                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                           Assigned on Briefs April 21, 2011

              JABARI ISSA MANDELA A/K/A JOHN H. WOODEN
                                 V.
               TENNESSEE DEPARTMENT OF CORRECTION

              An Appeal from the Chancery Court for Davidson County
                   No. 09-743-II   Carol L. McCoy, Chancellor

                         _________________________________

                 No. M2010-00829-COA-R3-CV - Filed July 29, 2011


This is a petition for declaratory judgment filed by an inmate seeking review of the
calculation of his prison sentence. The petitioner inmate filed two administrative petitions
for a declaratory order challenging the calculation of his sentence, and the respondent
Tennessee Department of Correction (“TDOC”) denied both petitions. Thereafter, the
petitioner filed the instant petition for declaratory judgment, arguing that his sentence was
improperly calculated. The parties filed cross-motions for summary judgment. The trial
court granted summary judgment in favor of TDOC. The petitioner now appeals. We affirm.

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.

Jabari Issa Mandela a/k/a John H. Wooden, Petitioner/Appellant, Pro Se

Robert E. Cooper, Jr., Attorney General and Reporter, and Kellena Baker, Assistant Attorney
General, for the Respondent/Appellee Tennessee Department of Correction

                                        OPINION

                            F ACTS AND P ROCEEDINGS B ELOW

Petitioner/Appellant Jabari Issa Mandela a/k/a John H. Wooden (“Petitioner”) is an inmate
in the custody of Respondent/Appellee TDOC. On June 23, 1982, Petitioner was convicted
on four counts of a ten-count indictment. He was sentenced as follows: Count 1 – second
degree burglary, 6 to 15 years imprisonment (indeterminate); Count 2 – aggravated rape (a
Class X offense), life imprisonment; Count 4 – aggravated assault, 3 to 9 years imprisonment
(indeterminate); and Count 10 – aggravated sexual battery (a Class X offense), 35 years
imprisonment.1 The criminal court ordered all counts to be served consecutively. The
convictions were affirmed on appeal. See State v. Wooden, 658 S.W.2d 553 (Tenn. Crim.
App. 1983).

When Petitioner was sentenced, he was sentenced under the Class X Felony Act of 1979 for
his convictions on Counts 2 and 10. T.C.A. § 39-1-701, et seq. (repealed); see Davis v.
Campbell, 48 S.W.3d 741, 746 (Tenn. Ct. App. 2001). Under that Act, a Class X sentence
could not be reduced by good behavior or work incentive credit; in fact, it could not be
reduced by any sentence credit of any sort. T.C.A. § 39-1-703(2) (repealed), cited in Jordan
v. Campbell, No. M1999-00540-COA-R3-CV, 1999 WL 1015581, at *1 (Tenn. Ct. App.
Nov. 10, 1999). In 1983, the laws were amended to allow certain Class X prisoners to earn
“prisoner performance sentence credits,” or PPSC. PPSCs would reduce a prisoner’s
sentence expiration date, but not his parole eligibility date. See Taylor v. Campbell, No.
M2001-00479-COA-R3-CV, 2003 WL 22248231, at *4 (Tenn. Ct. App. Oct. 1, 2003);
T.C.A. § 41-21-230 (repealed).

In 1985, the laws were again amended. The 1985 amendment established a new system that
permitted Class X offenders to earn “prisoner sentence reduction credits,” or PSRCs.2 The
PRSCs could reduce prisoners’ sentence expiration dates as well as their parole eligibility
dates. Taylor, 2003 WL 22248231, at *4; see T.C.A. § 41-21-236 (2010).

