IN THE SUPREME COURT OF TENNESSEE
AT JACKSON FILED
September 29, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
FOR PUBLICATION
WILLIAM D. CARROLL, )
) Filed: September 29, 1997
Appellant, )
) LAUDERDALE LAW
)
Vs. )
) HON. JOSEPH H. WALKER,
) JUDGE
FRED RANEY, WARDEN, )
)
Appellee. ) No. 02-S-01-9610-CC-00086
For Appellant: For Appellee:
Julie K. Pillow John Knox Walkup
Assistant Public Defender Attorney General & Reporter
Covington, Tennessee
Michael E. Moore
Gary F. Antrican Solicitor General
Pubic Defender
Covington, Tennessee Gordon W. Smith
Associate Solicitor General
Nashville, Tennessee
OPINION
AFFIRMED ANDERSON, C.J.
The defendant filed a writ of habeas corpus seeking his freedom from
prison on the grounds his commuted sentence had expired prior to being
revoked by the Governor. The trial court found that the commuted sentence
from life to “22 years to life” had expired before the Governor’s revocation and
granted the defendant’s petition for the writ of habeas corpus. The Court of
Criminal Appeals reversed, holding that the Governor’s commutation was
conditional and that the Governor had the authority to revoke the commutation at
any time throughout the defendant’s life.
Although we disagree that the commutation contained an express
condition, we conclude the Governor had the authority to first commute the
sentence to an indeterminate term of “22 years to life,” and also to revoke the
commutation at any time during the defendant’s life because the defendant was
considered in legal custody until his life sentence expired at his death.
Accordingly, we affirm the Court of Criminal Appeals’ judgment based on the
separate rationale developed below.
BACKGROUND
In May of 1962, the defendant, William D. Carroll, was convicted of rape
and sentenced to death, which was then an available punishment for the
offense.1 In 1964, Governor Frank Clement commuted Carroll’s sentence to a
term of life imprisonment. In November of 1972, Carroll’s life sentence was
again commuted by Governor Winfield Dunn to a term of “22 years to life.” The
defendant was released on parole in December of 1972, but convicted the
following year of robbery with a deadly weapon. In March of 1974, Governor
1
The punishm ents for rape included death by electrocution, life imprisonment, or a
determinate sentence of at least ten years. Tenn. Code Ann. § 39-370 2 (1955 & Supp. 196 1).
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Dunn revoked the commuted sentence and reinstated a term of life
imprisonment.
In 1992, the defendant, who was then incarcerated at Fort Pillow prison,
filed a petition for the writ of habeas corpus, alleging that the commuted
sentence of “22 years to life” had expired in 1973, or prior to the governor’s
purported revocation.2 Although the trial court initially denied relief, the Court of
Criminal Appeals remanded for a hearing to determine whether and when the
commuted sentence had expired. Carroll v. Raney, 868 S.W.2d 721 (Tenn.
Crim. App. 1993).
On remand, the trial court found that the commuted sentence was
unconditional and that, applying applicable sentencing credits, the defendant
Carroll had served a 22-year sentence prior to the Governor’s revocation. The
Court of Criminal Appeals reversed, holding that the commutation was
conditional and that the Governor had authority to revoke the sentence at any
time during the entire term. We then granted the application for permission to
appeal.
GOVERNOR’S POWER OF COMMUTATION
We first turn to the Constitution to determine the extent of the Governor’s
power to commute sentences. The Tennessee Constitution, art. III, § 6, states
the Governor “shall have the power to grant reprieves and pardons, after
conviction, except in cases of impeachment.” As this Court has recognized, the
power to grant reprieves and pardons “embraces the right to commute a
2
The re med y of habea s corpu s is the pro per proc edure th rough w hich to allege that a
senten ce of im prisonm ent has expired. Arche r v. State , 851 S.W .2d 157 ( Tenn . 1993); Ricks v.
State , 882 S.W .2d 387 (Tenn. Crim . App. 1994).
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sentence, that is, to impose a lesser or shorter sentence for the sentence
imposed following a defendant’s conviction.” Bowen v. State, 488 S.W.2d 373,
375 (Tenn. 1972); see also Ricks v. State, 882 S.W.2d at 391. The commuted
sentence to a lesser term stands as if it had been the judgment imposed in the
first instance. Bowen, 488 S.W.2d at 375.
