Butler v. Dept. of Correction ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
March 12, 1999
CHARLES A. BUTLER, ) Cecil Crowson, Jr.
) Appellate Court Clerk
Petitioner/Appellant, )
) Appeal No.
) 01-A-01-9804-CH-00172
VS. )
) Davidson Chancery
) No. 97-2826-III
TENNESSEE DEPARTMENT OF )
CORRECTION, )
)
Respondent/Appellee. )
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR
CHARLES A. BUTLER #136479
Northeast Correctional Center
P. O. Box 5000
Mountain City, Tennessee 37683
Pro Se/Petitioner/Appellant
JOHN KNOX WALKUP
Attorney General and Reporter
MICHAEL L. HAYNIE
Assistant Attorney General
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
Attorney for Respondent/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
KOCH, J.
CAIN, J.
OPINION
An inmate sentenced to seventy-five years imprisonment under the
Class X law filed a petition for writ of certiorari and for declaratory judgment, claiming
that he was entitled to have his sentence recalculated under the more lenient statute
that was enacted after he was sentenced. The trial court dismissed the petition. We
affirm.
I. A Change in the Sentencing Law
Charles A. Butler was convicted of aggravated assault, burglary with a
firearm, and robbery with a deadly weapon. The date of these offenses was June 18,
1987. He was sentenced on May 26, 1989, and was ordered to serve ten years for
the assault, fifteen years for the burglary, and fifty years for the armed robbery, an
offense which was classified as a Class X felony both at the time the crime was
committed and the time of sentencing. The sentences were ordered to run
consecutively, for a total sentence of seventy-five years. On November 1, 1989, the
Class X felony law was repealed, and was replaced by the more lenient Criminal
Sentencing Reform Act of 1989, Tenn. Code Ann. § 40-35-101 et seq.
On May 15, 1997, Mr. Butler submitted a petition for a declaratory order
to the Department of Correction, asking the Department to release him from custody
immediately. He argued that he was entitled to be resentenced under the Criminal
Sentencing Reform Act of 1989, on both statutory and constitutional grounds; that
under the 1989 Act, the maximum penalty he could receive for the armed robbery
would be twenty-five years; and that the application to the reduced sentence of certain
sentence credits he had earned, and other credits he claimed to be entitled to,
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rendered him eligible for immediate release. The Department denied his petition on
July 21, 1997.
On August 22, 1997, Mr. Butler filed a timely petition, styled as a
“Petition for Judicial Review, Declaratory Judgment and Writ of Certiorari” in the
Chancery Court of Davidson County. His petition repeated the same arguments that
were contained in his petition for a declaratory order, though with a bit more detail,
and added the contention that the Department had exceeded its jurisdiction, and had
acted “unconstitutionally, illegally, fraudulently and arbitrarily” by denying his earlier
petition.
The Department filed a motion to dismiss the petition on the ground that
it failed to state a claim upon which relief could be granted. On March 3, 1998, the
trial court granted the defendant’s motion. This appeal followed.
II. The Statutory Argument
Mr. Butler argues on appeal that a law in effect at the time he was
sentenced entitles him to receive the benefit of any subsequent statutory change in
sentencing. He also argues that the State’s failure to treat him in the same manner
as those sentenced after November 1, 1989 was a violation of his constitutional equal
protection rights. Both of those arguments have been examined by our courts in
earlier cases, and were found to be without merit.
Mr. Butler’s bases his statutory argument upon Tenn. Code Ann. § 39-1-
105. This act, repealed in 1989, and reenacted as Tenn. Code Ann. § 39-11-112 read
as follows:
Repealed or amended laws -- Application in prosecution
for offense.-- 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
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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.
In the case very similar to this one, State ex rel. Stewart v. McWherter,
857 S.W.2d 875 (Tenn. Crim. App. 1992), the court analyzed Tenn. Code Ann. § 39-
1-105, and determined it to apply only to active prosecutions. Thus, only those who
had not been sentenced prior to the effective date of a law reducing the penalty for
their crime would receive the benefit of the more lenient law; those who had already
been sentenced would not have their sentences altered.
As the court noted, this interpretation is consistent with the enabling
legislation for the 1989 Sentencing Act which provides that the “act shall not affect
rights and duties that matured, penalties that were incurred, or proceedings that were
begun before its effective date.” 1989 Public Acts ch. 591 § 115. Further, Tenn.
Code Ann. § 40-35-117 specifically limits the application of the Act to those individuals
sentenced after its effective date of November 1, 1989.
III. The Constitutional Argument
The appellant contends that the statute violates his equal protection
rights under the Fourteenth Amendment of the U.S. Constitution, and under Article XI,
Section 8 of the Tennessee Constitution. He argues that no legitimate governmental
purpose is served by incarcerating him for fifty years, when another individual
sentenced for an identical crime could be sentenced to no more than twenty-five
years, just because he was sentenced after November 1, 1989. Mr. Butler argues (as
did Mr. Stewart) that strict constitutional scrutiny should be applied to his claim
because of the liberty interest at stake. See Doe v. Norris, 751 S.W.2d 834 (Tenn.
