). As the trial court observed, “Summary judgments are proper in

virtually any civil case that can be resolved on the basis of legal issues alone.” Jeffries v.

Tenn. Dep’t of Corr., 108 S.W.3d 862, 868 (Tenn. Ct. App. 2002). “We review a trial

-4-

court’s ruling on a motion for summary judgment de novo, without a presumption of

correctness.” Rye, 477 S.W.3d at 250.

ANALYSIS

Statutory Construction

Davis’s first issue addresses whether the Department was correct in relying on

Tenn. Code Ann. § 40-35-501(i) in calculating his sentence. Davis maintains that the

Department should have applied Tenn. Code Ann. § 40-35-501(h)(1) and § 39-13-

204(e)(2) instead. Tennessee Code Annotated section 39-13-204(e)(2) states:

The trial judge shall provide the jury three (3) separate verdict forms, as

specified by subdivisions (f)(1), (f)(2), and (g)(2)(B). The jury shall be

instructed that a defendant who receives a sentence of imprisonment for life

shall not be eligible for parole consideration until the defendant has served

at least twenty-five (25) full calendar years of the sentence. The jury shall

also be instructed that a defendant who receives a sentence of imprisonment

for life without possibility of parole shall never be eligible for release on

parole.

Tennessee Code Annotated section 40-35-501(h)(1) provides:

Release eligibility for each defendant receiving a sentence of imprisonment

for life for first degree murder shall occur after service of sixty percent

(60%) of sixty (60) years less sentence credits earned and retained by the

defendant, but in no event shall a defendant sentenced to imprisonment for

life be eligible for parole until the defendant has served a minimum of

twenty-five (25) full calendar years of the sentence, notwithstanding the

governor’s power to reduce prison overcrowding pursuant to title 41,

chapter 1, part 5, any sentence reduction credits authorized by § 41-21-236

or any other provision of law relating to sentence credits. A defendant

receiving a sentence of imprisonment for life for first degree murder shall

be entitled to earn and retain sentence credits, but the credits shall not

operate to make the defendant eligible for release prior to the service of

twenty-five (25) full calendar years.

Tennessee Code Annotated section 40-35-501(i) states, in pertinent part:

(1) There shall be no release eligibility4 for a person committing an offense,

on or after July 1, 1995, that is enumerated in subdivision (i)(2). The person

4

The parties in this and other cases regarding Tenn. Code Ann. § 40-35-501(i) often refer to parole and

-5-

shall serve one hundred percent (100%) of the sentence imposed by the

court less sentence credits earned and retained. However, no sentence

reduction credits authorized by § 41-21-236 or any other provision of law,

shall operate to reduce the sentence imposed by the court by more than

fifteen percent (15%).

(2) The offenses to which subdivision (i)(1) applies are:

(A) Murder in the first degree; . . . .

In order to determine which statute governs, we use canons of statutory

construction. These canons are not “laws” as such, but guidelines or rules courts use to

interpret statutes. The most fundamental rule of statutory construction is that the court

should ascertain and effectuate the intention of the legislature. Rodriguez v. State, 437

S.W.3d 450, 453 (Tenn. 2014). The understanding of a statute’s intent begins with the

words used in the statute. Embraer Aircraft Maint. Servs., Inc. v. AeroCentury Corp., 538

S.W.3d 404, 410 (Tenn. 2017). Consequently, courts give the words of the statute their

natural and ordinary meaning, study the statute’s words in the light of the entire statute,

and assume the legislature wanted each word of the statute to be given full effect. Id.

Reading each statute and giving each word its natural and ordinary meaning, we

find that the statutes conflict as to the sentence of life in prison for the offense of murder

in the first degree committed on or after July 1, 1995. Both Tenn. Code Ann. § 39-13-

204(e)(2) and Tenn. Code Ann. § 40-35-501(h)(1), both enacted by 1993 Tenn. Pub.

Acts, Ch. 473, contemplate that defendants sentenced to imprisonment for life serve a

minimum of 25 years before they are even eligible for parole. On the other hand, Tenn.

Code Ann. § 40-35-501(i), which was enacted by 1995 Tenn. Pub. Acts, Ch. 492 and did

not take effect until July 1, 1995, envisions that the 60-year sentence for life in prison

could not be reduced by more than 15% by sentence reduction credits, leading to a

minimum imprisonment of 51 years.