The Governor’s power to grant reprieves, pardons and commutations is
limited only by the language in the Constitution. State ex rel. Bedford v.
McCorkle, 163 Tenn. 101, 40 S.W.2d 1015, 1016 (1931). Thus, while the power
is also recognized by statute, see, Tenn. Code Ann. § 40-27-101 (1990), this
Court has observed:
The vestiture of the power to grant reprieves and pardons in the
chief executive is exclusive of all other departments of the state,
and the Legislature cannot, directly or indirectly, take it from his
control, and vest it in others, or authorize or require it to be
exercised by any other officer or authority. It is a power and a duty
intrusted to his judgment and discretion, which cannot be interfered
with, and of which he cannot be relieved.
State ex rel. Rowe v. Connor, 166 Tenn. 393, 61 S.W.2d 471, 472 (1933). More
recently, the Court of Criminal Appeals has declared “neither the legislature nor
the judicial branch of government has the authority to regulate or control the
governor’s power to commute a sentence.” Ricks v. State, 882 S.W.2d at 391.3
The Governor also has the authority to attach conditions or restrictions to
a commuted sentence that are reasonable, legal, and possible for the defendant
to perform. See, e.g., McCorkle, 40 S.W .2d at 1016 (“obey the law in every way,
3
Similarly, the statutory provisions governing parole, Tenn. Code Ann. § 40-28-101--127
(1990 & Supp. 1996), specifically provide that nothing contained therein “shall be construed in any
way as intended to modify or abridge the pardoning power of the governor.” Tenn. Code Ann.
§ 40-28-128 (1990).
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lead the life of a good citizen, and refrain from the use, sale, manufacture or
possession . . . of intoxicants.”); Ricks v. State, 882 S.W.2d at 393 (“parole
and/or commutation supervision by the Bd. of Paroles until the expiration of his
original sentence”). Upon a finding that a condition has been violated, the
commuted sentence may be revoked by the Governor, provided that the
sentence has not expired. See Rowell v. Dutton, 688 S.W.2d 474, 477 (Tenn.
Crim. App. 1985).
In this case, the defendant’s argument is two-fold. First, he argues that
the commuted sentence of “22 years to life” must be interpreted as a 22-year
determinate sentence because, at the time of the offense and at the time of the
commutation, an indeterminate sentence could not be imposed for rape. See
Tenn. Code Ann. § 40-2707 (1975); Franks v. State, 187 Tenn. 174, 213 S.W.2d
105, 109 (1948). 4 Second, he contends that the unconditional commutation of
22 years expired prior to the Governor’s revocation of it. The trial court agreed.
The Court of Criminal Appeals, however, interpreted the commuted sentence as
conditional, while conceding that the “22 years to life” was an indeterminate
sentence. Specifically relying on the “to life” language, the court concluded that
the Governor had the authority to revoke the commutation of the defendant’s
sentence throughout the remainder of the defendant’s life.
4
Now c odified in T enn. Co de Ann . § 40-20 -107 (19 90), the de termin ate/indete rmina te
distinction applied to offenses committed before July 1, 1982, when sentences were determined
by the jury. When a defendant was convicted of a felony, the jury was to impose a minimum and
maximum term for the offense, i.e., an indeterminate sentence; for the most serious crimes, such
as rape, the jury was to impose only a determinative sentence. The distinction primarily pertained
to a defendant’s parole eligibility date. Tenn. Code Ann. § 40-3612 (1975)[Now Tenn. Code Ann.
§ 40-28-115 (1990)]. Sentencing by jury, and the determinate/indeterminate distinction, has been
largely abolish ed in the pr esent s entenc ing act. Te nn. Cod e Ann. § 40-35-1 01, et seq. (1990 &
Supp. 1996).
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We agree with this result but not the reasoning. The majority view with
regard to conditional pardons is that “the conditions, to be operative, must
appear on the face of the paper, and must be clear and specific.” 59 Am. Jur.
2d, Pardon and Parole, §63 at 52 (2d ed. 1987); 67A C.J.S., Pardon and Parole,
§37 at 49 (1978 & Supp. 1997); see also Connors, 61 S.W.2d at 473 (“by apt
language in the instrument itself, the Governor . . . can stipulate that he shall
have exclusive power to determine whether the conditions of a pardon issued
have been broken.”). The trial court found, and both parties on appeal now
recognize, that the Governor’s commutation in this case did not contain an
express condition. Although it is arguable that the words of the commuted
sentence “to life” imply a condition, we believe this approach is less persuasive
than the rationale we have chosen. Compare Ricks, 882 S.W.2d at 393, n. 23
(defendant “will be under parole and/or commutation supervision by the Board of
Paroles until the expiration of his original sentence.”).
