Michael Bass v. Jack Morgan, Warden ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1998 SESSION
October 29, 1998
Cecil W. Crowson
Appellate Court Clerk
MICHAEL E. BASS, ) No. 01C01-9802-CC-00066
)
Appellant )
) Hickman County
vs. )
) Honorable Donald P. Harris, Judge
STATE OF TENNESSEE, )
) (Habeas Corpus)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL E. BASS JOHN KNOX WALKUP
(Pro Se) Attorney General & Reporter
Turney Center Industrial Prison
Route 1 TIMOTHY F. BEHAN
Only, TN 37140-9709 Assistant Attorney General
Criminal Justice Division
425 Fifth Ave. North
2d Floor, Cordell Hull Bldg.
Nashville, TN 37243-0493
JOSEPH D. BAUGH, JR.
District Attorney General
P.O. Box 937
Franklin, TN 37065-1469
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT
JUDGE
OPINION
The petitioner, Michael E. Bass, appeals the trial court’s denial of his
petition for a writ of habeas corpus. The trial court did not appoint counsel and
dismissed the petition without an evidentiary hearing. In this appeal, the petitioner
contends that although he was convicted and sentenced in 1981, the provisions of
the 1989 Sentencing Reform Act apply and his sentence has expired. W e affirm
the judgment of the trial court.
The record does not include the original judgment. The pleadings
indicate that the petitioner was convicted of second-degree murder, a Class X
felony, on January 8, 1981. The petitioner received a life sentence. This court
affirmed his conviction and sentence in State v. Michael E. Bass, No. 82-198-III
(Tenn. Crim. App., Nashville, July 8, 1983). In 1982 and again in 1989, the state
legislature made wide-ranging changes to the sentencing laws. In November, 1997,
the petitioner filed this petition for writ of habeas corpus asserting that
(1) the legislature has mandated the
application of the 1982 and 1989
sentencing reform acts to his sentences,
(2) his constitutional rights to equal protection
and due process require the application
of the 1989 Criminal Sentencing Reform
Act to his sentence, and
(3) the passage of a more lenient sentencing
structure without extending its provisions
to those who were sentenced under
harsher standards results in cruel and
unusual punishment in violation of the
Eighth Amendment to the United States
Constitution.
The trial court dismissed his petition without a hearing on December 12, 1997. In
a thoughtful and thorough memorandum of law, the trial judge found that the 1989
Act did not affect penalties imposed before the Act’s effective date, that section 39-
11-112 has no bearing on the petitioner’s sentence, that the state has a legitimate
interest in the finality of criminal convictions, and that the exclusion of those
sentenced prior to 1982 from the Act’s provisions has a reasonable relationship to
a legitimate state interest. We agree.
2
The petitioner’s position stems from the fact that pursuant to the 1989
Act, the sentencing range for a Range I offender convicted of second-degree
murder is not less than fifteen (15) nor more than twenty-five (25) years. Tenn.
Code Ann. § 40-35-112(a)(1) (1997).1 In 1981, the petitioner, a first-time offender,
was sentenced to life imprisonment and because second-degree murder was
defined as a Class X felony, his sentence is not subject to reduction “for good,
honor or incentive or other sentence credits of any sort.” Tenn. Code Ann. § 39-
5403 (Supp. 1979) (repealed 1982). The petitioner contends that he has served in
excess of eighteen years as a model prisoner, and, therefore, under current
sentencing law, he is entitled to immediate release.2
First, we must point out that in this state the remedy of habeas corpus
is very limited in scope. The writ, as codified at Tennessee Code Annotated
sections 29-21-101 to -130, will issue only in the case of a void judgment or to free
a prisoner held in custody after his term of imprisonment has expired. State ex rel.
Hall v. Meadows, 215 Tenn. 668, 675, 389 S.W.2d 256, 259 (Tenn. 1965). The
purpose of a habeas corpus petition is to contest void and not merely voidable
judgments. Archer v. State, 851 S.W.2d 157, 163 (Tenn. 1993). Habeas corpus
relief is available only when it appears on the face of the judgment or record of
proceedings upon which the judgment is rendered that the convicting court was
without jurisdiction or authority to sentence the defendant or that the defendant’s
sentence has expired. Id. at 164.