The conflict regarding these statutes has been addressed several times. The first

time it was addressed was in Tenn. Atty. Gen. Op. 97-098 (July 1, 1997). The Attorney

General concluded that the statutes conflicted and that, to the extent of the conflict, the

most recently enacted statute prevails. Thus, the Attorney General opined that “the

life with parole. This statute “provides the means for determining the sentence expiration date, and release

is not contingent upon a grant of parole.” State v. Self, No. E2014-02466-CCA-R3-CD, 2016 WL

4542412, *62 (Tenn. Crim. App. Aug. 29, 2016). The Court of Criminal Appeals has observed that “the

term ‘life with parole’ is inaccurate because a life sentence entitles a defendant to release, not parole, after

service of 100 percent of sixty years less any sentences credits, provided the credits do not reduce the

sentence by more than fifteen percent, or nine years.” Id. (citing Williams v. State, No. W2013-00555-

CCA-R3-HC, 2013 WL 5493568, at *2 (Tenn. Crim. App. Sept. 30, 2013) perm. app. denied (Tenn. Dec.

10, 2013)).

-6-

mandatory minimum period of confinement that must be served by those sentenced to life

imprisonment is fifty-one years.” Tenn. Atty. Gen. Op. 97-098, at *1. Although

Tennessee Attorney General opinions are not binding on the courts, State v. Black, 897

S.W.2d 680, 683 (Tenn. 1995), they “are particularly persuasive when they have been

consistently repeated.” H & R Block E. Tax Serv,. Inc. v. State Dep’t. of Commerce &

Ins., 267 S.W.3d 848, 861 (Tenn. Ct. App. 2008). See also In re AAAA Bonding Co.,

LLC, No. M2014-02157-CCA-R3-CD, 2016 WL 2621087, at *4 (May 5, 2016). As we

will see below, Op. No. 97-098 has been cited repeatedly.

In State v. Golden, No. 02C01-9709-CR-00362, 1998 WL 518071, at *7 (Tenn.

Crim. App, Aug. 21, 1998), the appellate court determined that “[a]lthough Tennessee

Code Annotated § 39-13-204(e)(2) specifically requires that the jury be instructed as to

service of ‘at least twenty-five (25) full calendar years’ before being eligible for parole

consideration, this statutory calculation is erroneous.” The Court of Criminal Appeals

observed that, “[a]s noted by the State Attorney General, for crimes committed after July

1, 1995, minimum release eligibility for a life sentence is fifty-one (51) years and not

twenty-five (25) years.” Golden, 1998 WL 518071, at *7 (citing Tenn. Atty. Gen. Op. 97-

098). The court said that the statutes were in conflict; but the legislature clearly “intended

to change the minimum release eligibility date for a life sentence from twenty-five (25)

years to fifty-one (51) years.” Id. at *8. The case was remanded to the trial court for

resentencing because of the erroneous instruction. Id. See also Maine v. State, No.

E2004-00143-CCA-R3-PC, 2005 WL 1996631, at *1 n.1 (Tenn. Crim. App. Aug. 19,

2005) (citing Golden, 1998 WL 518071, and Tenn. Att’y Gen. Op. No. 97-098)

(involving guilty pleas induced by false information that defendant would be eligible for

release after serving 25 years of the life sentence); State v. Milam, No. 01C01-9712-CC-

00557, 1999 WL 701419, at *5 (Tenn. Crim. App. Sept. 10, 1999) (involving erroneous

jury instruction similar to Golden). Golden has been cited by the Court of Criminal

Appeals in a case where a trial judge referred to the 25-year life sentence, and “[T]he

State immediately brought to the attention of the court a ‘recent State Attorney General’s

opinion that says a life sentence is fifty-one (51) years.’” Jones v. State, No. E2004-

00240-CCA-R3-PC, 2004 WL 2900520, at *4, n.3 (Tenn. Crim. App. Dec. 15, 2004)

(citing Golden, 1998 WL 518071, and Tenn. Att’y Gen. Op. 97-098).

In 2006, the Tennessee Supreme Court undertook to answer the same question

presented in Golden: “were the petitioners denied effective assistance of counsel when

trial counsel failed to object to an erroneous jury instruction regarding the release

eligibility for a person convicted of first degree murder when there had been a recent

change in the law.” Vaughn v. State, 202 S.W.3d 106, 110 (Tenn. 2006). In Vaughn v.

State, the Supreme Court observed:

The trial court stated that if the jury found the defendant guilty of first

degree murder, the trial court would impose a sentence of life in prison,

which required the prisoner to serve a minimum of twenty-five years before

-7-

becoming eligible for parole. However, at the time of trial, the applicable

statute provided that a person convicted of first degree murder and

sentenced to life in prison must serve at least fifty-one years before

becoming eligible for parole. No objection was made at either trial to the

erroneous jury instruction.

