ROBERT L. OGBURN, )
)
Petitioner/Appellant, )
) Appeal No.
) 01-A-01-9707-CH-00284
VS. )
) Davidson Chancery
) No. 96-1806-I(II)
TENNESSEE DEPARTMENT OF )
CORRECTION, ET AL., )
Respondents/Appellees.
)
) FILED
January 14, 1998
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE Cecil W. Crowson
Appellate Court Clerk
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE CAROL L. MCCOY, CHANCELLOR
ROBERT L. OGBURN
Cold-Creek Correctional Facility
B-3, Cell #38
Post Office Box 1000
Henning, Tennessee 38041-1000
Pro Se/Petitioner/Appellant
JOHN KNOX WALKUP
Attorney General and Reporter
JOHN R. MILES
Assistant Attorney General
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
Attorney for Respondents/Appellees
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCURS:
TODD, P.J., M.S.
DISSENTS:
KOCH, J.
OPINION
An inmate in the Tennessee prison system sought a declaratory
judgment that the Tennessee Department of Correction’s Policy 502.02 was
unconstitutional and that it was also unenforceable because it was not promulgated
according to the Administrative Procedures Act. The Chancery Court of Davidson
County dismissed the petitioner’s claims. We affirm.
I.
In May of 1989 Robert L. Ogburn received a sentence of thirteen years
in the state prison for robbery and first degree burglary. He was paroled in April of
1991 but was returned to prison in May of 1993 for violating his parole. In that same
month he received an additional sentence of twenty years for offenses committed
while on parole. His new release eligibility date (RED) became July 4, 2000. On
February 13, 1995, Mr. Ogburn was charged with assaulting an officer in prison. After
a hearing, the institutional disciplinary board found Mr. Ogburn guilty and, pursuant
to Department of Correction Policy 505.02, extended his RED by thirty percent.
The Department of Correction rejected Mr. Ogburn’s petition for a
declaratory order that Policy 502.02 was invalid, and he filed this action in the
Chancery Court of Davidson County pursuant to Tenn. Code Ann. § 4-5-224. His
contentions are (1) that the policy was not adopted according to the Uniform
Administrative Procedures Act, (2) that the policy is an ex post facto law, (3) that the
policy subjects him to double jeopardy, and (4) that the hearing before the disciplinary
board violated his rights to due process. The chancery court addressed these issues
and found them all to be without merit.
II.
The Validity of Policy 502.02 as a Rule
under the Uniform Administrative Procedures Act
-2-
We have held on three different occasions that the Department of
Correction’s policies affecting the custody and control of inmates need not be
promulgated as rules under the Uniform Administrative Procedures Act. Green v.
Department of Correction, No. 01-A-01-9110-CH-00352 (Tenn. Ct. App. filed
Nashville Jan. 31, 1992); Hitson v. Bradley, No. 01-A-01-9403-CH-00129 (Tenn. Ct.
App. filed Nashville Aug. 12, 1994); Mandela v. Campbell, No. 01-A-01-9607-CH-
00332 (Tenn. Ct. App. filed Nashville Dec. 20, 1996). The issue is not free of doubt,
because the Supreme Court denied permission to appeal in Green, concurring only
in the result, and granted permission to appeal in Mandela, where the case is still
pending. We are satisfied, however, to follow our prior cases and overrule the
petitioner’s contention on this issue.
III.
Ex Post Facto
This issue has also been before this court on prior occasions. In
Rowland v. Bradley, 899 S.W.2d 614 (Tenn. App. 1994), and Blankenship v.
Campbell, No. 01-A-01-9603-CH-00099 (Tenn. Ct. App. filed Nashville June 26,
1996), we held that the statutory predicate for Policy 502.02 (Tenn. Code Ann. § 40-
35-501(h)) did not violate the ex post facto provisions of the United States
Constitution, and in Blankenship, we specifically held that policy 502.02 was not an
ex post facto law. “An ex post facto law imposes punishment for an act which was not
punishable at the time it was committed; or imposes additional punishment to that
then prescribed.” Blankenship at *2 (quoting Weaver v. Graham, 450 U.S. 24 (1991).
Because 502.02 did not retroactively inflict a greater punishment on the inmate than
was provided for in his original sentence, we held that it was not an ex post facto law.
We adhere to that conclusion.
-3-
IV.
Due Process and Double Jeopardy
Although Mr. Ogburn alleged that he has been subjected to double
jeopardy and that his due process rights have been violated, he does not allege any
facts to support his conclusion. The trial judge addressed the due process claim and
pointed out that Mr. Ogburn does not assert that he was deprived of notice, a hearing,
the right to be present, nor the right to produce evidence on his own behalf. Therefore
he has not stated a claim based on a lack of due process.
Double jeopardy involves being tried again for an offense for which the
accused has previously been convicted or acquitted. Bell v. State, 423 S.W.2d 482
(Tenn. 1968). Mr. Ogburn has not previously been tried on the assault committed in
prison. The assault did not result in lengthening the sentence which he was serving
at the time of the breach of the prison’s rules. The disciplinary action simply resulted
in an extension of his RED.
The judgment of the trial court is affirmed and the cause is remanded
to the Chancery Court of Davidson County for any further proceedings necessary.
Tax the costs on appeal to the appellant.
________________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
-4-
DISSENTING OPINON:
WILLIAM C. KOCH, JR., JUDGE
-5-
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
ROBERT L. OGBURN, )
)
Petitioner/Appellant, )
) Appeal No.
) 01-A-01-9707-CH-00284
VS. )
) Davidson Chancery
) No. 96-1806-I(II)
TENNESSEE DEPARTMENT OF )
CORRECTION, ET AL., ) Affirmed and
) Remanded
Respondents/Appellees. )
JUDGMENT
This cause came on to be heard upon the record on appeal from the
Chancery Court of Davidson County, and briefs of the parties; upon consideration
whereof, this Court is of the opinion that in the decree of the Chancellor there is no
reversible error.
In accordance with the opinion of the Court filed herein, it is, therefore,
ordered and decreed by this Court that the decree is affirmed. The cause is
remanded to the Chancery Court of Davidson County for the enforcement of the
decree and for the collection of the costs accrued below.
Costs of this appeal are taxed against David L. Ogburn, for which
execution may issue if necessary.
ENTER _______________________.
_________________________________
HENRY F. TODD, PRESIDING JUDGE
_________________________________
BEN H. CANTRELL, JUDGE