In our view, the Governor had the constitutional authority pursuant to
article III, § 6 of the Tennessee Constitution to grant a commuted sentence of
“22 years to life,” even if the applicable statutes precluded the imposition of an
indeterminate sentence for the offense of rape. For example, in State v. Fields,
925 S.W.2d 561 (Tenn. Crim. App. 1996), the Governor commuted the
defendant’s death sentence to a term of ninety-nine years. The defendant later
sought post-conviction relief on the basis that the only other legally effective
sentence for first-degree murder at the time of his offense was life imprisonment,
and not a term of ninety-nine years. The Court of Criminal Appeals rejected the
assertion that the commuted sentence was illegal:
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[T]he only sentence that could legally have been ordered by a
judge or jury was life imprisonment. We conclude, however, that
these cases and the law set forth therein do not and cannot restrict
the constitutional authority of the Governor to commute a
defendant’s sentence to a term less than life. . . .
Id. at 563.
Other state courts have reached similar conclusions. The Maine Supreme
Court did so in Baston v. Robbins, 135 A.2d 279 (Me. 1957). There, the
Governor commuted the defendant’s eight-year sentence for rape to a term from
four to eight years. The defendant was paroled, but when he violated a condition
of parole, he was ordered to complete his commuted sentence. He sought
habeas corpus relief, alleging that the commutation was an indeterminate
sentence in violation of Maine’s statutory sentencing law. The Maine Supreme
Court, after first noting that the commuted term was a reduction of the original
sentence, held:
[A]uthority of the Governor and Council is derived from the
Constitution and it may commute the sentence with such
restrictions as may be deemed proper. If the restrictions and
limitations imposed are in conflict with the provisions of any statute,
then such statute does not control . . . .
Id. at 281. Likewise, in Green v. Gordon, 246 P.2d 38 (Cal.), cert. denied, 344
U.S. 886 (1952), the defendant argued that the Governor could not commute his
death sentence to life without the possibility of parole because the only
punishments established for the offense of first-degree murder by the legislature
were death and life with the possibility of parole. The California Supreme Court
responded that:
The penalties prescribed by statute . . . are the ones to be imposed
by the trial court upon conviction of murder, and the statutory
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provisions relating to such penalties and the right to parole do not
purport to limit the governor’s power to impose conditions upon a
commutation of sentence.
Id. at 39; see also State v. Hunter, 447 A.2d 797 (Me. 1982); Schick v. Reed,
483 F.2d 1266 (D.C. Cir. 1973).
Accordingly, we conclude that the commuted sentence of 22 years to life
imposed by the Governor was a proper exercise of his authority under article III,
§ 6 of the Tennessee Constitution, even if considered an indeterminate term that
could not have been imposed under the statutes by the judge or jury when the
defendant was convicted. It was a lesser sentence in that it provided a minimum
term by which the defendant could be released earlier than he would have been
had his sentence remained life imprisonment. Yet, at the same time, the
defendant was considered in legal custody until the expiration of the maximum
sentence. See State ex rel. Saunders v. Robinson, 190 Tenn. 101, 103, 228
S.W.2d 75 (1950) (a prisoner serving an indeterminate sentence, even if
released on parole, is considered in legal custody until the expiration of the
maximum sentence). Because a life sentence does not expire until a
defendant’s death, the defendant was still serving the sentence when the
commutation was revoked by the Governor in 1974. See Doyle v. Hampton, 207
Tenn. 399, 340 S.W.2d 891 (1960). Therefore, the defendant is not entitled to
habeas corpus relief.
CONCLUSION
We have determined that the commuted sentence of 22 years to life was
a proper exercise of the Governor’s constitutional authority, and that the
defendant was still serving this sentence when the commutation was revoked by
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the Governor in 1974. Accordingly, the defendant was not entitled to habeas
corpus relief, and the judgment of the Court of Criminal Appeals is affirmed.
Costs of this appeal are taxed to the appellant, for which execution may
issue if necessary.
_________________________________
E. RILEY ANDERSON, CHIEF JUSTICE
Concur:
Drowota, Reid, Birch, and Holder, JJ.
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