IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
February 18, 1999
ROBERT EARL SMITH, ) Cecil Crowson, Jr.
) Appellate Court Clerk
Petitioner/Appellant, )
) Appeal No.
) 01-A-01-9804-CH-00201
VS. )
) Davidson Chancery
) No. 97-3755-I
DONAL CAMPBELL, )
COMMISSIONER, DEPARTMENT )
OF CORRECTION, )
)
Respondent/Appellee. )
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR
ROBERT EARL SMITH, #117519
P. O. Box 1000
Henning, Tennessee 38041-1000
Pro Se/Petitioner/Appellant
JOHN KNOX WALKUP
Attorney General & Reporter
STEPHANIE R. REEVERS
Senior Counsel
425 Fifth Avenue North
Nashville, Tennessee 37243
Attorney for Respondent/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
KOCH, J.
CAIN, J.
OPINION
The Department of Correction extended the Release Eligibility Date of
an inmate by 30% on two occasions, following two incidents in which he assaulted
correctional officers. The inmate filed a petition asking the court to issue a declaratory
judgment that the Department had violated the constitutional prohibition against ex
post facto laws by extending his Release Eligibility Date. The trial court dismissed the
petition. We affirm.
I.
On July 27, 1987, Robert Earl Smith pled guilty to murder in the second
degree and assault with intent to commit murder. For those crimes, he was
sentenced to forty years in the penitentiary. On January 9, 1991, he was found guilty
of assaulting a correctional officer, and his Release Eligibility Date (RED) was
extended by 30%. On July 29, 1991, he was found guilty of assaulting a different
correctional officer, and his RED was extended an additional 30%.
Mr. Smith then filed a petition for a declaratory order with the Tennessee
Department of Correction, pursuant to Tenn. Code Ann. § 4-5-223, claiming that the
Department could not extend his RED, because such an action violated the prohibition
against ex post facto laws found in the U.S. and Tennessee Constitutions. The
Department declined to grant him the requested order.
On November 13, 1997, Mr. Smith filed a petition for declaratory
judgment in the Davidson County Chancery Court. See Tenn. Code Ann. § 4-5-224.
The Department filed a motion to dismiss the petition for failure to state a claim upon
which relief can be granted. Tenn.R.Civ.P. 12.02(6). The chancellor granted the
Department’s motion, finding that it had not violated the ex post facto prohibition by
changing Mr. Smith’s RED. This appeal followed.
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II.
Mr. Smith’s argument on appeal is simply that the regulation the
Department used to extend his RED was not promulgated until after his 1987
conviction, and that it therefore cannot be applied to him. The chancellor found this
argument to be without merit, and we agree. At the time Mr. Smith was convicted,
Tenn. Code Ann. § 40-35-501 was in effect. That statute provided in part that:
(h) the release eligibility date provided for in this
section shall be the earliest date a defendant convicted of
a felony shall be eligible for release status; such date
shall be conditioned on the defendant’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
defendant is incarcerated, or while on any release
program other than parole, the commissioner of correction
or his designees, may defer the release eligibility date so
as to increase the total amount of time a defendant must
serve before becoming eligible for release 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 and which give notice of the length of
discretionary increases that may be imposed for a
violation of each of the rules of the department or
institution . . . . [Acts 1982, ch. 868, §1]
Mr. Smith’s RED was extended pursuant to Department of Correction’s
Disciplinary Punishment Guidelines, found in its Rule #502.02. The version of that
rule in effect at the time of the two assaults had an effective date August 1, 1990. It
states in relevant part:
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 percent (30%) 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.
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The disciplinary reports appended to Mr. Smith’s petition indicate that
in both cases Mr. Smith was found to have struck correctional officers more than
once, and that the officers did sustain injuries.
III.
The United States Constitution, Article 1, § 10, forbids the states from
passing any ex post facto laws. The Tennessee Constitution, Article 1, § 11 contains
a similar prohibition. An early decision of the United States Supreme Court, Calder
v. Bull, 3 U.S. [3 Dall.] 386 (1798), laid down four broad classifications of ex post facto
laws, which have frequently been cited in discussions of the ex post facto clause by
the courts of this state, more or less as follows:
1. A law which provides for the infliction of
punishment upon a person for an act done which, when
it was committed, was innocent.
2. A law which aggravates a crime or makes it
greater than when it was committed.
3. A law that changes punishment or inflicts a
greater punishment than the law annexed to the crime
when it was committed.
4. A law that changes the rules of evidence
and requires less or different testimony than was required
at the time of the commission of the offense in order to
convict the offender.
Miller v. State 584 S.W.2d 758, 761 (Tenn. 1979). See also Kaylor v. Bradley, 912
S.W.2d 728 (Tenn. App. 1995). A simpler explanation, derived from a more recent
case, is that 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 (1981).
The principle on which the ex post facto prohibition is based is one of
fairness -- the notion that persons have a right to fair warning of the conduct that will
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give rise to criminal penalties, Marks v. United States, 430 U.S. 188 (1977), and it
goes without saying, of the severity and nature of the possible penalties involved.
In the present case, Mr. Smith’s eligibility for release was made
contingent upon his good behavior from the very moment of sentencing, and the
Commissioner had the discretion to defer that eligibility for any violation of the
Department’s rules. Tenn. Code Ann. § 40-35-501, supra. Thus “the law annexed
to the crime” committed by Mr. Smith, already included the possibility of the
punishment that was in fact imposed.
Even if, as Mr. Smith asserts, the specific rule that the Department used
to extend his RED was not in effect at the time he was sentenced, it was certainly in
effect at the time he assaulted the correctional officers. Thus, Mr. Smith cannot argue
that he did not have fair warning of the possible consequences of an assault.
Finally, we know of no case which holds, or even implies, that a prisoner
has a vested right not to be subjected to disciplinary rules that were put into effect
after he was sentenced. Such a holding would destroy the possibility of maintaining
consistent discipline in our prisons, for a different set of rules would apply to each
prisoner, and prison administration would collapse under the crushing burden of
differential enforcement.
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.
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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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