Cavitt v. TDOC ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FREDERICK WAYNE CAVITT
Petitioner/Appellant,
)
)
)
FILED
) Appeal No. April 23, 1999
) 01-A-01-9712-CH-00713
VS. ) Cecil Crowson, Jr.
Appellate Court Clerk
) Davidson Chancery
) No. 97-2994-III
TENNESSEE DEPARTMENT OF )
CORRECTION, )
)
Respondent/Appellee. )
APPEAL FROM THE CHANCERY COURT OF DAVIDSON
COUNTY AT NASHVILLE, TENNESSEE
THE HONORABLE ELLEN HOBBS LYLE PRESIDING
FREDERICK WAYNE CAVITT
#108657
N.W.C.C. 3/B/202
Route 1, Box 660
Tiptonville, TN 38079
PRO SE/PETITIONER/APPELLANT
JOHN KNOX WALKUP
Attorney General and Reporter
MICHAEL E. MOORE
Solicitor General
PATRICIA C. KUSSMANN, BPR 15506
Assistant Attorney General
Civil Rights and Claims Division
425 Fifth Avenue North
Second Floor, Cordell Hull Building
Nashville, Tennessee 37243-0488
ATTORNEYS FOR RESPONDENT/APPELLEE
AFFIRMED AND REMANDED
PATRICIA J. COTTRELL, JUDGE
CONCUR:
KOCH, J.
CAIN, J.
OPINION
In this appeal, a state prisoner challenges the extension of his parole
eligibility date by the Department of Correction which resulted from a
disciplinary proceeding for infraction of department policies. Mr. Cavitt, the
Appellant, contends the 1991 extension increased his 1985 sentence ex post
facto. The trial court dismissed Mr. Cavitt’s complaint for declaratory judgment
for failure to state a claim upon which relief could be granted. We affirm.
I.
In 1985, Mr. Cavitt plead guilty to second degree murder and was
sentenced to 35 years imprisonment for an offense committed March 23, 1985.
He was to become eligible to be considered for parole after serving 30% of that
sentence. At the time of his offense and his sentencing, Tenn. Code Ann. § 40-
28-301 [enacted 1979, repealed by 1985 Tenn. Pub. Acts (1st E.S.), ch 5 § 7] was
in effect.1 That statute provided:
(h)(1) The release classification eligibility date
provided for in this section shall be the earliest date a
person convicted of a Class X felony shall be eligible
for release classification status, such date being
conditioned on the prisoner’s good behavior while in
prison. For a violation of any of the rules of the
department of correction or the institution in which the
person is incarcerated the commissioner of correction
or his designees, may defer the release classification
eligibility date so as to increase the total amount of
time a person must serve before becoming eligible for
1
The statutory provisions regarding parole eligibility dates and their
modification are now found at Tenn. Code Ann. § 40-35-501(k) (1998 Supp.)
which has remained in effect since its passage as part of the Criminal Sentencing
Reform Act of 1982. Both Appellant and the Department relied upon Tenn.
Code Ann. § 40-30-501(k) as codified in 1985. That provision deals with
persons convicted of felonies, but the more specific Class X felon provision in
Tenn. Code Ann. § 40-28-301 should be applied in analyzing Mr. Cavitt’s
situation. The two statutes do not differ substantively in any way relevant to the
issues raised in this appeal.
2
release classification status. This increase may, in the
discretion of the commissioner, be in any amount of
time not to exceed the full sentence originally imposed
by the court and shall be imposed pursuant to
regulations promulgated by the commissioner of
correction. [Acts 1979, ch. 318 § 20].
In 1985, the Department’s written policy outlining punishments which a
disciplinary committee was authorized to impose for violation of Department
policies did not include any extension of a prisoner’s parole eligibility date other
than through loss of sentence reduction credits.
Appellant states that on February 15, 1989, new Disciplinary Punishment
Guidelines were enacted. In relevant part, Policy 502.02 of these 1989 policies
provided:
“In all cases in which an inmate is found guilty of a
disciplinary offense that resulted in physical injury to
an employee, volunteer or visitor, in addition to any
other punishment imposed, the offender’s parole or
release eligibility date shall be extended by adding
thereto an additional thirty (30) percent (%) of the
offender’s original maximum sentence, or by
extending the inmate’s parole or release eligibility
date to the sentence expiration date, whichever is less.