Under the 1985 Act, a person convicted of a Class X crime prior to December 11, 1985 could
become eligible for PRSCs under the new statute. To become eligible, the convicted person
was required to sign a written waiver, waiving his right to serve his sentence under the law
that was in effect when the crime was committed and agreeing to serve his sentence under




1
 The convictions on Count 2 and Count 10 were considered to be “Class X” felonies under the Class X
Felonies Act of 1979. T.C.A. § 39-1-701, et seq. (repealed). Although that Act has since been repealed, the
“Class X” felony classification remains effective for the Petitioner’s sentence in this case. See Depriest v.
State, No. W2003-02561-CCA-R3-HC, 2004 WL 1872897, at *2 (Tenn. Crim. App. Aug. 20, 2004).
2
    The 1985 amendment was included in the Tennessee Comprehensive Correction Improvement Act of 1985.

                                                    -2-
the new law. T.C.A. § 41-21-236(c)(3).3 The credits could then be awarded “from and after
the date a person becomes eligible under this subsection (c).” Id.

Once the 1985 law went into effect, Petitioner in the instant case sent written inquiries to
TDOC officials, asking them whether signing the statutory waiver would be beneficial to
him. It appears that there was no clear answer to that question. At some point, Petitioner
was advised that it would be advantageous for him to sign the waiver to become eligible for
the sentence credits for his Class X offenses. Nevertheless, for a period of time, he refused
to sign the waiver. Eventually, on April 27, 2005, Petitioner signed the statutory waiver; this
made him eligible to earn credits toward his Class X sentences under the 1985 law. TDOC
made Petitioner’s waiver retroactive to January 10, 1989, based on TDOC’s determination
that this was the expiration date of Petitioner’s sentence on Count 1, and that January 10,
1989 was the earliest date on which Petitioner could have benefitted from the new law.
Petitioner disagreed. He thought that the waiver should have been effective as of April 1,
1986, the date on which he claimed the 1985 Act became effective.4

In July 2005, Petitioner filed a petition with TDOC for a declaratory order, seeking a
contested case hearing on “the issue of whether the sentence management system staff
improperly calculated his initial sentence by not certifying his sentence for custodial parole,
not continuing to hold his sentences in abeyance as required under prior law and not back
dating his waiver [under Section 41-21-236(c)(3)] to begin in April 1986.” TDOC denied
this petition. It explained to Petitioner that “custodial parole did not apply to indeterminate
sentences in a consecutive string.” It further told him that “it would have been detrimental
to [Petitioner] if you had signed a waiver on your determinate sentences. Indeterminate



3
    That subsection provides:

           (3) Any person who committed a felony, including any Class X felony, prior to December
           11, 1985, may become eligible for the sentence reduction credits authorized by this section
           by signing a waiver, in writing, of the right to serve the sentence under the law in effect at
           the time the crime was committed. However, sentence reduction credits authorized by this
           section may be awarded only for conduct or performance from and after the date a person
           becomes eligible under this subsection (c).

T.C.A. § 41-21-236(c)(3).
4
 The historical notes to the 1985 Act indicate that the statute became effective on December 11, 1985, for
the purpose of establishing rules, regulations, and criteria for the awarding, deprivation, removal, and
administration of prisoner sentence reduction credits. However, for purposes of actually beginning such
prisoner sentence reduction credit program and awarding sentence reduction credits thereunder, this section
took effect on March 1, 1986. See T.C.A. § 41-21-236 (1985) (historical notes).

                                                        -3-
sentences have built in good conduct and the signing of a waiver would have extended your
[sentence] Expiration Date (EXP).” 5

In November 2006, Petitioner filed another petition with TDOC for declaratory relief.
Petitioner again requested a contested case hearing. The purpose of this contested case
hearing was “to determine whether the agency’s calculation of his first [sentence] . . . and his
string of ‘mixed’ consecutive sentences . . . had not been correctly calculated, which resulted
in each of his sentences being lengthened by not certifying his parole eligibility for each
consecutive sentence, a violation of the Ex Post Facto Clause of the State and Federal
Constitution and other statutory provisions.” TDOC denied Petitioner’s November 2006
request, stating that there were no ex post facto issues, and that the claim in his petition was
essentially the same as the claim in Petitioner’s July 2005 petition for administrative
declaratory relief.6

