Opinion
No. M2001-01446-COA-R3-CV
Filed September 5, 2002 Rehearing Denied October 8, 2002
Appeal from the Chancery Court for Davidson County; No. 01-885-I; Irvin H. Kilcrease, Jr., Chancellor.
Affirmed and Remanded.
Thomas Dyer, Mountain City, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Dawn Jordan, Assistant Attorney General, for the appellee, State of Tennessee.
Ben H. Cantrell, P.J., M.S., delivered the opinion of the court, in which William B. Cain, J., joined. William C. Koch, Jr., J., filed a concurring opinion.
OPINION
The release eligibility date of a prisoner was extended by 30% after he assaulted a correctional employee. The prisoner petitioned for judicial review of the extension, arguing that it amounted to an unconstitutional violation of the ex post facto prohibition, double jeopardy, and separation of powers. The trial court dismissed his petition. We affirm.
I. A Disciplinary Infraction
Thomas Dyer was convicted of burglary and grand larceny in 1985, smuggling of contraband in 1986, and felony escape in 1990. He received separate sentences of imprisonment for each offense. On May 17, 1993, he came before the prison disciplinary board for assault on a staff member, and was convicted of the violation. As a consequence, the Release Eligibility Date (RED) on all his offenses was extended 30%.
On March 21, 2001, Mr. Dyer filed a petition in the Chancery Court of Davidson County, which he styled as a Petition for Judicial Review/Declaratory Judgment/Petition for Common Law Writ of Certiorari. He contended that the Department of Correction had exceeded its jurisdiction and acted illegally by extending the RED for his 1985 and 1986 offenses. He alleged that the policy that allowed the Department to extend the time he had to serve before becoming eligible for release was enacted in 1989, and that it therefore was a violation of the ex post facto prohibition to apply it to offenses committed before that date.
The Department filed a motion to dismiss on April 17, 2001, for failure to state a claim for which relief can be granted. See Tenn. R. Civ. P. 12.02(6). Mr. Dyer's response to the motion added allegations that the extension of his RED also violated his rights against double jeopardy, and that Tenn. Code Ann. § 40-35-501 and Tennessee Department of Correction Policy #502.02 (which authorize extensions to an inmate's RED) violate the separation of powers doctrine. See Tennessee Constitution Art. 2, § 2.
On May 24, 2000, the trial court dismissed the petition in its entirety. The chancellor found that the petition was not timely filed, and that in any case the Department had acted pursuant to its authority to defer an inmate's RED for violation of any of the rules of the Department of Correction. See Tenn. Code Ann. § 40-35-501(k). This appeal followed.
II. Timeliness and Jurisdiction
As the chancellor correctly observed, Tenn. Code Ann. § 27-9-102 requires that a petition for writ of certiorari be filed no later than sixty days from the date of the administrative action of which the petitioner complains. Failure to file within the statutory time limit results in the decision becoming final, which deprives the court of jurisdiction. See Fairhaven Corporation v. Tennessee Health Facilities Commission, 566 S.W.2d 885 (Tenn.Ct.App. 1976). The action that was challenged in this case occurred on May 17, 1993. The petition for certiorari was not filed until almost seven years later. It was clearly untimely.
We note also that two types of declaratory judgment actions have been recognized by our Legislature. The Declaratory Judgment Act, Tenn. Code Ann. § 29-14-102, has been held not to apply to suits against state entities such as the Tennessee Department of Correction. See Watson v. Tennessee Dept. Of Correction, 970 S.W.2d 494 (Tenn.Ct.App. 1998). A party may petition the court for a declaratory judgment against a state agency under the Uniform Administrative Procedures Act, Tenn. Code Ann. § 4-5-101, et seq., but only if the complainant has first petitioned the agency for a declaratory order, and the agency has refused to issue such an order. See Tenn. Code Ann. § 4-5-225. There is nothing in the record to indicate that Mr. Dyer petitioned the Department of Correction for a declaratory order. Thus, whether we consider his petition to be one for a writ of certiorari or for a declaratory judgment, it is clear that he is not entitled to relief.
III. Constitutional Questions
Mr. Dyer argues that a constitutional question can be raised at any time. That is not quite correct. It would be more accurate to say that normal procedural rules may sometimes be relaxed when a complaining party demonstrates that a challenged statute or rule is facially unconstitutional. See Caldwell v. State, 917 S.W.2d 662 (Tenn. 1996); Richardson v. Tenn. Board of Dentistry, 913 S.W.2d 446 (Tenn. 1995). Even though neither Tenn. Code Ann. § 40-35-501 nor Tennessee Department of Correction Policy #502.02 appear to be facially unconstitutional, we will briefly address the constitutional issues raised by the petitioner.
We note that this court has previously upheld both Tenn. Code Ann. § 40-35-501 and Tennessee Department of Correction Policy #502.02 against constitutional challenge. See Smith v. Campbell, 995 S.W.2d 116 (Tenn.Ct.App. 1999); Ogburn v. Tennessee Dept. of Correction, 983 S.W.2d 677 (Tenn.Ct.App. 1998).
