JIMMY WAYNE WILSON,              )

      Plaintiff/Appellant,
                                 )
                                 )
                                 )
                                                            FILED
JAMES T. FITE, VIVIEN TROY COOK, )
DEWEY SCOTT FRAZIER, JERRY L. )                              January 16, 1998
CHILTON, PAUL CARRIER, ET AL.,   )
                                 )                          Cecil W. Crowson
      Plaintiffs,                )             Appeal No.  Appellate Court Clerk
                                 )             01-A-01-9706-CV-00266
VS.                              )
                                 )             Davidson Chancery
STATE OF TENNESSEE, GOVERNOR )                 No. 93C-91
NED RAY McWHERTER, PAROLE        )
ELIGIBILITY REVIEW BOARD &       )
MEMBERS, JIM THRASHER,           )
JOHN S. WILDER, JIMMY NAIFEH,    )
AND CHARLES BURSON, ET AL.,      )
                                 )
      Defendants/Appellees.      )


                    COURT OF APPEALS OF TENNESSEE
                      MIDDLE SECTION AT NASHVILLE


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

THE HONORABLE THOMAS W. BROTHERS, JUDGE


JIMMY WAYNE WILSON, #108253
Morgan County Regional Correctional Facility
P. O. Box 2000
Wartburg, Tennessee 37887
       Pro Se/Plaintiff/Appellant

JOHN KNOX WALKUP
Attorney General & Reporter

ABIGAIL TURNER
Assistant Attorney General
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
       Attorney for Defendants/Appellees



                         AFFIRMED AND REMANDED



                                               BEN H. CANTRELL, JUDGE

CONCUR:
TODD, P.J., M.S.
KOCH, J.
                              OPINION
              Six inmates in the custody of the Department of Correction brought a

declaratory judgment suit against the Parole Eligibility Review Board (“the Board”),

against its members individually, and against a number of other state officials. The

complaint alleged that the defendants had violated the plaintiffs’ equal protection and

due process rights, by failing to recalculate their sentences under the Criminal

Sentencing Reform Act of 1989 and/or failing to grant them an accelerated Release

Eligibility Date (“RED”).



              The trial court dismissed the complaint for failure to state a claim upon

which relief may be granted. One of the six inmates appealed, restating the same

arguments on appeal as were advanced in the trial court. We find that all of

appellant’s arguments have already been foreclosed by statute or by case law, and

we affirm the court’s order.



                                           I.



              The appellant, Jimmy Wayne Wilson was sentenced to life imprisonment

as a habitual criminal on July 25, 1985. His triggering offense was a 1984 rape. It is

unclear to this court when Mr. Wilson would be eligible for parole under the law in

effect at the time he was sentenced.



              With the passage of the Criminal Sentencing Reform Act of 1989, Tenn.

Code Ann. § 40-35-101 et seq., the Legislature totally revised the state’s criminal

code, replacing the drastic penalties associated with the habitual criminal statute with

a more graduated sentencing scheme. By the specific terms of the Act, the new

sentencing schedule was to apply only to persons sentenced on or after November

1, 1989. Tenn. Code Ann. § 40-35-117. According to Mr. Wilson, if he had been

sentenced under the new act, his sentence for simple rape would have been only

eight to twelve years.



                                         -2-
              In 1992, the Legislature enacted Tenn. Code Ann. § 40-35-601 et seq.,

which established a new body, the Parole Eligibility Review Board, to review the

sentences of those convicted as habitual criminals before November 1, 1989. The

Board was authorized to reconsider the parole eligibility dates of such offenders, but

a subsequent amendment excluded from review those offenders whose triggering

offense was “an offense against the person.”



              In appropriate cases the Board could grant a new release eligibility date,

comparable to that which the offender would have been eligible for if he were

convicted and sentenced under the 1989 Act. On June 30, 1993, the Board informed

Mr. Wilson by letter that upon reviewing his sentence and conviction history, it had

decided by a majority vote not to grant him a new RED.



                                           II.



              The Board went out of existence on July 1, 1993, in accordance with

Tenn. Code Ann. § 40-35-605, its work presumably completed. Several individuals

who had been sentenced as habitual criminals, and who were denied an accelerated

RED by the Board filed suit against it, asserting theories similar to those advanced by

Mr. Wilson in this case.



              In Powell v. Parole Eligibility Review Board, 879 S.W 2d 871 (Tenn.

App. 1994) we ruled that the decision to amend or not to amend a prisoner’s parole

eligibility date was discretionary with the Board, and was not merely a ministerial duty.

Although the petitioner in that case, and the petitioner in Smith v. Parole Eligibility

Review Board, 891 S.W.2d 226 (Tenn. App. 1995) both argued that it was a violation

of the equal protection clause for the Board not to treat all habitual criminals the same,

we found there to be no constitutional violation in the individualized consideration of

each prisoner’s record, to determine which of them might be appropriate candidates

for early release.

