Opinion
Appeal No. M1999-00540-COA-R3-CV.
November 10, 1999.
Appeal From The Chancery Court Of Davidson County, At Nashville, Tennessee, The Honorable Irvin H. Kilcrease, Jr., Chancellor, Davidson Chancery No. 98-2241-I.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDEDCARL E. JORDAN, pro se.
PAUL G. SUMMERS, Attorney General and Reporter, MICHAEL E. MOORE, Solicitor General, REBECCA MILLER WARFIELD, Assistant Attorney General, Attorneys for Appellee.
Carl E. Jordan, a pro se inmate, (Jordan) has appealed from the trial court's grant of a dismissal to the Commissioner of the Tennessee Department of Correction, (TDOC) in this action regarding the application of sentencing guidelines. Based upon the following, the trial court's grant of TDOC's motion is reversed in part and affirmed in part.
TDOC's Motion to Dismiss was treated as a Motion for Summary Judgment by the trial court.
Facts and Procedural History
This cause of action was originally commenced on July 24, 1998, in the Chancery Court of Davidson County, Tennessee. On that date, Jordan filed a Petition for Declaratory Judgment seeking review of the TDOC's denial of his request for a declaratory order regarding his parole dates. Jordan argued that he is entitled to sentence reduction credits because the TDOC erroneously applied a written waiver, Class X felony status, imposng a 35% release elegibility date. Jordan claimed that TDOC's error in calculating his sentence resulted in a violation of his rights of due process and equal protection. The trial court dismissed Jordan's petition on TDOC's motion. Jordan bases his claim for relief on the following facts.
Jordan is an inmate at Riverbend Maximum Security Institute in Nashville, Tennessee. He is presently serving a thirty-five year sentence for aggravated rape, second degree murder, and armed robbery. Jordan and a co-conspirator committed these crimes on July 11, 1980. Jordan pled guilty to the above charges and was sentenced to forty years at forty percent pursuant to Tenn. Code Ann. § 40-28-301 (repealed).
Tenn. Code Ann. § 40-28-301 (repealed) dealt with the probation, parole, and pardons of Class X felony offenders. Specifically, the statute governed the service of sentence, release or other program eligibility, and the release classification eligibility date of offenders.
At the time Jordan committed these crimes, they were classified as Class X felonies pursuant to Tenn. Code Ann. § 39-1-702. Therefore, on January 23, 1981, when Jordan began serving his sentence, he was subject to the Class X Felony Act of 1979. Tenn. Code Ann. § 39-1-701 et. seq. (repealed). As a Class X felon, Jordan's sentence could not be reduced by good credit, honor or incentive credit, or any other sentence credit of any sort. Tenn. Code Ann. § 39-1-703(2) (repealed).
The statute under which Jordan was sentenced, Tenn. Code Ann. § 40-28-301, was partially repealed and amended in 1985. The new amendment stated: "Notwithstanding the provisions of this chapter to the contrary, a person convicted of a Class X felony shall be eligible to receive prisoner performance sentence credits (PPSC) as provided by Tennessee Code Annotated, 41-21-230 to reduce the expiration date of such person's sentence. The provisions of this subsection shall not affect the release classification eligibility date of Class X offenders." Tenn. Code Ann. § 40-28-301(I) (repealed); see also Tenn. Code Ann. § 41-21-230.
In addition, a new statute that dealt generally with sentence reduction credits was enacted in 1985. Tenn. Code Ann. § 41-21-236. This statute allowed Class X felons whose crimes were committed on or after December 11, 1985, to earn prisoner sentence reduction credits (PSRC) that would affect release eligibility and sentence expiration dates. Class X felons such as Jordan, whose crimes were committed prior to December 11, 1985, had to sign a written waiver in order to be eligible under the statute. Tenn. Code Ann. § 41-21-236(c)(3). The waiver waived the felon's right to serve the sentence under the law in effect at the time the crime was committed. Id.
In February of 1986, Jordan signed a waiver to earn PSRCs as required under Tenn. Code Ann. § 42-21-236(c)(3). The effect of this waiver was to make Jordan subject to the Criminal Sentencing Reform Act of 1982, rather than the Class X Felony Act. Pursuant to the Criminal Sentence Reform Act, Jordan's release eligibility date was recalculated from forty percent to thirty-five percent of his forty year sentence. Tenn. Code Ann. § 40-35-101 et. seq. (repealed).
On May 2, 1986, Jordan's guilty plea was vacated by the Court of Criminal Appeals. The court remanded Jordan's case to the trial court for trial or for the entry of new pleas. On September 20, 1986, Jordan again pled guilty to aggravated rape, second degree murder, and armed robbery. He was then sentenced to thirty-five years, to be served concurrently. According to Jordan, he chose to forgo trial based on an agreement with the assistant district attorney prosecuting his case. Under this agreement, Jordan would enter pleas to the charges if his new sentence was imposed under the law in effect prior to the Class X Felony Act of 1979.
Jordan asserts that the statutes applicable to his sentence are: Tenn. Code Ann. § 40-28-115 et seq.; § 41-21-212(b); § 41-21-214(b). Jordan claims that under these statutes he would have been entitled to probationary, regular, and mandatory parole, as well as several different types of sentence credits.
In November 1986, after Jordan began serving under the new sentence, he received a sentence summary sheet from the TDOC. According to the summary, Jordan's waiver under his previous sentence pursuant to Tenn. Code Ann. § 42-21-236(c)(3) was applied to his new sentence. The new sentence was calculated under both the Class X Felony Act of 1979 and the Criminal Sentence Reform Act of 1982. Under both these methods, Jordan's release eligibility date was based on a thirty-five year sentence at thirty-five percent. The sentence was not calculated under the statutes in effect prior to the Class X Felony Act.
