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

ROBERT EARL SMITH,                    )             Cecil Crowson, Jr.
                                      )            Appellate Court Clerk
       Petitioner/Appellant,          )
                                      )   Appeal No.
                                      )   01-A-01-9804-CH-00201
VS.                                   )
                                      )   Davidson Chancery
                                      )   No. 97-3755-I
DONAL CAMPBELL,                       )
COMMISSIONER, DEPARTMENT              )
OF CORRECTION,                        )
                                      )
       Respondent/Appellee.           )


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

          THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR




ROBERT EARL SMITH, #117519
P. O. Box 1000
Henning, Tennessee 38041-1000
       Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General & Reporter

STEPHANIE R. REEVERS
Senior Counsel
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

an inmate by 30% on two occasions, following two incidents in which he assaulted

correctional officers. The inmate filed a petition asking the court to issue a declaratory

judgment that the Department had violated the constitutional prohibition against ex

post facto laws by extending his Release Eligibility Date. The trial court dismissed the

petition. We affirm.



                                            I.



              On July 27, 1987, Robert Earl Smith pled guilty to murder in the second

degree and assault with intent to commit murder.            For those crimes, he was

sentenced to forty years in the penitentiary. On January 9, 1991, he was found guilty

of assaulting a correctional officer, and his Release Eligibility Date (RED) was

extended by 30%. On July 29, 1991, he was found guilty of assaulting a different

correctional officer, and his RED was extended an additional 30%.



              Mr. Smith then filed a petition for a declaratory order with the Tennessee

Department of Correction, pursuant to Tenn. Code Ann. § 4-5-223, claiming that the

Department could not extend his RED, because such an action violated the prohibition

against ex post facto laws found in the U.S. and Tennessee Constitutions. The

Department declined to grant him the requested order.



              On November 13, 1997, Mr. Smith filed a petition for declaratory

judgment in the Davidson County Chancery Court. See Tenn. Code Ann. § 4-5-224.

The Department filed a motion to dismiss the petition for failure to state a claim upon

which relief can be granted. Tenn.R.Civ.P. 12.02(6). The chancellor granted the

Department’s motion, finding that it had not violated the ex post facto prohibition by

changing Mr. Smith’s RED. This appeal followed.




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                                          II.



              Mr. Smith’s argument on appeal is simply that the regulation the

Department used to extend his RED was not promulgated until after his 1987

conviction, and that it therefore cannot be applied to him. The chancellor found this

argument to be without merit, and we agree. At the time Mr. Smith was convicted,

Tenn. Code Ann. § 40-35-501 was in effect. That statute provided in part that:

              (h)     the release eligibility date provided for in this
              section shall be the earliest date a defendant convicted of
              a felony shall be eligible for release status; such date
              shall be conditioned on the defendant’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
              defendant is incarcerated, or while on any release
              program other than parole, the commissioner of correction
              or his designees, may defer the release eligibility date so
              as to increase the total amount of time a defendant must
              serve before becoming eligible for release 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 correction and which give notice of the length of
              discretionary increases that may be imposed for a
              violation of each of the rules of the department or
              institution . . . . [Acts 1982, ch. 868, §1]



              Mr. Smith’s RED was extended pursuant to Department of Correction’s

Disciplinary Punishment Guidelines, found in its Rule #502.02. The version of that

rule in effect at the time of the two assaults had an effective date August 1, 1990. It

states in relevant part:

              In all cases in which an inmate is found guilty of a
              disciplinary offense that resulted in physical injury to an
              employee, volunteer or visitor, in addition to any other
              punishment imposed, the offender’s parole or release
              eligibility date shall be extended by adding thereto an
              additional thirty percent (30%) of the offender’s original
              maximum sentence, or by extending the inmate’s parole
              or release eligibility date to the sentence expiration date,
              whichever is less.




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              The disciplinary reports appended to Mr. Smith’s petition indicate that

in both cases Mr. Smith was found to have struck correctional officers more than

once, and that the officers did sustain injuries.



                                            III.



              The United States Constitution, Article 1, § 10, forbids the states from

passing any ex post facto laws. The Tennessee Constitution, Article 1, § 11 contains

a similar prohibition. An early decision of the United States Supreme Court, Calder

v. Bull, 3 U.S. [3 Dall.] 386 (1798), laid down four broad classifications of ex post facto

laws, which have frequently been cited in discussions of the ex post facto clause by

the courts of this state, more or less as follows:

                     1.     A law which provides for the infliction of
              punishment upon a person for an act done which, when
              it was committed, was innocent.
                     2.     A law which aggravates a crime or makes it
              greater than when it was committed.
                     3.     A law that changes punishment or inflicts a
              greater punishment than the law annexed to the crime
              when it was committed.
                     4.     A law that changes the rules of evidence
              and requires less or different testimony than was required
              at the time of the commission of the offense in order to
              convict the offender.



Miller v. State 584 S.W.2d 758, 761 (Tenn. 1979). See also Kaylor v. Bradley, 912

S.W.2d 728 (Tenn. App. 1995).        A simpler explanation, derived from a more recent

case, is that an ex post facto law “changes the punishment, and inflicts a greater

punishment than the law annexed to the crime when committed.” Weaver v. Graham,

450 U.S. 24 (1981).



              The principle on which the ex post facto prohibition is based is one of

fairness -- the notion that persons have a right to fair warning of the conduct that will




                                           -4-
give rise to criminal penalties, Marks v. United States, 430 U.S. 188 (1977), and it

goes without saying, of the severity and nature of the possible penalties involved.



              In the present case, Mr. Smith’s eligibility for release was made

contingent upon his good behavior from the very moment of sentencing, and the

Commissioner had the discretion to defer that eligibility for any violation of the

Department’s rules. Tenn. Code Ann. § 40-35-501, supra. Thus “the law annexed

to the crime” committed by Mr. Smith, already included the possibility of the

punishment that was in fact imposed.



              Even if, as Mr. Smith asserts, the specific rule that the Department used

to extend his RED was not in effect at the time he was sentenced, it was certainly in

effect at the time he assaulted the correctional officers. Thus, Mr. Smith cannot argue

that he did not have fair warning of the possible consequences of an assault.



              Finally, we know of no case which holds, or even implies, that a prisoner

has a vested right not to be subjected to disciplinary rules that were put into effect

after he was sentenced. Such a holding would destroy the possibility of maintaining

consistent discipline in our prisons, for a different set of rules would apply to each

prisoner, and prison administration would collapse under the crushing burden of

differential enforcement.




                                          IV.



              The order 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.




                                         -5-
                                      ______________________________
                                      BEN H. CANTRELL,
                                      PRESIDING JUDGE, M.S.



CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE




_____________________________
WILLIAM B. CAIN, JUDGE




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