A. Ex Post Facto Concerns
Mr. Dyer contends that he is entitled to serve each of his sentences in accordance with the laws in effect at the time of sentencing, and that because of the constitutional prohibition against ex post facto laws, his 1985 and 1986 sentences could not be altered by a Department of Correction regulation that was enacted in 1989. It is beyond dispute that a law that inflicts a greater punishment than the law attached to the crime when it was committed would be an ex post facto violation. See State v. Wyrick, 62 S.W.3d 751 (Tenn.Crim.App. 2001); Wheeler v. Tennessee Dept. of Correction, 36 S.W.3d 824 (Tenn.Ct.App. 2000); State v. Rogers 992 S.W.2d 393 (Tenn. 1999); Kaylor v. Bradley, 912 S.W.2d 728 (Tenn.Ct.App. 1995).
We note, however, that as part of the Criminal Sentencing Reform Act of 1982, the Tennessee Legislature provided that a prisoner's release eligibility date may be deferred at the discretion of the Commissioner, for a violation of any of the rules of the Department of Correction, with two limitations: The extension must not exceed the full sentence originally imposed by the court, and it must be imposed pursuant to regulations which give notice of the length of discretionary increases that may be imposed for a violation of each of the rules of the Department. See Tenn. Code Ann. § 40-35-501(k).
The ex post facto prohibition is based on considerations of basic fairness. It was established to ensure that individuals receive fair notice that certain behavior is unlawful, as well as the consequences of engaging in such behavior. Tenn. Code Ann. § 40-35-501 was enacted three years before Mr. Dyer's first offense. Thus, he should have been aware that his RED could be extended, depending on his conduct in prison. He acknowledges that Rule 502.02 was first promulgated in 1989, four years before his 1993 assault, and he does not dispute that it authorizes the Department to extend an inmate's RED up to 30% of his maximum sentence for the violation of certain rules. There is clearly no ex post facto violation here.
B. Double Jeopardy
Mr. Dyer argues that Tenn. Code Ann. § 40-35-501 authorizes multiple punishments for the same offense, and that this constitutes double jeopardy. He notes that escape and assault may be prosecuted in the criminal courts, and be the subject of disciplinary proceedings as well. The petitioner appears to lack standing to raise this issue, since his prior conviction for escape is not at issue in this case, and he does not allege that attempts were made to prosecute him criminally for his 1993 assault.
In any event, this issue has been litigated many times, and our courts have always reached the same conclusion. Disciplinary proceedings that do not lengthen the sentence a prisoner was serving at the time he breached the prison's rules are essentially administrative in nature. They are not in conflict with proceedings in the criminal courts which can result in a new conviction and new sentence for the defendant, even when the same conduct is the subject of both proceedings. See Ogburn v. Tennessee Dept. of Correction, 983 S.W.2d 677 (Tenn.Ct.App. 1998); Ray v. State, 577 S.W.2d 681 (Tenn.Crim.App. 1978); State ex rel. Turner v. Gore, 175 S.W.2d 317 (Tenn. 1943).
C. Separation of Powers
Mr. Dyer's separation of powers argument is based entirely upon a case from the Ohio Supreme Court, State ex rel Bary v. Russell, 729 N.E.2d 359 (Ohio 2000). In that case, the court found that an Ohio statute would allow that state's parole board to extend the length of an inmate's incarceration beyond the original judicially-imposed sentence. The court found this to be an encroachment upon the judicial power by the executive, and thus a violation of the separation of powers mandated by the Ohio constitution.
Even if we put aside the fact that in this case we are not dealing with Ohio statutes or the Ohio constitution, we find Mr. Dyer's situation to be quite different. The disciplinary board extended the amount of time he had to remain incarcerated within his original sentence before becoming eligible for release. It did not extend the length of his sentence, but changed one of the conditions under which it was to be served. The change was within both the parameters of a statute in effect at the time of his conviction, and the executive power to regulate discipline within the state's prisons. The separation of powers argument is without merit.
IV.
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, Thomas Dyer.
Thomas Dyer has filed a respectful and timely Petition to Rehear. He states that our opinion mistakenly asserted that he failed to petition the Department for a Declaratory Order. Upon further examination of the record, we are obligated to conclude that he is correct. The record shows that he indeed filed a Petition for Declaratory Order, and that the petition was denied. Thus, we were mistaken to conclude that we lacked jurisdiction to consider his Petition for a Declaratory Judgment under the UAPA.
However, our analysis of his case did not end with the question of jurisdiction. In our opinion, we discussed the three constitutional questions he raised on appeal, and found that none of them entitled him to the relief he sought. Two of those three questions (ex post facto concerns and double jeopardy) were included in his Petition for Declaratory Order, and were rejected by the Department on the basis of reasoning that was virtually identical to the reasoning we used in reaching the same conclusions. Nothing in the Petition to Rehear gives us reason to change those conclusions.
We note that in the current petition, Mr. Dyer advances yet another constitutional argument: that to order an extension of his release eligibility date through an administrative procedure rather than through a judicial trial amounts to an unconstitutional bill of attainder. As we stated in our opinion, the Criminal Sentencing Reform Act of 1982 provided that a prisoner's release eligibility date may be deferred at the discretion of the Commissioner. It thus appears that the possibility of an administrative extension of Mr. Dyer's RED was part of his original judicially-determined sentence, and thus that there is no constitutional violation, so long as the extension does not result in a sentence of greater duration than that imposed by the court.
The Petition to Rehear is denied.