                                          -3-
                 We note that the statute provides that the decision of the Board is final

and not subject to further review, Tenn. Code Ann. § 40-35-602(c). However, this

court has found a narrow exception to that finality in that an individual who could prove

that the Board had exceeded its jurisdiction, or had acted illegally, fraudulently or

arbitrarily might be entitled to a Writ of Certiorari. Powell v. Parole Eligibility Review

Board, supra. But there is absolutely no evidence in the present case to indicate that

the Board has acted in reference to Mr. Wilson in such a way as would support a Writ

of Certiorari.



                                             III.



                 The petitioner also argues that it was a violation of his due process and

equal protection rights not to re-sentence him in accordance with the 1989 guidelines.

As the Assistant Attorney General points out in a well-written and comprehensive

brief, the argument that due process and equal protection requires the resentencing

of those convicted and sentenced under the earlier law has already been considered

and rejected in the case of State of Tennessee ex rel. Jones v. McWherter, Court of

Criminal Appeals No. 01-CO1-9204-CR-00124 (filed November 18, 1992).



                 In that case, the court summarized the law applicable to equal protection

claims as follows: Equal protection requires that all persons similarly situated be

treated alike, but the legislature may treat different groups differently, as long as the

classification it establishes for differential treatment is rational, and is related to a

legitimate state interest. (This is sometimes known as “the rational basis test.”) If the

classification disadvantages a suspect class, or affects the exercise of a fundamental

right, then the courts subject the classification to a higher standard of constitutional

examination, known as “strict scrutiny.” Under strict scrutiny, a statute will be upheld

only if it is “precisely tailored to serve a compelling government interest.” Personal

liberty is a fundamental right requiring application of strict scrutiny. See Doe v. Norris,

751 S.W.2d 834 (Tenn. 1988).

                                            -4-
              The Court of Criminal Appeals held that by virtue of his convictions and

lawfully imposed sentence, Mr. Jones had lost the fundamental right to personal

liberty for the duration of that sentence, and that the courts were therefore not

required to apply strict scrutiny to his claim that a subsequent change in the

sentencing laws was a violation of his equal protection rights. See also Wright v.

Trammel, 810 F.2d 589 (6th Cir. 1987).



              The court went even further, and held that even under the strict scrutiny

standard, the petitioner would not be entitled to relief, because of the compelling state

interest in preserving the finality of convictions and sentences that were valid at the

time of their imposition. We see no way in which the situation of Mr. Wilson differs

from that of Mr. Jones in the case referenced above, and therefore no reason to grant

him the relief that the Court of Criminal Appeals rightfully denied to Mr. Jones.




                                           IV.



              Mr. Wilson also claims that the trial court’s failure to grant him relief is

a violation of the constitutional prohibitions against ex post facto laws, and against

cruel and unusual punishment. Neither of these claims is supported by a coherent

argument or by any factual allegations. In the context of sentencing, an ex post facto

law is one which imposes a greater punishment for an offense than the law allowed

when the offense was committed. State v. Pearson, 858 S.W.2d 879 (Tenn. 1993).

That is clearly not the case here.



              Mr. Wilson is not the first person to argue that a reduction in the severity

of the punishment that may be imposed for a particular offense amounts to an implicit

finding by the legislature that the previous penalties constituted cruel and unusual

punishment. The Court of Criminal Appeals rejected the same argument in State of

                                          -5-
Tennessee ex rel. Jones v. McWherter, supra. The court noted that a primary

purpose for enacting the 1989 Sentencing Act was to address prison overcrowding.

The express exclusion of those sentenced before November 1, 1989, from the

provisions of the Act is a strong indication that the Legislature did not consider the

earlier law to be cruel and unusual punishment.



              Finally, Mr. Wilson has filed a motion with this court to be allowed to

supplement his brief by bringing to our attention a recent unpublished opinion of this

court, William Jones v. Jeff Reynolds, Appeal No. 01A01-9510-CH-00484 (filed

Nashville, July 2, 1997). Apparently the William Jones in that case is the same

individual as in the case of State ex rel Jones v. McWherter, supra. However the case

Mr. Wilson is so eager for us to see deals with the correct calculation of sentence

credits, and is not at all related to the parties or the issues before us.




                                           V.



              The order of the trial court is affirmed. Remand this cause to the Circuit

Court of Davidson County for further proceedings consistent with this opinion. Tax the

costs on appeal to the appellant.




                                           ________________________________
                                           BEN H. CANTRELL, JUDGE




CONCUR:




_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION

                                          -6-
_______________________________
WILLIAM C. KOCH, JR., JUDGE




                                  -7-