On April 15, 2009, Petitioner filed the instant petition for declaratory judgment pursuant to
Tennessee Code Annotated § 4-5-225 of the Tennessee Administrative Procedures Act. He
claimed that his petition was filed to “challenge the legal validity of [TDOC’s] declaratory
order refusing to grant a contested case hearing regarding the question of whether [TDOC]
failed to correctly calculate his string of consecutive sentences under the State sentence laws
at the time the crimes were committed, deferring his parole eligibility date(s) on each
sentence without due process of law, requiring him to completely serve the initial sentence
without parole board’s consideration to determine the commencement of his second
consecutive sentence.” Petitioner summarized his claim in paragraph 20 of his petition:

        [TDOC] calculated [P]etitioner’s initial sentence of six to fifteen (6 - 15) year
        term as if it was without the possibility of parole, by not certifying him eligible
        for custodial parole after he serve[d] the amount of time to reach parole
        eligibility, which resulted in an increase of each of his individual sentences,
        and additionally by not certifying him eligible for retroactive custodial parole
        after he reach[ed] eligibility on each subsequent individual sentence.

He requested a declaratory judgment that TDOC erred in calculating his parole eligibility for
each of his sentences in accordance with the laws that existed at the time of the crimes. He


5
 Neither this administrative petition nor TDOC’s denial of the petition is included in the appellate record,
but both are referred to in the pleadings and filings with the trial court below.
6
 As with the July 2005 petition, neither the administrative petition nor TDOC’s denial of the petition is
included in the appellate record, but both are referred to in the pleadings and filings with the trial court
below.

                                                    -4-
also asserted that TDOC erred by not awarding him sentence credits retroactive to April
1986.

On September 14, 2009, TDOC filed a motion for summary judgment. In the motion, TDOC
argued that the facts were undisputed, that it had properly calculated Petitioner’s release
eligibility date for each of his consecutive sentences, and that Petitioner’s overall release
eligibility date had been determined properly in accordance with Tennessee Code Annotated
§ 40-35-501(l).7 In addition, TDOC argued that Petitioner did “not have any sentence that
[made] him eligible for parole,” because custodial parole applies only to cases involving
consecutive determinate sentences.8 See Howell v. State, 569 S.W.2d 428, 430 n.1 (Tenn.
1978). Because Petitioner did not receive a determinate sentence for a non-Class X offense,
TDOC argued, he was not eligible for custodial parole.

In support of its motion for summary judgment, TDOC submitted the affidavit of its Director
of Sentence Management Services, Candace Whisman (“Whisman”), along with attached
documents. In her affidavit, Whisman explained in detail TDOC’s calculation of the release
eligibility date (“RED”) for all of the Petitioner’s sentences. She stated that Petitioner
“received sentences in accordance with the sentence laws that existed at the time the crimes
were committed and all sentences are calculated accordingly.” In her calculations, Whisman
credited Petitioner with the maximum number of good conduct credits (“GCC”) that could
potentially have been earned throughout the sentence, despite the fact that Petitioner did not
actually earn those credits in advance. She asserted that Petitioner was “not eligible for
custodial parole consideration on any of his sentences,” because “he did not receive any
determinate sentences.” Whisman’s affidavit included a graphic illustration of how she
calculated Petitioner’s sentence:

Count 1
Sentence imposed date for count 1 (6 to 15 years)                               6-23-1982
minus pretrial jail credit                                                      - 159 days


7
    That subsection provides:

           (l) The release eligibility date provided for in this section is separately calculated for each
           offense for which a defendant is convicted. For consecutive sentences, the periods of
           ineligibility for release are calculated for each sentence and are added together to determine
           the release eligibility date for the consecutive sentences.

T.C.A. § 40-35-501(l) (2010).
8
 A determinate sentence is a specific sentence with no minium or maximum. All others, except for life
sentences, are indeterminate. Howell v. State, 569 S.W.2d 428, 430 n.1 (Tenn. 1978).