On May 16, 1991, in an administrative proceeding before the disciplinary
committee, Mr. Cavitt was found guilty of assault which resulted in injury to a
correctional officer. In reliance on TDOC Policy 502.02, quoted above, the
disciplinary committee recommended that Mr. Cavitt be required to serve 60%
of his 35-year sentence, rather than the 30% previously required, before
becoming eligible for release on parole. That recommendation was approved by
the commissioner of correction on May 21, 1991.
Mr. Cavitt argues that by extending his parole eligibility date, the
Department imposed a greater or more severe punishment in 1991 than was
prescribed by law at the time of his original offense, conviction, and sentence in
1985. This action, he asserts, violates the ex post facto clause of Article I,
3
Section 10 of the U.S. Constitution and Article I, Section 11 of the Tennessee
Constitution. Specifically, Mr. Cavitt argues that the 1989 Department policy
authorizing extension of parole eligibility for specified disciplinary offenses was
not in effect at the time of his offense, conviction and sentencing and, therefore,
cannot be applied to him to alter his punishment to his disadvantage.
Mr. Cavitt filed a petition for declaratory judgment in the Chancery Court
for Davidson County pursuant to the Administrative Procedures Act, having
requested a declaratory order from the Department of Correction and having
been denied relief by the Department. See Tenn. Code Ann. § 4-5-224 (1998).
The Department filed a motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(6),
which the trial court granted. The trial court held that the policy authorizing
extension of parole eligibility is not an ex post facto law since it does not
increase the quantum of punishment. The court further held that the extension
of Mr. Cavitt’s parole eligibility date was the result of his violation of
Department policies, after notice that such extension was a potential punishment
for such violation, and not an enhancement of the punishment for his underlying
conviction.
II.
The United States Constitution, Article I, Section 10 forbids the states
from passing any ex post facto laws. The Constitution of Tennessee, Article I,
Section 11 contains a similar prohibition. Mr. Cavitt has brought claims under
both. The interpretations by the United States Supreme Court of the federal
constitutional provision and those of the Tennessee Supreme Court of the state
constitutional provision are complementary and consistent. Kaylor v. Bradley,
912 S.W.2d 728, 731 (Tenn. App. 1995).
The ex post facto prohibition is “aimed at laws that `retroactively alter the
4
definition of crimes or increase the punishment for criminal acts.’” California
Department of Corrections v. Morales, 514 U.S. 499, 504, 115 S. Ct. 1597, 1601,
131 L. Ed. 2d 588 (1995). An ex post facto law “changes the punishment, and
inflicts a greater punishment than the law annexed to the crime when
committed.” Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d 17(1981). The critical question in an ex post facto claim such as Mr. Cavitt’s is
“whether the law changes the punishment to the defendant’s disadvantage, or
inflicts a greater punishment than the law allowed when the offense occurred.”
State v. Pearson, 858 S.W.2d 879, 883 (Tenn. 1993).
Under both state and federal constitutions and cases interpreting them, two
factors must be present to establish a violation of the ex post facto prohibition:
(1) the law must apply retrospectively to events occurring before its enactment,
and (2) it must disadvantage the offender affected by it. State v. Ricci, 914
S.W.2d 475, 480 (Tenn. 1996); Kaylor v. Bradley, 912 S.W.2d 728, 732 (Tenn.
App. 1995); State v. Pearson 858 S.W.2d 879, 882 (Tenn. 1993) (quoting Miller
v. Florida, 482 U.S. 423, 430, 107 S. Ct. 2446, 2451, 96 L. Ed. 2d 351 (1987).
III.
Actions which extend parole eligibility can implicate the ex post facto
clause. “The State cannot, and indeed does not, argue that retroactive alterations
of the criteria for parole eligibility cannot implicate ex post facto concerns.
Eligibility for parole consideration is part of the law annexed to the crime when
committed.” Kaylor v. Bradley, 912 S.W.2d at 732, citing Weaver v. Graham,
450 U.S. at 32-33, 101 S.Ct. at 966 (other citations omitted.). As the U.S.
Supreme Court recently stated:
As we recognized in Weaver, retroactive alteration of
parole or early release provisions, like the retroactive
application of provisions that govern initial
sentencing, implicates the Ex Post Facto Clause
5
because such credits are “one determinant of
petitioner’s prison term ... and ... [the petitioner’s]
effective sentence is altered once this determinant is
changed.” Ibid. We explained in Weaver that the
removal of such provisions can constitute an increase
in punishment, because a “prisoner’s eligibility for
reduced imprisonment is a significant factor entering
into both the defendant’s decision to plea bargain and
the judge’s calculation of the sentence to be imposed.”
