             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                    FILED
                                                     February 18, 1999

CHARLES ALLEN,                        )             Cecil Crowson, Jr.
                                      )            Appellate Court Clerk
       Petitioner/Appellant,          )
                                      )   Appeal No.
                                      )   01-A-01-9804-CH-00199
VS.                                   )
                                      )   Davidson Chancery
                                      )   No. 97-3553-I
DONAL CAMPBELL,                       )
COMMISSIONER, TENNESSEE               )
DEPARTMENT OF CORRECTION,             )
                                      )
       Respondent/Appellee.           )


      APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE

          THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR




CHARLES ALLEN, #99940
7575 Cockrill Bend Industrial Road
Nashville, Tennessee 37290-1057
      Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General & Reporter

PATRICIA C. KUSSMANN
Assistant Attorney General
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

a prisoner by an additional 30% after he was found guilty of assaulting a correctional

officer. The prisoner filed a petition for a declaratory judgment that the extension of

his Release Eligibility Date was a violation of the ex post facto prohibition. The trial

court dismissed the petition. We affirm.



                                           I.



              Charles Allen was convicted of murder in the second degree, and

sentenced to life in prison. The date of his crime was January 10, 1982. The law at

that time made those receiving life sentences eligible for parole after 30 years. Mr.

Allen’s original Release Eligibility Date (RED) was calculated as January 13, 2012.



              On October 31, 1989, Mr. Allen assaulted another inmate and a

correctional officer. He was found guilty of two counts of aggravated assault by a

Davidson County court, and received two sentences of two years each, to be served

consecutively to his life sentence. In accordance with Tennessee Department of

Correction Policy No. 502.02 in regard to assault on an officer, his RED was extended

by 30%. The policy in question considers a life sentence to be 99 years for the

purpose of an RED extension. The result was a new eligibility date of September 17,

2037.



              Mr. Allen requested that the Department of Correction issue a

declaratory order that the extension was invalid, because it violated the ex post facto

clause of the Constitution. The Department declined to issue the declaratory order,




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so on October 29, 1997, he filed a petition for declaratory judgment in the Chancery

Court of Davidson County.



              The Department filed a motion to dismiss the petition under Tenn. R.

Civ. P. 12.02(6) for failure to file a claim upon which relief may be granted. Because

matters outside the pleadings were presented, the court treated the motion as one for

summary judgment. The court granted the motion, finding that as a matter of law, no

ex post facto violation had occurred. This appeal followed.



                                           II.



              On appeal, Mr. Allen contends that he is entitled to the benefits of the

law in effect at the time he committed his crime, by virtue of both the ex post facto

clauses of the U.S. and Tennessee Constitutions, and Tenn. Code Ann. § 40-35-117

of the Sentencing Reform Act of 1989, which clarifies the application of the Reform

Acts of 1982 and 1989 to felonies committed before and after their enactment. That

statute reads:

                     (a) All persons who commit crimes on or after
              November 1, 1989, shall be tried and sentenced under
              the provisions of this chapter.
                     (b) Unless prohibited by the United States or
              Tennessee Constitution, any person sentenced on or after
              November 1, 1989, for an offense committed between
              July 1, 1982 and November 1, 1989, shall be sentenced
              under the provisions of this chapter.
                     (c) For all persons who committed crimes prior to
              July 1, 1982, prior law shall apply and remain in full force
              and effect in every respect, including, but not limited to,
              sentencing, parole and probation.



              We agree with Mr. Allen that we must look to the law in effect on

January 10, 1982 to determine the extent of his right to parole consideration. However

an examination of the relevant statutes reveals that the Department of Correction was

entitled to modify his Release Eligibility Date as it did.



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              Tenn. Code Ann. § 39-1-702 [enacted 1979, subsequently repealed] lists

second degree murder among the offenses classified as Class X felonies. Tenn.

Code Ann. § 40-28-301 [enacted 1979, subsequently repealed] governs release

eligibility of Class X felons. Section (h)(1) of that statute reads:

              The release classification eligibility date provided for in
              this section shall be the earliest date a person convicted
              of a Class X felony shall be eligible for release
              classification status, such date being conditioned on the
              prisoner’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 person is incarcerated, the
              commissioner of correction or his designees, may defer
              the release classification eligibility date so as to increase
              the total amount of time a person must serve before
              becoming eligible for release classification 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 corrections. [Acts 1979, ch. 318 § 20]



              As can be seen by the above quoted provision, Class X felons did not

have an absolute entitlement to any particular RED, but could have that date

extended for misbehavior.



              Mr. Allen contends that in its memorandum in support of the motion to

dismiss, the appellee erroneously relied upon a statute that was part of the Criminal

Sentencing Reform Act of 1982, as the law controlling his eligibility for release.

Section (h) of Tenn. Code Ann. § 40-35-501, the statute in question, tracks the

language of Tenn. Code Ann. § 40-35-301(h)(1) very closely, but is applicable by its

terms to all felons, not only to those convicted of Class X felonies. Mr. Allen is correct

in stating that Tenn. Code Ann. § 40-35-501 does not apply to him because it was

enacted after his crime was committed. However the chancellor cited the correct

statute in determining that as a Class X felon, Mr. Allen’s Release Eligibility Date

could be extended beyond thirty years for violations of departmental rules.



                                           III.

                                          -4-
             The judgment 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.




                                               ______________________________
                                               BEN H. CANTRELL,
                                               PRESIDING JUDGE, M.S.



CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE




_____________________________
WILLIAM B. CAIN, JUDGE




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