                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                               Assigned on Briefs June 5, 2007

  STEVEN D. TUTT v. TENNESSEE DEPARTMENT OF CORRECTIONS

                    Appeal from the Chancery Court for Davidson County
                      No. 05-1155-III   Ellen Hobbs Lyle, Chancellor



                  No. M2005-02563-COA-R3-CV - Filed on August 16, 2007


An inmate convicted of rape of a child filed a Petition for Declaratory Judgment, asking the
Chancery Court to find that he was entitled to earn sentence reduction credits so he could be released
from prison before the end of his fifteen year sentence. The Chancery Court dismissed the petition
on the ground that the statute under which he was convicted required him to serve 100% of his
sentence, undiminished by any sentence reduction credits. We affirm.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                         Affirmed

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM B. CAIN and FRANK
G. CLEMENT , JR., JJ., joined.

Steven D. Tutt, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Bradley
W. Flippin, Assistant Attorney General, for the appellee, Tennessee Department of Corrections.

                                             OPINION

                                                  I.

        On July 9, 1997, Steven D. Tutt plead guilty to a charge that he had raped a child on February
1 of that year. He was sentenced to fifteen years imprisonment. While incarcerated, he filed a
Petition for Declaratory Order with the Tennessee Department of Correction, pursuant to Tenn. Code
Ann. § 4-5-223(a). In the petition he contended, among other things, that his plea agreement with
the Marshall County District Attorney included a provision that allowed him to earn sentence credits
which could result in his release after he had served 85% of his sentence. He argued that the
Department had illegally changed that sentence to require him to serve the entire fifteen years. The
Department denied his petition. Its representative noted that there was nothing on the judgment
order to show anything less than 100% of time to be served on Mr. Tutt’s conviction.
        On May 5, 2005, Mr. Tutt filed a pro se Petition for Declaratory Judgment in the Chancery
Court of Davidson County, pursuant to Tenn. Code Ann. § 4-5-225. He advanced the same
arguments he had previously presented in his Petition for Declaratory Order. These included a claim
that the statute which requires those convicted of child rape to serve 100% of their sentences, Tenn.
Code Ann. § 39-13-523, did not become effective until September 10, 1997, which was seven
months after he committed the offense for which he was convicted, and thus that its application to
him was a violation of the constitutional prohibition against ex post facto laws.

       The Department filed a Motion for Summary Judgment and an accompanying memorandum.
The memorandum asserted that Mr. Tutt’s ex post facto argument was baseless because, contrary to
his assertion, Tenn. Code Ann. § 39-13-523 had in fact been enacted before his offense was
committed. The trial court granted the Department’s Motion on October 12, 2005. This appeal
followed.

                                                   II.

        Mr. Tutt has presented on appeal the very same arguments that were the basis of his Petition
for Declaratory Order and Petition for Declaratory Judgment. We note that the statute that controls
Mr. Tutt’s eligibility for sentence reduction credits is Tenn. Code Ann. § 39-13-523. That statute
reads in pertinent part,

       (a) As used in this section, unless the context otherwise requires:
               (1) "Child rapist" means a person convicted one (1) or more times of rape of
       a child as defined by § 39-13-522;
               ...
               (b) Notwithstanding any other provision of law to the contrary, a multiple
       rapist or a child rapist, as defined in subsection (a), shall be required to serve the
       entire sentence imposed by the court, undiminished by any sentence reduction credits
       the person may be eligible for or earn. A multiple rapist or a child rapist shall be
       permitted to earn any credits for which the person is eligible and the credits may be
       used for the purpose of increased privileges, reduced security classification, or for
       any purpose other than the reduction of the sentence imposed by the court.
               (c) The provisions of title 40, chapter 35, part 5, relative to release eligibility
       status and parole shall not apply to or authorize the release of a multiple rapist or
       child rapist, as defined in subsection (a), prior to service of the entire sentence
       imposed by the court.

        As the Court of Criminal Appeals noted in Coleman v. Morgan, 159 S.W.3d 887, 890 (Tenn.
Crim. App. 2004), “39-13-523 does, indeed, provide that defendants convicted of rape of a child are
ineligible to receive the benefit of sentence reduction credits and must serve their entire sentenced
undiminished by any such credits.”