                                                        -5-
Equals sentence effective date                                     1-15-1982
Plus 6 years (minimum sentence on count 1)                         + 6 years
Equals                                                             1-15-1988
minus GCC- count 1                                                 -2 yrs 4 mos
Equals Regular Parole (RP) date                                    9-15-1985
minus 6 months for Probationary Parole (PP) date                   - 6 months
Equals Probationary Parole (PP) date                               3-15-1985
minus 704 days PPSC- count 1                                       - 704 days
Equals final Probationary Parole (PP) date                         4-12-1983

Count 2
Plus 30 years on life sent.- count 2 (Class X)                     + 30 yrs
Equals Release Eligibility Date (RED)                              4-12-2013
minus 2,004 PSRC- count 2                                          - 2,004 days
Equals final Release Eligibility Date (RED)                        10-17-2007

Count 4
Plus 3 years (minimum sentence on count 4)                         + 3 yrs.
Equals                                                             10-17-2010
minus GCC- count 4                                                 - 1 yr 1 mo.
Equals Regular Parole (RP) date                                    9-17-2009
minus 6 months for Probationary Parole (PP) date                   - 6 months
Equals Probationary Parole (PP) date                               3-17-2009
minus 129 PPSC- count 4                                            - 129 days
Equals final Probationary Parole (PP) date                         11-11-2008

Count 10
Plus 35% of 35 yrs- count 10                                       +12 yr. 3 mos.
Equals Release Eligibility Date (RED)                              2-11-2021
minus PSRC- Class X count 10                                       - 36 days
Equals current overall Release Eligibility Date (RED)              1-5-2021

On October 30, 2009, Petitioner filed a reply to TDOC’s summary judgment motion, and he
also filed a cross-motion for summary judgment. In Petitioner’s reply/motion, he argued that
TDOC’s “combining the minimal of his mixed string of consecutive sentences to determine
the eligibility date for his parole hearing without specific authorization by a state statute, is
illegal.” He contended that “the subsequent refusal to certify him eligible for custodial parole
hearing as he reach[es] eligibility on each of his separate sentences violated state law.” In
support of his motion for summary judgment, Petitioner filed his own affidavit. Petitioner’s
affidavit included, among other things, a sentence credit chart that set out the number of

                                               -6-
credits he believed should have been credited to him each month from 1982 through August
2009. According to Petitioner, Whisman’s calculations omitted 856 prison credits to which
he is entitled. Petitioner claimed that his indeterminate sentence for Count 1 should have
ended in 1983 rather than on January 10, 1989, and that, therefore, it would have benefitted
him for his signed waiver to have been made retroactive to April 1, 1986.

On December 3, 2009, TDOC filed its response to Petitioner’s motion for summary
judgment. In addition to its other arguments, TDOC argued that Petitioner did not exhaust
his administrative remedies in that he failed to seek a declaratory order from TDOC
regarding the issues presented. For this reason, TDOC claimed, Petitioner’s summary
judgment motion should be denied and his lawsuit should be dismissed. TDOC also argued
that Petitioner’s complaint should be dismissed based on the doctrine of res judicata, because
Petitioner admitted his previous litigation on whether his sentence was properly calculated.

On March 8, 2010, the trial court entered an order granting summary judgment in favor of
TDOC. The trial court first recognized that Petitioner had filed at least three chancery court
cases on the subject matter of his sentence calculation, commenting that “the court of appeals
may have already addressed the arguments that the Petitioner makes in the present case.”
The trial court opined that, “[i]f so, this case is subject to dismissal under the doctrine of res
judicata.” The trial court then held that TDOC was entitled to summary judgment on
Petitioner’s claim that his sentence was improperly calculated because Whisman’s affidavit
demonstrated that TDOC’s calculation of his release eligibility date accurately accounted for
all of the sentencing credits due to Petitioner. The trial court also held that TDOC properly
refused to treat Petitioner’s waiver as effective retroactively to April 1986, because Petitioner
did not sign the waiver until April 27, 2005, and the statute permitting the waiver made it
effective prospectively from the date the waiver was signed. T.C.A. § 41-21-236(c)(3).
Finally, the trial court rejected Petitioner’s claim that TDOC erred by not certifying him as
eligible for custodial parole on his first sentence, because his sentences were not eligible for
custodial parole. From this order, Petitioner now appeals.