Id. at 111. Thus, the Supreme Court stated that a sentence of life in prison was for a

minimum of 51 years. Id. The court cited both Tenn. Code Ann. § 40-35-501(h)(1) and

Tenn. Code Ann. § 40-35-501(i), noted the conflict, and referred to Tenn. Att’y Gen. Op.

No. 97-098 as being based on “long established rules of statutory construction.” Id. at

118. The Court concluded that, “[a]s for the conflict in the statutes, well-settled principles

of statutory construction make it clear that the most recently enacted statute repeals by

implication any irreconcilable provisions of the former act.” Id. Because “trial counsel

failed to apprise themselves of the correct release eligibility dates for the possible

convictions and therefore failed to notice and object to the incorrect jury instruction [and]

both likewise failed to raise the issue on direct appeal even after the conflict in language

was clarified by the Attorney General,” the Supreme Court held that their performance

was deficient under the prevailing standards. Id. at 119. The Court further found that the

attorneys’ error prejudiced the defense and, accordingly, reversed the convictions and

remanded for a new trials. Id. at 119-20. Upon reading Vaughn, one cannot doubt that the

Tennessee Supreme Court determined that the controlling statute was Tenn. Code Ann. §

40-35-501(i).

Several cases have since visited this issue. In Carney v. Barbee, No. W2011-

01977-CCA-R3-HC, 2012 WL 5355665 (Tenn. Crim. App. Oct. 31, 2012), the petitioner

raised the conflicting provisions of subsections 40-35-501(h) and (i). The Court of

Criminal Appeals made short work of that argument, citing and discussing Vaughn and

Tenn. Att’y Gen. Op. 097-98. Carney, 2012 WL 5355665, at *3-4.

In Draper v. Lindamood, No. W2013-01030-CCA-R3-HC, 2014 WL 465723, at

*1 (Tenn. Crim. App. Jan. 31, 2014) perm. app. denied (Tenn. June 20, 2014), the

petitioner argued that the trial court did not have jurisdiction to sentence him to life with

the possibility of parole. The Court of Criminal Appeals quoted Tenn. Code Ann. § 40-

35-501(i) and explained:

Although the court used the phrase “life sentence with the possibility of

parole,” instead of “life,” to describe the petitioner's sentence under the

plea, the court explained that such sentence was a mandatory sixty-year

sentence with the potential that it could be reduced by as much as fifteen

percent for good behavior, equating to a fifty-one-year sentence, but that

such reduction was not guaranteed. The court's explanation was directly in

line with the statute. In addition, an opinion by the Tennessee Attorney

General submitted by the petitioner in support of his claim explains the

-8-

same thing and concludes that “the mandatory minimum percentage of a

life term that must be served prior to becoming release eligible is 85% of

sixty years, or fifty-one years.” Op. Att’y Gen. No. 97–098 (July 1, 1997).

Draper, 2014 WL 465723, at *3.

In State v. Guerrero, No. M2014-01669-CCA-R3-CD, 2015 WL 2208546

(Tenn. Crim. App. May 11, 2015) perm. app. denied (Tenn. Sept. 17, 2015), the

petitioner argued his sentence was illegal because his two life sentences, which

required 100% service of sixty years’ confinement less sentencing credits up to

15%, “were tantamount to life sentences without the eligibility or possibility of

parole.” Guerrero, 2015 WL 2208546 at *1. The Court of Criminal Appeals

determined that

A defendant convicted of first degree murder must serve 100% of a

life imprisonment sentence, but a defendant is “‘entitle[d] to release

eligibility . . . after serving sixty years, the equivalent to a life

sentence for the purpose of calculating release eligibility,’” less any

sentence reduction credits up to 15%, or nine years. Jerry D. Carney

II v. Dwight Barbee, Warden, No. W2011-01977-CCA-R3-HC,

2012 WL 5355665, at *4 (Tenn. Crim. App. Oct. 31, 2012) (quoting

Tenn. Op. Att’y Gen. No. 97–098 (1997)); see Vaughn, 202 S.W.3d

at 118-19. As a result, Tennessee statutes permit release from

confinement for life imprisonment after serving fifty-one years. See

T.C.A. § 40-35-501(h)(1), (i)(1), (i)(2)(A).

...