                                                  -2-
        The text of the above statute was enacted into law in 1992. See 1992 Tenn. Pub. Acts, ch. 878
§ 1. Thus, there is no basis for Mr. Hill’s assertion that the statute was enacted in 1997. The plain
terms of the statute preclude any individual who is convicted of rape of a child after its effective date
from serving less than 100% of his sentence. The effective date of the statute was July 1, 1992. Mr.
Hill nonetheless argues that he is entitled to take advantage of the provisions for sentence reduction
credits found in Tenn. Code Ann. § 40-35-501, despite the explicit exclusion set out in Tenn. Code
Ann. § 39-13-523(c).

        The subject matter of Tenn. Code Ann. § 40-35-501 is the calculation of release eligibility
status for convicted felons. Subsection (i)(1) of the statute limits the sentence reduction credits that
an inmate may earn if he has been convicted of any of eleven specific offenses to an amount that will
shorten his sentence by no more than 15%. The enumerated offenses include first degree murder,
aggravated kidnapping, rape and rape of a child. However, subsection (i)(3) of the same statute
declares that

                Nothing in this subsection (i) shall be construed as affecting, amending or
        altering the provisions of § 39-13-523, which requires child rapists and multiple
        rapists to serve the entire sentence imposed by the court undiminished by any
        sentence reduction credits.

        Mr. Tutt insists that the above subsection (i)(3) did not come into effect until September 10,
1997. But the legislative record reveals that all parts of section (i) were enacted by the 99th General
Assembly at the same time [1995 Tenn. Pub. Acts, ch. 492 § 1]. The Act declares that it is to take
effect on July 1, 1995. Thus, inexplicably, the same Act listed child rape convictions as those subject
to the 15% limit and also declared child rapists ineligible for any sentence reduction credits.
Nonetheless, the meaning of subsection (i)(3) of that statute, quoted above, is plain and cannot be
ignored. Tennessee Code Annotated § 39-13-523(c) is also clear and unambiguous.

       Aside from Coleman v. Morgan, supra, the Court of Criminal Appeals has had several
opportunities to construe the above statutes since their enactment. For example, in Hill v. State, No.
M2000-01428-CCA-R3-PC, 2001 WL 1006050 (Tenn. Crim. App. Aug. 30, 2001) (No Tenn. R.
App. P. 11 application filed), the defendant reached a plea that resulted in his conviction for four
separate acts of child rape committed in three different counties. He received four sixteen year
sentences for the offenses, to be served concurrently.

       The sentencing documents for two of the sentences stated that they were to be served as a
“Standard 30% Range 1,” and the two others to be served at 100%, with a possible reduction by
15%. The appeals court declared all four sentences to be illegal, and remanded the case to the
sentencing court for new sentences to be served at 100% in accordance with Tenn. Code Ann. § 39-
13-523.

       The plaintiff in Neely v. Bell, No. M2004-01012-CCA-R3-HC, 2005 WL 119558 (Tenn.
Crim. App. Jan. 20, 2005) (No Tenn. R. App. P. 11 application filed), presented an ex post facto


                                                  -3-
argument similar to the one presented by Mr. Tutt. Mr. Neely was convicted of two child rapes on
a plea of nolo contendere, and was sentenced to two concurrent fifteen year terms to be served at
100%. He argued that since his offenses were committed one month prior to the effective date of
Tenn. Code Ann. § 40-35-501(i) he was entitled to be sentenced as a Range 1 Standard Offender
under the 1989 Sentencing Reform Act. The appeals court disagreed. It held, among other things,
that Mr. Neely was still subject to the provisions of Tenn. Code Ann. § 39-13-523 and that the
requirement that he serve his sentence at 100% applied.

        The above statutes and cases establish unequivocally that those convicted of child rape after
July 1, 1992 must serve their sentences undiminished by sentence reduction credits. Mr. Tutt
committed his offense in 1997, and he was convicted in the same year. Thus, there is no basis either
in law or fact for Mr. Tutt’s petition. The trial court was correct in concluding that he was not
entitled to relief and in granting summary judgment to the Department.

                                                III.

       The judgment of the trial court is affirmed. We remand this case to the Chancery Court of
Davidson County for any further proceedings necessary. Tax the costs on appeal to the appellant,
Steven D. Tutt.



                                                       ____________________________________
                                                       PATRICIA J. COTTRELL, JUDGE




                                                -4-