                        I SSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Petitioner states in his brief the following issues for our review:9



9
 As sometimes happens in cases involving the review of the calculation of an inmate’s sentence,
“[a]scertaining the basis for [the Petitioner’s] disagreement with the Department’s calculations is difficult.”
Washington v. TDOC, No. M2002-02651-COA-R3-CV, 2005 WL 309359, at *3 (Tenn. Ct. App. Feb. 8,
2005). In our analysis, we attempt to address all of the arguments fairly made by Petitioner in his appellate
brief.

                                                     -7-
       1. Whether the trial court erred in finding that the claim presented in the
       petition for declaratory judgment was barred under the doctrine of res
       judicata?

       2. Whether the trial court erred in declaring that TDOC correctly calculated
       Petitioner’s consecutive sentences:
                      a. by concluding that Petitioner’s parole eligibility and
              release eligibility for each of his consecutive sentences may be
              added together to form one parole eligibility date,
                      b. by employing arbitrary procedures which deprived
              him of the right to sign the waiver to earn sentence credits to
              reduce his Class X sentences which otherwise his sentences
              would not be reduced, and
                      c. by not accurately tabulating the correct amount of
              sentence credits he earned each month?

The trial court’s grant of summary judgment in favor of TDOC must be reviewed de novo
on the record, with no presumption of correctness in the trial court’s decision. Brady v.
TDOC, No. M2009-02387-COA-R3-CV, 2010 WL 2670825, at *2 (Tenn. Ct. App. July 2,
2010). Upon review we “must make a fresh determination that the requirements of Tenn. R.
Civ. P. 56 have been satisfied.” Mathews Partners, LLC v. Lemme, No. M2008-
01036-COA-R3-CV, 2009 WL 3172134, at *3 (Tenn. Ct. App. Oct. 2, 2009) (citing Hunter
v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1977)). Summary judgment should be rendered only
“if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04.

                                          A NALYSIS

                                   Exhaustion of Remedies

It is well settled that an inmate may seek judicial review of TDOC’s calculation of his prison
sentence, including reduction credits, pursuant to the Tennessee Administrative Procedures
Act, Tennessee Code Annotated § 4-5-101, et seq. Section 4-5-225(a) provides that a
declaratory judgment may be sought on “[t]he legal validity or applicability of a statute, rule
or order of an agency to specified circumstances . . . .” T.C.A. § 4-5-225(a). Such relief is
available only if “the complainant has petitioned the agency for a declaratory order and the
agency has refused to issue a declaratory order,” i.e., the inmate has first requested a




                                               -8-
declaratory order from TDOC, and TDOC denied the requested relief.10 T.C.A. § 4-5-225(b);
see Bonner v. TDOC, 84 S.W.3d 576, 583 (Tenn. Ct. App. 2001). “Absent evidence that
such an order was sought, the petition must be dismissed for lack of subject matter
jurisdiction.”      Bonner, 84 S.W.3d at 583; see Stewart v. Ray, No.
M2010–01808–COA–R3–CV, 2011 WL 1938280, at *3 (Tenn. Ct. App. May 19, 2011).

In the instant case, the petition states that Petitioner filed petitions for declaratory judgment
with TDOC in July 2005 and November 2006, that both petitions raised the issues in this
lawsuit, and that TDOC denied both petitions.11 On this basis, we find that Petitioner
exhausted his administrative remedies, and that the instant petition for declaratory judgment
was properly before the trial court.