The life imprisonment sentences imposed do not entitle the

Defendant to parole; however, Tennessee statutes permit release

from confinement after serving fifty-one years. See id. § 40-35-

501(i)(1). In comparison, defendants sentenced to life imprisonment

without the possibility of parole are not eligible for release from

confinement. See id. § 40-35-501(g). As a result, the life

imprisonment sentences imposed by the trial court are not the

equivalent to life imprisonment without the possibility of parole and

are not in direct contravention of any statute.

Id. at *2-3 (emphasis omitted). See also Blake v. State, No. W2015-01423-CCA-R3-PC,

2016 WL 4060696, at *11 ( Tenn. Crim. App. July 27, 2016) perm. app. denied (Tenn.

Nov. 22, 2016) (citing Carney, Vaughn and Tenn Att’y Gen. Op. 97-098); Motley v.

Lester, No. W2014-00355-CCA-R3-HC, 2015 WL 847414, at *2 (Tenn. Crim. App. Jan.

30, 2015) perm. app. denied (Tenn. May 19, 2015).

-9-

Most recently, in State v. Self, No. E2014-02466-CCA-R3-CD, 2016 WL

4542412, at *61 (Tenn. Crim. App. Aug. 29, 2016) perm. app. denied (Tenn. Jan. 19,

2017), the defendant contended that he should have been sentenced under Tenn. Code

Ann. § 40-35-501(h)(1). However, the Court of Criminal Appeals stated:

Our supreme court had said that section 40-35-501(h)(1) applies to

defendants whose life sentences were imposed for first degree murder

offenses committed before July 1, 1995, and that section 40-35-501(i)(1)

applies to defendants whose sentenced are for enumerated offenses

committed on or after July 1, 1995. Vaughn v. State, 202 S.W.3d 106, 118

(Tenn. 2006); see Op. Tenn. Att’y Gen. 97-098 (1997).

Self, 2016 WL 4542412, at *61.

Statutory construction rules, the oft-repeated Tennessee Attorney General’s

Opinion, the Supreme Court’s decision in Vaughn and a string of Court of Criminal

Appeals decisions all resolve the conflict in favor of Tenn. Code Ann. § 40-35-501(i)

controlling. We agree with these authorities.

Jurisdiction to Hear Constitutional Challenges

The State maintains that Davis’s challenge to the constitutionality of Tenn. Code

Ann. § 40-35-501(i) “amounts to a challenge to the validity of his criminal sentence,

which cannot be reviewed by the chancery court under the UAPA.” The case of Rayner v.

Tennessee Department of Correction, No. M2017-00223-COA-R3-CV, 2017 WL

2984269, at *3 (Tenn. Ct. App. July 13, 2017) perm. app. denied (Tenn. Nov. 16, 2017),

is cited for the proposition that “‘declaratory proceedings under Tenn. Code Ann. § 4-5-

225 . . . cannot be used to challenge the validity of a criminal conviction or sentence.’”

Id. (quoting Mitchell v. Campbell, 88 S.W.3d 561, 565 (Tenn. Ct. App. 2002)). The State

contends that, by challenging the constitutionality of the statute that governs his release

eligibility, Davis is challenging the validity of his sentence.

Davis notes that the TDOC has the duty of calculating sentence expiration dates

and release dates of felony offenders. Tenn. Code Ann. § 40-35-501(r).5 Whether Tenn.

Code Ann. § 40-35-501(h)(1) or Tenn. Code Ann. § 40-35-501(i) controls, Davis will

still have been sentenced to life, i.e. 60 years. The issue is when he is eligible to get out

of prison. Davis contends that the chancery court has jurisdiction to hear the

5

Because the TDOC is responsible for calculating Davis’s sentence expiration date, release eligibility

claims are not properly considered in a direct appeal of the conviction. Self, 2016 WL 4542412, at *62

(“Because the Department of Correction is responsible for calculating his sentence expiration date, the

issue was not properly before the trial court and, as a result, is not properly before this court. Challenges

to the Department of Correction’s determinations are subject to review under the Uniform Administrative

Procedures Act.”).

- 10 -

constitutional challenges to Tenn. Code Ann. § 40-35-501(i), citing the language of Tenn.

Code Ann. § 4-5-223, and Tolley v. Attorney General of Tennessee, 402 S.W.3d 232

(Tenn. Ct. App. 2012).

Tennessee Code Annotated section 4-5-223(a) states: “Any affected person may

petition an agency for a declaratory order as to the validity or applicability of a statute,

rule or order within the primary jurisdiction of the agency.” Furthermore, Tenn. Code

Ann. § 4-5-223(a) references Tenn. Code Ann. § 4-5-225, which provides that “[a]

declaratory judgment shall not be rendered concerning the validity or applicability of a

statute, rule or order unless the complainant has petitioned the agency for a declaratory

order and the agency has refused to issue a declaratory order.”