In this instance, the petitioner alleges that his sentence has expired.
We cannot agree. This court has previously addressed the issues the petitioner
raises in this appeal. See State ex rel. Stewart v. McWherter, 857 S.W.2d 875(Tenn. Crim. App. 1992); Jerome Sydney Barrett v. State, No. 02C01-9508-CC-
1
The 1982 Act changed neither the penalty for second-degree
murder nor its classification as a Class X felony. See Tenn. Code Ann. § 39-1-
701 and 39-2-212 (1982) (repealed 1989).
2
The petitioner has attached numerous letters, certificates and other
documents to support his contention that his conduct has been exemplary.
3
00233 (Tenn. Crim. App., Jackson, Feb. 27, 1997); Patrick Simpson v. State, No.
01C01-9203-CR-00098 (Tenn. Crim. App., Nashville, Nov. 18, 1992). Our earlier
rulings control the results in this case.
The language of Tennessee Code Annotated section 40-35-117(c) is
clear: “For all persons who committed crimes prior to July 1, 1982, prior law shall
apply and remain in full force and effect in every respect, including, but not limited
to, sentencing, parole and probation.” In State ex rel. Stewart, this court held that
the “1989 Sentencing Act provides that it applies only to those offenders who are
sentenced after its effective date” on November 1, 1989. State ex rel. Stewart, 857
S.W.2d at 876. Although the 1989 Act benefited some offenders who committed
their crimes between 1982 and 1989, the Act’s provisions do not apply to the
petitioner. See Tenn. Code Ann. § 40-35-117(b)(1997). The 1989 Act did “not
affect rights and duties that matured, penalties that were incurred, or proceedings
that were begun before its effective date.” 1989 Tenn. Pub. Acts ch. 591, § 115.
Thus the petitioner, who was convicted and sentenced prior to July 1, 1982, remains
“under the prior law . . . in every respect, including, but not limited to, sentencing,
parole and probation.” Tenn. Code Ann. § 40-35-117(c).
Tennessee Code Annotated section 39-114 (1975), which was
replaced by section 39-1-105 (1982) and later by section 39-11-112 (1989) does
not require the state to reduce his sentence. The statute in effect at the time of the
petitioner’s conviction provided that
Whenever any penal statute or penal legislative act of
the state is repealed or amended by a subsequent
legislative act, any offense, as defined by such statute
or act being repealed or amended, committed while
such statute or act was in full force and effect shall be
prosecuted under such act or statute in effect at the
time of the commission of the offense. In the event the
subsequent act provides for a lesser penalty, any
punishment imposed shall be in accordance with the
subsequent act.
Tenn. Code Ann. § 39-114 (1975) (emphasis added). This provision applies only
to those cases in which the accused is to be prosecuted under the substantive law
4
in effect at the time of the offense and a new statute, calling for a lesser
punishment, is enacted before the imposition of the punishment. State ex rel.
Stewart, 857 S.W.2d at 877. The term “prosecution” does not include enforcement
of a sentence. Barrett, No. 02C01-9508-CC-00233, slip op. at 5. The statute is not
relevant to those cases in which judgment was entered and sentence imposed prior
to passage of the new law. Id. The 1989 statute is identical to the earlier law
except that it contains an additional clause excluding from its provisions those
convicted of offenses before July 1, 1982.3 Therefore, even if the statute allowed
for the reduction of a previously imposed sentence in some cases, it would not grant
relief to this petitioner. The petitioner is entitled to no reduction of his sentence
under these statutory provisions.
Next we address the petitioner’s contention that his sentence violates
his rights under the constitutions of the United States and the State of Tennessee.
The gist of the petitioner’s constitutional argument is that his lengthier sentence
denies him equal protection and due process under Article 11, section 8 of the
Tennessee Constitution and the Fourteenth Amendment to the United States
Constitution which prohibit legislation that provides favorable treatment to any
individual or class of individuals. Equal protection requires that all persons similarly
situated must be treated alike. State ex rel. Stewart, 857 S.W.2d at 876.