                                                Res Judicata

Petitioner asserts on appeal that the trial court erred in determining that his petition was
barred under the doctrine of res judicata. He argues that res judicata is inapplicable because
his previously filed lawsuits, mentioned by the trial court, did not involve the same issues
presented in the case at bar. In addition, he claims that two of the three lawsuits cited by the
trial court were dismissed for lack of subject matter jurisdiction. Because those lawsuits
were not an adjudication on the merits, he argues, they are not a bar to subsequent claims on
the same subject matter.

Instead of disputing Petitioner’s argument on res judicata, TDOC asserts that res judicata
was not the basis for the trial court’s decision. Although the trial court discussed res
judicata, TDOC contends, it then went on to address the merits of Petitioner’s petition.
Therefore, TDOC claims, Petitioner’s res judicata argument is not a basis for reversal.

It is undisputed that Petitioner has filed at least three lawsuits in chancery court challenging
the calculation of his 1982 prison sentence.12               See Mandela v. Reynolds, No.


10
   Neither the statute nor the cases specify the exact form for such a request for a declaratory order from the
agency. This Court has held that “any written request which makes the agency aware of the substance of the
controversy and asks the agency to act in accordance with a suggested course of action is sufficient.” Stewart
v . Ray, No. M2010–01808–COA–R3–CV, 2011 WL 1938280, at *3 (Tenn. Ct. App. May 19, 2011).
11
 A petitioner has ten years from the date of the agency’s denial of his administrative petition to bring a
petition for declaratory judgment under Section 4-5-225. Hughley v. State, 208 S.W.3d 388, 395 (Tenn.
2006).
12
     Petitioner is no stranger to litigation. In a prior appeal, this Court described him as “somewhat of a
                                                                                                (continued...)

                                                       -9-
01-A-01-9303-CH00126, 1993 WL 236607 (Tenn. Ct. App. June 30, 1993); Johnson v.
McWherter, No. 01-A-019203-CH-00103, 1992 WL 156102 (Tenn. Ct. App. July 8, 1992);
Mandela v. Reynolds, 1990 WL 192731 (Tenn. Ct. App. Dec. 5, 1990). Although it appears
that many of the issues raised in the instant case were also raised in Petitioner’s previous
lawsuits, it is unclear whether any of those issues were decided on the merits in the prior
litigation. In fact, Petitioner correctly notes that two of the lawsuits were dismissed based
on lack of subject matter jurisdiction, and a third one was dismissed based on the res judicata
effect of the holding in one of the first lawsuits. Therefore, it is questionable whether
Petitioner’s prior lawsuits were decided on the merits, and consequently whether they would
have any preclusive effect. See Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct. App. 1990).

Regardless, we agree with TDOC that the trial court’s decision was not based on res
judicata. Although res judicata was discussed, the trial court in fact went on to address the
merits of Petitioner’s petition for declaratory judgment. For this reason, we find that
Petitioner’s res judicata argument is not a basis for reversal of the trial court’s decision.

                                       Calculation of Sentence

Petitioner next argues that the trial court erred in concluding that TDOC correctly calculated
the release eligibility date for each of his consecutive sentences. Petitioner claims that
TDOC inappropriately sentenced him in accordance with Section 40-35-501(l), because that
statute was not yet in effect in 1982 when the underlying crimes were committed. This, he
claims, violated the ex post facto provisions of both the state and federal constitutions.
Petitioner also makes the same argument that he made in the administrative proceedings
regarding his sentencing credit waiver, i.e., he claims that the trial court erred in refusing to
treat his waiver as though it were effective on April 1, 2006. Finally, Petitioner argues that
the trial court erred in holding that he was not eligible for parole on any of his sentences. He
states that there was “an actual increase in punishment by TDOC requiring the appellant to
complete his first sentence without parole consideration.”