When considering what constitutional issues an administrative agency may

properly hear, we must begin with Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827

(Tenn. 2008). In that case, Colonial Pipeline Company filed a declaratory judgment

action against the State, claiming that certain tax assessments against its pipeline were

unconstitutional. Colonial Pipeline, 263 S.W.3d at 832. Unlike the instant case, Colonial

Pipeline Company did not utilize the UAPA, even though it applied. Id. at 841. Rather,

the company filed a declaratory judgment action in the chancery court. Id. at 835. In

determining whether the company acted properly, the Supreme Court ruled:

Administrative tribunals do not lack the authority to decide every

constitutional issue. It is essential, however, to distinguish between the

various types of constitutional issues that may arise in the administrative

context. In Richardson [v. Board of Dentistry, 913 S.W.2d 446 (Tenn.

1995)], we developed three broad categories of constitutional disputes: (1)

challenging the facial constitutionality of a statute authorizing an agency to

act or rule, (2) challenging the agency’s application of a statute or rule as

unconstitutional, or (3) challenging the constitutionality of the procedure

used by an agency. Id. at 454-55. Administrative tribunals have the power

to decide constitutional issues falling into the second and third categories,

but the first category falls exclusively within the ambit of the judicial

branch. Id. The separation of powers clause reserves for the judiciary

constitutional challenges to the facial validity of a statute. Id.

Id. at 843. A facial challenge to a statute involves “a claim ‘that the statute fails a

constitutional test and should be found invalid in all applications.’” Jackson v. HCA

Health Servs. of Tenn., Inc., 383 S.W.3d 497, 500 (Tenn. Ct. App. 2012) (quoting Waters

v. Farr, 291 S.W.3d 873, 921 (Tenn. 2009)). Thus, if Davis’s claims amount to a facial

challenge, they cannot proceed through the UAPA. If his claims are “as applied”

challenges, then they must proceed through the UAPA.

- 11 -

In Tolley v. Attorney General of Tennessee, 402 S.W.3d at 232, the Court of

Appeals addressed the question of whether Tenn. Code Ann. § 40-35-501(i)(1) & (2)(a),

regarding a prison inmate's release eligibility date, are unconstitutional as applied to life

sentences. Tolley, 402 S.W.3d at 233. Pursuant to Colonial Pipeline, the court

considered whether the constitutional challenge was facial or as applied. Id. at 236. The

Court of Appeals concluded:

Mr. Tolley does not argue that the statute is unconstitutional when applied

to all sentences, but merely that it is unconstitutional as applied to life

sentences. However, Tennessee Code Annotated Section 40-35-501(i) is

not limited to only those offenses that carry a life sentence. See Tenn.Code

Ann. § 40-35-501(i) (applying the provision at issue to several different

offenses, including rape, aggravated rape, aggravated kidnapping,

especially aggravated kidnapping, and aggravated arson). Therefore, Mr.

Tolley has failed to show that “no set of circumstances exist under which

the [statute] would be valid.” Lynch v. City of Jellico, 205 S.W.3d at 390

(quoting Davis-Kidd Booksellers, 866 S.W.2d at 525). Based on the

foregoing, we agree with the trial court that Mr. Tolley’s Petition for

Declaratory Judgment represents an “as applied challenge” to Tennessee

Code Annotated Sections 40-35-501(i)(1) & (2)(a). As such, the trial court

properly dismissed Mr. Tolley's petition for failure to exhaust

administrative remedies.

Tolley, 402 S.W.3d at 237-38. The same would be true for Davis. Pursuant to the

authority of Tolley, Davis’s challenge is an “as applied” challenge and, therefore,

proceeding through the UAPA is proper.

Vagueness

Davis’s brief raises a rather unusual vagueness argument -– that the conflicting

statutes “would necessarily cause people of common intelligence to ‘guess at the meaning

of [the] statute and differ as to its application.’” Davis brief, at 39 (quoting State v. Boyd,

925 S.W.2d 237, 243 (Tenn. Crim. App. 1995)). As the federal court for the Eastern

District of California observed earlier this year, “plaintiffs do not cite, and the court is

unaware of, any case that has held an enactment to be void for vagueness because it

conflicts with another enactment and it is not clear which enactment controls.” Wiese v.

Becerra, 306 F.Supp.3d 1190, 1200 (E.D. Cal. 2018). See also Karlin v. Foust, 188 F.3d

446, 469 (7th Cir. 1999) (stating that conflicting statutes do not create a void for

vagueness issue, but rather “create[] a question of implied repeal under Wisconsin law”).