Beginning in January of 1998, Jordan filled out referral forms to his case manager at the TDOC. The subject of these forms was Jordan's complaint regarding the recalculation of his parole dates. Jordan claimed that TDOC had erroneously applied the Class X Felony Act to his sentence. In addition, Jordan claimed that his release eligibility date at thirty-five percent was not correct. Finally, Jordan claimed that the written waiver under his old sentence should not have been reapplied to the new sentence without his permission, and therefore should be rescinded.
After receiving an unsatisfactory response to his efforts, Jordan filed a Petition for Declaratory Order with the TDOC. The order sought recalculation of Jordan's parole dates under the law in effect prior to the Class X Felony Act. In addition, Jordan reasserted his claims that his earlier written waiver should not apply and that a thirty-five percent release eligibility date was not correct. On July 10, 1998, Jordan's Petition for Declaratory Order was denied by the TDOC.
Subsequently, Jordan filed a Petition for Declaratory Judgement seeking the trial court's review of TDOC's denial of his request for a declaratory order. In response, TDOC filed a Rule 12 Motion to Dismiss for failure to state a claim upon which relief can be granted. TENN. R. CIV. P. 12.02(6); (R. at 102). The trial court granted TDOC's motion. Jordan filed a timely notice of appeal.
On appeal, Jordan asserts that the trial court erred by granting TDOC's motion for failure to state a claim upon which relief can be granted. Analysis
TDOC asserts the additional issue of whether the trial court erred in finding that Jordan was not entitled to sentence reduction credits received prior to his written waiver. As we find the status of the waiver is undetermined, we do not address this issue.
We find it appropriate to note that neither Jordan nor TDOC directly address the application of thirty-five percent to Jordan's sentence. On appeal, neither party presented this Court with factual or legal contentions regarding this issue. Accordingly, we limit our review to the issues of Jordan's Class X felony status and the application of his written waiver to his new sentence.
As a preliminary matter, we must determine the proper scope of review for this case. In the trial court, there was some confusion regarding whether TDOC's motion was treated as a Motion to Dismiss under Rule 12 or as a Motion for Summary Judgment under Rule 56. See TENN. R. CIV. P. 12.02(6); TENN. R. CIV. P. 56. TDOC originally filed a 12.02(6) Motion to Dismiss for failure to state a claim upon which relief can be granted. In response, Jordan filed a request for findings of material and undisputed facts pursuant to Rule 56, as allowed under Rule 12. Thereafter, both parties filed findings of fact with the court. In addition, Jordan filed a sworn affidavit. The trial court's order disposing of this case was granted as a Motion to Dismiss. Subsequently, Jordan filed an appeal based on the trial court's grant of TDOC's Motion for Summary Judgment. It appears that this matter was treated as a Motion for Summary Judgment because the trial court considered material outside of the pleadings. Knierman v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976). For this reason, we must consider this motion under the summary judgment standard.
A Motion for Summary Judgment can be granted only when there is no genuine issue of material fact relevant to the claim or defense contained in the motion and the moving party is entitled to judgment as a matter of law on the undisputed facts. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 1993). The moving party has the burden of proving that its motion satisfies these requirements. Downen v. Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn. 1991). The court must view the evidence in the light most favorable to the nonmoving party and must draw all reasonable inference in the nonmoving party's favor. Byrd v. Hall, 847 S.W.2d at 210-211 (Tenn. 1993). Under this standard, we find that Jordan did raise a genuine issue of material fact concerning the reapplication of his waiver under Tenn. Code Ann. § 40-21-236. Accordingly, the trial court should not have granted TDOC's motion.
Class X Felony Status
We find Jordan's claim regarding his Class X felony status without merit for the following reasons. The Class X Felony Act was in effect when the underlying crimes were committed in 1980, when Jordan was initially sentenced in 1981, and when Jordan was resentenced in 1986. Despite any agreement Jordan purports to have made, there is no factual or legal support for his contention that his sentence should be imposed under pre-Class X Felony Act law. Pursuant to Tenn. Code. Ann. § 39-1-105 (repealed), which was in effect from 1968 to 1989, Jordan must be prosecuted under the law in effect at the time his crimes were committed. Therefore, we find no equal rights or due process violation based on Jordan's status as a Class X felon. Assuming all of Jordan's factual allegations and the inferences drawn from those allegations are true, TDOC is entitled to judgment as a matter of law on this issue. The trial court was correct in granting TDOC's motion on this issue.
Tenn. Code Ann. § 39-1-105 (repealed) stated: "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 statue 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." (emphasis added).
In the case at bar, Jordan seeks to be classified under the law prior to the Class X Felony Act, not the law subsequently enacted.
Reapplication of Waiver
The remaining issue is whether the reapplication of Jordan's written waiver was appropriate. Jordan signed the waiver while serving a sentence that was later vacated. Thereafter, the waiver was reapplied under Jordan's new sentence. The record contained no proof indicating that Jordan signed a new waiver or consented to reapplication of the old waiver. In a prior opinion, we have held that due process requires that the prisoner be fully informed before a waiver under Tenn. Code Ann. § 40-21-236 is applied.Crowder v. Tennessee Dep't of Corrections, No. 01A01-9203-CH-00105, 1992 WL 207761, *4 (Tenn.App. Aug. 28, 1992). Since we are unable to determine whether Jordan was so informed, the matter is remanded for further consideration by the trial court.
Conclusion
Based upon the foregoing, the judgment of the trial court is hereby affirmed in part, reversed in part, and remanded. Costs on appeal are taxed to TDOC for which execution may issue, if necessary.
___________________________________________ HIGHERS, J.
CONCUR:
_____________________________________________ FARMER, J.
______________________________________________ LILLARD, J.