12
  (...continued)
litigation mill during his two [now three] decades behind bars.” Mandela v. Campbell, No. M1998-00208-
COA-R3-CV, 2003 WL 727320, at *1 (Tenn. Ct. App. Mar. 4, 2003). In 1983, Petitioner was approved as
an inmate legal helper, and in that capacity he filed numerous cases against various prison authorities and
others. Mandela v. Campbell, No. M2001-01956- COA-R3-CV, 2003 WL 174788, at *1 (Tenn. Ct. App.
Jan. 28, 2003). In 2000, the federal District Court for the Western District of Tennessee enjoined Petitioner
from representing himself in any more in forma pauperis petitions, because he had previously filed five
frivolous lawsuits, and also enjoined him from filing pleadings on behalf of other inmates in that court.
Subsequently, as a result of that decision, Petitioner’s warden rescinded approval for him to act as an inmate
legal helper. See id.

                                                    -10-
A petitioner seeking to establish an ex post facto claim with respect to his sentence must
show that a change in the law has adversely affected the petitioner’s release date. This Court
has recognized that, in order “to prevail with an ex post facto claim, a prisoner must show
more than a speculative or attenuated possibility that the new statute, rule, or policy may
result in more time in prison.” Utley v. TDOC, 118 S.W.3d 705, 717 (Tenn. Ct. App. 2003).
Rather, he must show that “the retroactive application of the new statute, rule, or policy
either will result in a longer period of incarceration or creates a significant risk of increasing
the period of his or her incarceration.” Id.

In this case, TDOC applied Section 40-35-501(l) in calculating Petitioner’s sentence. That
statute provides specifically that an inmate’s release eligibility date must be “separately
calculated for each offense for which a defendant is convicted.” T.C.A. § 40-35-501(l). The
statute further provides that, when a defendant receives consecutive sentences, “the periods
of ineligibility for release are calculated for each sentence and are added together to
determine the release eligibility date for the consecutive sentences.” Id.

In our view, the statute is not a change from the manner in which consecutive sentences were
calculated under prior law. In this context, the term “consecutive” means “that the first
sentence is to be completed before the second sentence begins, and so on in succession until
all sentences have been consecutively served.” Mandela, 1993 WL 236607, at *1. “The
theory of consecutive or cumulative sentencing is that where a criminal defendant has been
convicted of two or more offenses, his malefactions may merit separate and cumulative
penalties.” Howell, 569 S.W.2d at 432-33.

Petitioner does not explain how his consecutive sentences would have been calculated
differently under preexisting laws. He simply argues that his rights were violated because
the statute applied by TDOC became effective after his underlying crime was committed.
In Attorney General Opinion 82-345, 1982 WL 177541 (July 2, 1982), issued just after
Petitioner was sentenced, Tennessee’s Attorney General opines that, under the law in effect
at the time, the “aggregation of consecutive indeterminate sentences is proper.” Petitioner
points us to no contrary authority, and we have found none. Consequently, we must conclude
that Petitioner has not carried his burden of proving an ex post facto violation.

Next, Petitioner claims that the trial court erred in failing to require TDOC to make his
Section 41-21-236(c)(3) waiver retroactive to April 1, 1986. He claims that TDOC officials
erroneously determined that his first sentence expired and his life sentence began in January
1989. Based on this misinformation, Petitioner argues, prison officials were confused and
erroneously informed him about his rights under the waiver, and that this false information
led him to delay signing the waiver until 2005. Because he was initially not fully informed



                                              -11-
of his right to participate in the program from the beginning, Petitioner argues, the waiver
that he signed should have been made effective as of April 1, 1986.

The trial court rejected this argument based on the plain language of the applicable statute,
which provides that the “sentence reduction credits authorized by this section may be
awarded only for conduct or performance from and after the date a person becomes eligible
under this subsection (c).” T.C.A. § 41-21-236(c)(3) (emphasis added). Thus, a person
“becomes eligible” only after the waiver is actually signed. Therefore, the trial court held,
TDOC did not act improperly in refusing to make the effective date of the waiver retroactive
to April 1, 1986.