The cases Davis cites are not similar to Davis’s claim. The California district court went

on to explain that “the later-enacted version controls.” Wiese, 306 F.Supp.3d at 1200. “It

is not beyond the capacity of individuals with ordinary intelligence to look up the

enactment dates” of the statutes. Wiese v. Becerra, 263 F.Supp.3d 986, 997 (E.D. Cal.

- 12 -

2017) (denying motion for preliminary injunction). “A statute is not vague ‘which by

orderly processes of litigation can be rendered sufficiently definite and certain for

purposes of judicial decision.’” State v. Burkhart, 58 S.W.3d 694, 697 (Tenn. 2001)

(quoting State v. Wilkins, 655 S.W.2d 914, 916 (Tenn. 1983). We also agree with the trial

court that any question as to the proper interpretation of the statutes was resolved by

Vaughn. To paraphrase United States v. Culbert, 435 U.S. 371, 379 (1978), we decline to

manufacture vagueness where none exists.

Caption

The last sentence of Article II, Section 17 of the Tennessee Constitution states:

“All acts which repeal, revive or amend former laws, shall recite in their caption, or

otherwise, the title or substance of the law repealed, revived or amended.” Because 1995

Tenn. Pub. Acts, Ch. 492 makes no reference to repealing Tenn. Code Ann. § 39-13-

204(e)(2), Davis maintains that the interpretation of Tenn. Code Ann. § 40-35-501(i) to

require a minimum of 51 years for a life sentence is unconstitutional.

The object of the last sentence of Article II, Sec. 17 is to “prevent improvident

legislation, and to direct the attention of the members of the Legislature to the existing

law, and the proposed change.” State ex rel. Hamby v. Gaines, 69 Tenn. 734, 736 (1878).

The words “or otherwise” refer to the preamble or body of the act. Id. Thus, both the

body and the caption of the act may be examined to determine whether title or substance

of the laws sought to be repealed, revived or amended are sufficiently identified. House

v. Creveling, 250 S.W. 357, 360 (Tenn. 1923). The constitution is satisfied “where the

caption or the body of the act taken as a whole and from a practical standpoint indicated

the subject of legislation sought to be affected.” Heiskell v. City of Knoxville, 189 S.W.

857, 859 (Tenn. 1916).

Looking at Ch. 492 “as a whole and from a practical standpoint,” we conclude that

any statute in place before the July 1, 1995 effective date of Ch. 492, with a release

eligibility other than a minimum of 51 years for a life sentence is repealed as to offenses

committed on or after July 1, 1995. The caption of Ch. 492 does not violate Article II,

Section 17 of the Tennessee Constitution.

This is not an express repeal, but rather a repeal by implication. “[W]ell-settled

principles of statutory construction make it clear that the most recently enacted statute

repeals by implication any irreconcilable provisions of the former act.” Vaughn, 202

S.W.3d at 118. Thus, both Tenn. Code Ann. § 40-35-501(h)(1) and § 39-13-204(e)(2) are

repealed by implication to the extent they require a release eligibility other than a

minimum of 51 years for a life sentence.

Furthermore, even if there was a problem with the caption of 1995 Tenn. Pub.

Acts, Ch. 492, the 1996 codification bill would have cured it. See State v. Chastain, 871

- 13 -

S.W.2d 661, 666 (Tenn. 1994) (“codification of a legislative enactment cures all defects

in the caption of the bill.”) (citing Harmon v. Angus R. Jessup Assos., Inc., 619 S.W.2d

522, 523 (Tenn. 1981)). See also1996 Tenn. Pub. Acts, Ch. 554, § 1.

Proportionality in Sentencing

Davis argues that a life sentence of 51 years destroys the distinction between life

and life without parole “by taking a person sentenced to life and making it

overwhelmingly likely that his fate will be the same as life without parole.” In other

words, Davis maintains that he is likely to die before he completes his 51 years, thus, he

claims, likening his sentence to a sentence of life without parole -– a sentence the jury did

not give him.

The cases Davis relies upon all deal with sentencing juveniles. Juveniles are

different where sentencing is concerned.

Roper,6 Graham,7 and Miller8 directly settled a number of controversies.

After these cases, it is clear that the Eighth Amendment prohibits the

imposition of the death penalty for crimes committed by juvenile

defendants, that life in prison without parole cannot be imposed on a

juvenile nonhomicide offender, and that mandatory life without parole

cannot be imposed on a juvenile who commits homicide without

consideration of the mitigating characteristics of youth. All of these results

rested on the notion that juveniles are constitutionally different from adults

for purposes of the imposition of harsh punishments.