Lynce v. Mathis, 519 U.S. 433, 117 S. Ct. 891, 137 L. Ed. 2d 63 (1997).
In the instant case, the analysis of any ex post facto implication of Mr.
Cavitt’s claims must begin with Tenn. Code Ann. § 40-28-301(h)(1), quoted
above, which was part of “the law annexed to the crime” which Mr. Cavitt
committed in 1985.2 By its plain words, that statute put offenders on notice that
their release classification or parole consideration eligibility date was
“conditioned on the prisoner’s good behavior while in prison” and that the
commissioner of correction could defer an inmate’s release eligibility date for
a violation of department rules “so as to increase the total amount of time a
person must serve before becoming eligible for release classification status.”
Tenn. Code Ann. § 40-28-301.
Thus, at the time of Mr. Cavitt’s offense, the law clearly allowed deferral
of parole eligibility on the basis of an inmate’s conduct while incarcerated. The
Department’s adoption of Policy 502.02 did not retroactively increase the
punishment for offenses committed after the adoption of Tenn. Code Ann. § 40-
28-301 in 1979. From the moment he was sentenced in 1985, Mr. Cavitt’s
release eligibility was contingent upon his good behavior in prison.
2
Tenn Code Ann. § 40-35-501(k), applying to all felons, was also in
effect at the time Appellant committed his offense and was codified then as
Tenn. Code Ann. § 40-35-501(h).
6
IV.
The principle on which ex post facto prohibitions are based is one of
fairness. Individuals have a right to fair warning of the conduct which will give
rise to criminal penalties. Marks v. United States, 430 U.S. 188, 87 S. Ct. 990,
51 L. Ed. 2d 260 (1977). This includes the right to fair warning of the nature and
severity of the possible penalties involved. As the U.S. Supreme Court has
noted:
Critical to relief under the Ex Post Facto Clause is not
an individual’s right to less punishment, but the lack
of fair notice and governmental restraint when the
legislature increases punishment beyond what was
prescribed when the crime was consummated.
Weaver v. Graham, 450 U.S. at 30-31, 101 S.Ct. At 965, 67 L. Ed. 2d 17.
Mr. Cavitt’s parole eligibility date was deferred because he was found to
have assaulted a correctional officer, causing him injuries. Thus, the extension
of his parole eligibility date was not the result of a legislative or administrative
enactment which increased his punishment for his original 1985 criminal
offense. Rather, it was the result of his 1991 conduct while incarcerated. At the
time he committed his assault, TDOC Policy 502.02 had been in effect for two
years. Mr. Cavitt clearly had fair warning of the consequences of an assault
before he committed the assault.
In Reinholtz v. Bradley, 945 S.W.2d 727 (Tenn. App. 1996), an inmate
challenged the extension of his release eligibility date based upon another
provision of Policy 502.02 which authorized such extension when an inmate is
found guilty of the disciplinary offense of escape. This Court upheld the
extension of his release eligibility date against an ex post facto challenge. This
opinion is consistent with Reinholtz.
We hold that the extension of Appellant’s parole eligibility date on the
7
basis of his 1991 injurious assault on a correctional officer as authorized by
policy 502.02 did not violate the ex post facto prohibition of federal and state
constitutions because: 1) T.C.A. § 40-28-301(h)(1) was part of the law annexed
to the crime he committed in 1985 and clearly notified offenders that their parole
eligibility could be negatively impacted by their conduct while incarcerated; 2)
Policy 502.02 was effective prior to the assault, thereby giving Appellant fair
warning of the potential consequences of his actions; and 3) the extension was
the result of Appellant’s 1991 conduct and not the result of a retrospective
application of increased punishment to his 1985 criminal offense.
V.
The order of the trial court dismissing Appellant’s action is affirmed. This
matter is remanded to the Chancery Court of Davidson County for any further
proceedings consistent with this opinion. Costs of this appeal are taxed to
Appellant.
_______________________________
PATRICIA J. COTTRELL, JUDGE
CONCUR:
____________________________
WILLIAM C. KOCH, JUDGE
____________________________
WILLIAM B. CAIN, JUDGE
8