Legislatures, however, may treat a class of persons differently so long as the
classification has a reasonable relationship to a legitimate state interest. Doe v.
Norris, 751 S.W.2d 834, 841 (Tenn. 1988). In State ex rel. Stewart, this court found
that the state has a legitimate interest in preserving the finality of criminal
judgments. Reconsideration of all cases involving sentences imposed before
November 1, 1989 but which are presently being served by confinement, parole or
probation, would constitute opening “a virtual Pandora’s box ” that would disrupt the
3
The last sentence of section 39-11-112 reads: “Except as provided
under the provisions of § 40-35-117, in the event the subsequent act provides for
a lesser penalty, any punishment imposed shall be in accordance with the
subsequent act. “ Tenn. Code Ann. § 39-11-112 (1997) (emphasis added).
5
judicial system. State ex rel. Stewart, 857 S.W.2d at 877 (quoting State ex rel.
Bobby L. Crum v. Ned McWherter, No. 02C01-9108-CC-00181, slip op. at 4 (Tenn.
Crim. App., Jackson, May 13, 1992)).4 Because a reasonable relationship exists
between the legislative decision to exclude those who were sentenced prior to 1982
from the provisions of the 1989 Act and society’s interest in preventing a wholesale
disruption of the criminal justice system, the constitutional right to equal protection
and due process are not violated.
In a related argument, the petitioner asserts that the great disparity
between the sentence he is currently serving and that which he would serve under
the 1989 Act causes psychological torment of mind as well as of body which
amounts to cruel and unusual punishment under the Eighth Amendment to the
United States Constitution. The Eighth Amendment, however, prohibits sentences
that are disproportionately severe when compared to the crime committed. Solem
v. Helm, 463 U.S. 277, 297, 103 S. Ct. 3001, 3011 (1983). The fact that a penalty
is reduced by new legislation does not mean that the sentence under the prior law
was disproportionate to the subject crime. Barrett, No. 02C01-9508-CC-00233, slip
op. at 7; Patrick Simpson v. State, No. 01C01-9203-CR-00098, slip op. at 7 (Tenn.
Crim. App., Nashville, Nov. 18, 1992). The petitioner has cited no authority to
demonstrate that a life sentence is unconstitutionally disproportionate for the
offense of second-degree murder. We have found none. See Simpson, slip op. at
7. We do not find the petitioner’s sentence constitutionally infirm.
A trial court is not required to conduct an inquiry into the allegations
raised in a petition for habeas corpus if the petition fails to state a cognizable claim.
4
In Crum, the petitioner received a life sentence for aggravated
kidnapping in January, 1982. State ex rel. Bobby L. Crum, slip op. at 2. He
argued that under the 1989 act, he would be treated as a Range II, Class A
offender subject to a range of punishment of twenty-five to forty years. Slip op.
at 4. As we point out in Crum, determination of which classification applied and
development of the evidence relevant to sentencing under the 1989 Act would
require that new sentencing hearings be held in each case. We concluded that
society should not be forced to undergo such a disruption of its justice system.
Id.
6
See State ex rel. Byrd v. Bomar, 381 S.W.2d 280 (Tenn. 1964); Tenn. Code Ann.
§ 29-21-109 (1980). A petitioner has the burden of establishing by a
preponderance of the evidence that the judgment is void or that his term of
imprisonment is expired. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim.
App. 1994).
In this instance, the petitioner does not allege that the original
judgment is void, and he has not alleged any facts indicating that his term of
imprisonment has expired. Even if every factual allegation of his petition is taken
as true, he is not entitled to habeas corpus relief. The trial court did not err by
dismissing his petition without an evidentiary hearing.
We affirm the judgment of the trial court.
__________________________
CURWOOD W ITT, Judge
CONCUR:
______________________________
GARY R. WADE, Presiding Judge
______________________________
THOMAS T. W OODALL, Judge
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