State v. Null, 836 N.W.2d 41, 66 (Iowa 2013). Davis was 18 when he murdered Nick

Creson. Therefore, under Tennessee law, he was an adult. Tenn. Code Ann. § 37-1-

102(b)(5)(E).

In Guerrero, 2015 WL 2208546,

[t]he trial court sentenced the Defendant to two consecutive life sentences

and to nine consecutive fifteen-year sentences to be served consecutively to

the life sentences, for an effective sentence of two life terms plus 135 years.

Almost six years later, the Defendant filed a motion pursuant to Tennessee

Criminal Procedure Rule 36.1 requesting that the trial court correct an

illegal sentence because his life sentences requiring 100% service of sixty

6

Roper v. Simmons, 543 U.S. 551 (2005).

7

Graham v. Florida, 560 U.S. 48 (2010).

8

Miller v. Alabama, 567 U.S. 460 (2012)

- 14 -

years’ confinement less sentencing credits up to 15% were tantamount to

life sentences without the eligibility or possibility of parole. The trial court

summarily dismissed the motion for failure to state a colorable claim.

Guerrero, 2015 WL 2208546, at *1. The Court of Criminal Appeals concluded that the

sentence was not illegal. Id.

Based on the Defendant’s briefs, it appears he believes that he was

sentenced to life imprisonment with the possibility of parole, but our

statutes do not contain that terminology. See T.C.A. § 39-13-202(c)(1)-(3)

(stating the possible punishment for first degree murder includes death, life

imprisonment without the possibility of parole, and life imprisonment). The

Defendant received two life imprisonment sentences for two first degree

murders committed after July 1, 1995. The life imprisonment sentences

imposed do not entitle the Defendant to parole; however, Tennessee

statutes permit release from confinement after serving fifty-one years. See

id. § 40–35–501(i)(1). In comparison, defendants sentenced to life

imprisonment without the possibility of parole are not eligible for release

from confinement. See id. § 40-35-501(g). As a result, the life

imprisonment sentences imposed by the trial court are not the equivalent to

life imprisonment without the possibility of parole and are not in direct

contravention of any statute. We conclude that the court properly dismissed

the Defendant’s motion for a corrected sentence pursuant to Rule 36.1 and

that he is not entitled to relief.

Id. at *3 (emphasis omitted). In the instant case, the chancellor also found that there is a

meaningful distinction between a sentence of life and a sentence of life without parole. In

support of her opinion, she emphasized the following language from Tennessee’s pattern

jury instructions: “A defendant who receives a sentence of imprisonment for life shall not

be eligible for release until the defendant has served at least fifty-one (51) full calendar

years of such sentence. A defendant who receives a sentence of imprisonment for life

without parole shall never be eligible for release.” 7 TENN. PRAC. P ATTERN JURY

INSTR. T.P.I.-CRIM. 7.04(b) (footnote omitted).

In support of his argument, Davis presented life expectancy data in an attempt to

show that requiring incarceration for 51 years before allowing eligibility for release

means that a person receiving a life sentence has a 98.5% likelihood of dying before

getting out of prison. This, says Davis, effectively turns a life sentence into life without

parole. However, “most courts . . . have found that the life expectancy of a particular

defendant is irrelevant for the purposes of sentencing.” Cristina J. Pertierra, Do the

Crime, Do the Time: Should Elderly Criminals Receive Proportionate Sentences?, 19

NOVA L. REV. 793, 819 (1995). As one commentator put it:

- 15 -

There is probably a stronger legal and public policy basis for rejecting the

consideration of life expectancy and the proportionality argument for

leniency. Judges and juries probably should not be in the business of

calculating life expectancies, especially considering the unpredictability of

the myriad variables that may or may not contribute to life expectancy in a

particular individual. Imposition of sentences based on life expectancy may

also have a negative deterrent effect if potential elderly offenders view the

expected level of punishment for a crime as sufficiently low to justify the

risk. Finally, “pro-rating” sentences based on age and other factors relevant

to life expectancy necessarily results in highly variable sentences across a

group of offenders, potentially raising Fourteenth Amendment equal

protection concerns. While there is some difference of opinion, courts and

commentators overwhelmingly seem to agree that prison sentences need

not be proportional to life expectancy.