Petitioner admits that he did not sign the waiver until April 27, 2005, despite having been
advised previously that it would been beneficial for him to do so. Even so, TDOC made the
waiver retroactive to January 10, 1989, the date of the expiration of Count 1, effectively
giving Petitioner the maximum benefit under the waiver.13 We agree with the reasoning of
the trial court. Because the statute specifically makes the effect of the waiver prospective
from the time the waiver is signed, TDOC was under no obligation to make it retroactive to
April 1, 1986.14

Finally, Petitioner argues that TDOC was required to certify him as eligible for custodial
parole on his first sentence. In his petition for declaratory judgment, Petitioner claimed that
TDOC “calculated petitioner’s initial sentence . . . as if it was without the possibility of
parole, by not certifying him eligible for custodial parole after he serve[d] the amount of time
to reach parole eligibility . . . .” It is difficult to discern from Petitioner’s argument the basis
on which he claims he was entitled to a custodial parole hearing, or when he believed he had
“reach[ed] parole eligibility.”15 Relying on the reasoning in Attorney General Opinion 82-
345, the trial court held that “the Board of Paroles is not required to consider inmates having


13
  The record does not reflect TDOC’s reason for making Petitioner’s waiver retroactive, rather than making
it effective from the time the waiver was signed.
14
  In any event, if TDOC’s calculation of Petitioner’s sentence were correct, it appears that Petitioner received
the maximum benefit under the waiver, and that it may have been detrimental to him to make the waiver
retroactive to April 1, 1986.
15
  The Supreme Court has explained that “parole” is “nothing more than a conditional suspension of a
sentence.” Howell, 569 S.W.2d at 432. An inmate who is “granted custodial parole is not released in the
community at that time but is afforded the opportunity to begin serving his consecutive sentence at an earlier
date.” A.G.O. 98-089, 1998 WL 227249 (Apr. 15, 1998). Thus, as we discern his argument, Petitioner
claims that he should have been granted a custodial parole hearing and that, from this, he may have been able
to begin his consecutive sentences on an earlier date. At no time was Petitioner entitled to be released into
the community before the release eligibility date of his final sentence.

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consecutive indeterminate sentences for ‘custodial parole.’” Because Petitioner was serving
consecutive sentences for two indeterminate sentences and two Class X sentences, the trial
court held, he was not eligible for custodial parole.

Whisman’s affidavit reflects that TDOC calculated Petitioner’s sentence based on the
minimum sentence of 6 years on Count 1, and that it calculated Petitioner’s parole eligibility
date for this sentence after accounting for all possible sentencing credits. Each of
Petitioner’s consecutive sentences began to run on the probationary parole dates or release
eligibility dates of the previous sentence. Petitioner cites no authority for his argument that
he was entitled to a custodial parole hearing to obtain an earlier parole date. Attorney
General Opinion 82-345, relied upon by the trial court, states that “[t]he Board of Paroles is
not required to consider inmates serving consecutive indeterminate sentences for ‘custodial
parole.’” Atty. Gen. Op. 82-345, at *1. We agree with this statement in the context of this
case, because Petitioner’s sentence was calculated on the basis of the minimum of his
indeterminate sentences. For indeterminate sentences, “no prisoner shall be released until
he has served [the] minimum [of an indeterminate] sentence nor until he shall have served
one (1) year.” T.C.A. § 40-28-115(a) (formerly § 40-3612). Only after such an inmate has
served his minimum sentence may he be “subject to the jurisdiction of the [B]oard of
Paroles.” Id. Therefore, we find no basis for Petitioner’s assertion that he was entitled to
a custodial parole hearing.

                                        C ONCLUSION

       The decision of the trial court is affirmed. Costs on appeal are to be taxed to
Appellant Jabari Issa Mandela a/k/a John H. Wooden, and his cash bond as surety, for which
execution may issue, if necessary.




                                                    _________________________________
                                                    HOLLY M. KIRBY, JUDGE




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