1988).
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In the alternative, he argues that even if we do not find a fundamental
right to be at stake, and we therefore apply the more relaxed “rational basis test” to
his claim, we would still be required to resentence him, because the State can claim
no possible rational relationship between classifications based upon date of
sentencing, and any legitimate state interest. See Massachusetts Board of
Retirement v. Murgia, 427 U.S. 307 (1976); Plyler v. Doe, 457 U.S. 202 (1982).
In the Stewart case, supra, the Court of Criminal Appeals held that the
strict scrutiny test did not apply, because the prisoner had lost the relevant portion of
his fundamental right to personal liberty by virtue of his lawful conviction. We agree
with the Court of Criminal Appeals.
The court went on to say, however, that even if it applied the strict
scrutiny test to the prisoner’s claim, it would still have to uphold the constitutionality
of the distinction created by Tenn. Code Ann. § 40-35-117, because of a compelling
state interest which it explained as follows:
There is a legitimate state interest at stake in not allowing the
reopening of a virtual Pandora's box of all cases involving
sentences imposed before November 1, 1989, but which are
presently being served by confinement, parole or probation.
Society has a strong interest in preserving the finality of
criminal litigation resulting in a conviction and sentence which
were valid at the time of their imposition. The wholesale
unsettling of final judgments of conviction and sentence
which would occur if the 1989 Act were applicable as the
petitioner claims is a price the legislature was justified in not
paying when it provided that the Act would not apply to
previously sentenced offenders.
857 S.W.2d at 877.
Mr. Butler criticizes this reasoning. He cites the statutes creating the
Parole Eligibility Review Board and permitting Class X offenders to sign waivers and
receive sentence reduction credits under new law as two examples of the legislative
willingness to open “a pandora’s box” of old cases, and thus implies that the
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legislature itself has found the governmental interest discussed above less than
compelling.
However, we disagree. We regard the legislature’s actions as an
attempt to balance competing, but equally legitimate governmental interests. It
wished to relieve prison overcrowding without endangering the public, while at the
same time preserving the finality of validly imposed sentences. To accomplish this,
it enacted statutes that are far more narrowly focused than would be the wholesale
resentencing of those convicted under the Class X laws. It opened the lid of
pandora’s box to the extent it believed necessary, and cannot be compelled by virtue
of that action to open it further.
Mr. Butler argues that the appellee’s interpretation of the Sentencing
Reform Act of 1989 undermines the legislature’s stated goal of reducing prison
overcrowding. He refers us to the case of State v. Ashby, 823 S.W.2d 166 (Tenn.
1991), in which our Supreme Court reversed a sentence of incarceration after a broad
discussion of sentencing considerations, including the State’s interest in reducing
overcrowding.
However the Ashby case involved the proper application of the
Sentencing Reform Act of 1989 to a defendant who had been sentenced under that
Act on November 15, 1989. The Supreme Court asserted that the question of prison
overcrowding should have been part of the equation considered by the trial court in
its original sentence. That case did not involve the assertion of a right to be
resentenced because of a change in the law. Thus the opinion in Ashby does not
conflict with Stewart, despite Mr. Butler’s argument to the contrary. The two cases are
easily distinguishable on the facts, as well as on the law which is under examination.
IV. Sentence Reduction Credits
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Finally, the trial court dismissed Mr. Butler’s claim that he was entitled
to Good Conduct Sentence Credits, Prisoner Performance Credits, and additional
sentence credits under the Inmate Incentive Program, pursuant to Tenn. Code Ann.
§§ 41-21-228, 229 and 230. As the trial court pointed out, each of these statutes was
repealed in 1985, prior to the date of his offense, and therefore they did not apply to
him.
Mr. Butler again brings up sentence reduction credits on appeal, but now
bases his argument on whether or not he was “‘fully informed’ of his right to sign (or
not to sign) a waiver.” This argument was not presented in the trial court, and as it is
being raised for the first time on appeal, this court is not required to consider it. Irvin
v. Binkley, 577 S.W.2d 677 (Tenn. App. 1979).
However it appears that Mr. Butler is referring to the fact that the
Department of Correction is authorized to continue calculating sentence credits
according to the scheme established by Tenn. Code Ann. §§ 41-21-121 through 41-
21-233, for inmates who have not waived that right in order to receive the benefits of
sentence reduction credits under the later-enacted Tenn. Code Ann. § 41-21-236. But
the right to receive credits under the repealed statutes (and thus the right to sign a
waiver) is limited to those whose offenses occurred when those statutes were still in
effect. Thus the argument is without merit.
V.
The order of the trial court is affirmed. Remand this cause to the
Chancery Court of Davidson County for further proceedings consistent with this
opinion. Tax the costs on appeal to the appellant.
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_________________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
_____________________________
WILLIAM C. KOCH, JR., JUDGE
_____________________________
WILLIAM B. CAIN, JUDGE
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