Dawn Miller, Sentencing Elderly Criminal Offenders, 7 NAELA J. 221, 245 (2011)

(footnotes omitted). See also United States v. Yousef, 327 F.3d 56, 163 (2d Cir. 2003)

(“Lengthy prison sentences, even those that exceed any conceivable life expectancy of a

convicted defendant, do not violate the Eighth Amendment’s prohibition against cruel

and unusual punishment when based on a proper application of the Sentencing Guidelines

or statutorily mandated consecutive terms.”); Alvarez v. State, 358 So.2d 10, 11

(Fla.1978) (“We reject the notion that an individual’s life expectancy should be used, or

was intended by the Legislature to be used, to mark the longest term which a particular

defendant should serve. Any sentence, no matter how short, may eventually extend

beyond the life of a prisoner.”); Greco v. State, 48 A.3d 816, 838 (Md. Ct. App. 2012)

(quoting Alvarez); State v. Jones, No. 2013AP1782-CR, 2014 WL 1884508, *3 (Wisc.

Ct. App. May 13, 2014) (“‘[T]he defendant’s life expectancy, coupled with a lengthy

sentence, while perhaps guaranteeing that the defendant will spend the balance of his or

her life in prison, does not have to be taken into consideration by the [trial] court.’”)

(quoting State v. Stenzel, 688 N.W.2d 20, 27 (Wisc. Ct. App. 2004)).

In State v. Hogg, 448 S.W.3d 877, 890 (Tenn. 2014), the Tennessee Supreme

Court discussed how appellate courts examine sentences:

When a defendant challenges the length, range, or manner of service of a

sentence, this Court reviews the trial court’s decision under an abuse of

discretion standard, with a presumption of reasonableness granted to

“within-range sentencing decisions that reflect a proper application of the

purposes and principles of our Sentencing Act.” This same deferential

standard applies to consecutive sentencing. Whether a defendant is

sentenced concurrently or consecutively is a matter primarily within the

trial court's discretion.

- 16 -

(citations omitted). In Hogg, the Supreme Court modified the defendant’s sentence “to

an effective term of 156 years.” Hogg, 448 S.W.3d at 891.

The Tennessee Criminal Sentencing Reform Act of 1989 contains two sections

that list its purposes and principles. The purposes of the Act, found in Tenn. Code Ann. §

40-35-102, include: “imposition of a sentence justly deserved in relation to the

seriousness of the offense,” “consistent treatment of all defendants,” “predictability,”

prevention of crime, “promote respect for the law,” “provid[e] an effective general

deterrent,” and “exclude all considerations respecting race, gender, creed, religion,

national origin and social status of the individual.” Tenn. Code Ann. § 40-35-102(1), (2),

(3), & (4). Each of these purposes counsels against using life expectancy as a factor in

sentencing.9

The Sentencing Reform Act lists its principles in Tenn. Code Ann. § 40-35-103. It

includes the principles that “sentences involving confinement should be based on . . .

[c]onfinement [being] necessary to avoid depreciating the seriousness of the offense or . .

. to provide an effective deterrence to others,” “[t]he sentence imposed should be no

greater than that deserved for the offense committed,” and “[i]nequalities in sentences

that are unrelated to a purpose of this chapter should be avoided.” Tenn. Code Ann. § 40-

35-103(1), (2) & (3). These principles also counsel against using life expectancy as a

factor in sentencing.10

Tennessee statutes and case law show that Tennessee, like many other states, does

not consider life expectancy when sentencing a defendant.

9

One commentator has observed that,

According to the life tables published in the Vital Statistics of the United States, the life

expectancy of women is longer than that of men, and men and women belonging to the

white race live longer than men and women belonging to the black race. Thus, the courts

would need to consider the sex and race of a defendant when calculating a particular

defendant’s life expectancy. . . . [O]ne must question exactly how far a court would have

to go in determining a particular defendant’s life expectancy. Would a court have to

consider the fact that the defendant lives near a nuclear power plant? Or that the

defendant resides in a dangerous neighborhood? What if the defendant has in all

probability shortened his life span by abusing drugs or alcohol?

Pertierra, 19 NOVA L. REV. at 816 (footnotes omitted).

10

The Sentencing Reform act provides that “youth or old age” may be a mitigating factor if the defendant

“lacked substantial judgment in committing the offense.” Tenn. Code Ann. § 40-35-113(6).

- 17 -

CONCLUSION

The judgment of the trial court is affirmed. This matter is remanded with costs of

appeal assessed against the appellant, Mr. Davis, for which execution may issue if

necessary.

________________________________

ANDY D. BENNETT, JUDGE

- 18 -