                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  February 10, 2003 Session

     SAMMY MILLER v. TENNESSEE BOARD OF PROBATION AND
                         PAROLES

                    Appeal from the Chancery Court for Davidson County
                      No. 01-2807-III  Ellen Hobbs Lyle, Chancellor



                      No. M2002-00426-COA-R3-CV - Filed May 8, 2003


The Board of Paroles declined to parole a prisoner in the custody of the Department of Correction.
He claimed that the Parole Board violated the constitutional prohibition against ex post facto laws
by following a different procedure to reach its decision than was in effect at the time of his crime.
The trial court dismissed the prisoner’s complaint for failure to state a claim for which relief can be
granted. We affirm the trial court.

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

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN , J. and
VERNON NEAL, SP . J., joined.

Patrick T. McNally, Nashville, Tennessee, for the appellant, Sammy Miller.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Pamela S.
Lorch, Assistant Attorney General, for the appellee, Tennessee Board of Probation and Parole.

                                             OPINION

                                      I. A PAROLE HEARING

       Sammy Miller was convicted of first degree murder in 1977 and sentenced to death. In 1979,
the Tennessee Supreme Court reduced his sentence to life imprisonment, holding that the procedure
in effect for imposing the death penalty at the time of Mr. Miller’s crime did not meet the
requirements of the Tennessee constitution. See Miller v. State, 584 S.W.2d 758 (Tenn. 1979).

         Mr. Miller eventually became eligible for parole. On May 1, 2001, he appeared at a parole
eligibility hearing before two members of the Tennessee Board of Probation and Parole. One of the
Board members voted to release Mr. Miller on parole subject to special conditions, while the other
voted to deny parole release, due to the seriousness of his offense.

        Over the next ten days, five other Board members cast their votes on Mr. Miller’s parole
application. Three voted to deny parole, and two voted to release Mr. Miller. Thus, the tally after
all Board members had voted was three in favor of parole and four against. Parole was denied, and
the prisoner’s next parole hearing was scheduled for May of 2006. Mr. Miller subsequently filed an
administrative appeal of the Parole Board’s decision, alleging significant procedural errors. The
allegations were reviewed, and the appeal denied.

                             II. PROCEEDINGS IN THE TRIAL COURT

         On September 7, 2001, Mr. Miller filed a complaint in the Chancery Court of Davidson
County, asking the court for a Writ of Certiorari to review the decision of the Parole Board. He
contended that at the time of his crime, a prisoner could be released on parole if three Parole Board
members voted in favor. However, in 1997 the legislature enacted an amendment to the parole
statute to require the concurrence of four Board members for release on parole of prisoners convicted
of any of twenty-six specified offenses. First degree murder was one of those offenses. See Tenn.
Code Ann. § 40-28-105(d)(4) [Acts 1997 ch. 488 § 1].

        Mr. Miller argued that he was entitled to the benefit of the parole procedures that were in
effect at the time of his crime and of his conviction, and that the application of the 1997 statute to
him was a violation of his substantive right to be protected against ex post facto laws. The Board
filed a motion to dismiss on the ground of failure to state a claim for which relief can be granted.
See Rule 12.02(6), Tenn. R. Civ. P. After a hearing, the chancellor filed a Memorandum and Order
on February 4, 2002. The court dismissed Mr. Miller’s complaint, holding that the amendment to
Tenn. Code Ann. § 40-28-105 was merely a procedural change which did not implicate the
prohibitions against ex post facto laws. This appeal followed.

                                      III. ISSUES ON APPEAL

                       A. THE BREADTH OF THE EX POST FACTO CLAUSE

        Both the Tennessee and United States constitutions prohibit the enactment of ex post facto
laws. Tenn. Constitution, Article 1, Section 11; U.S. Constitution, Article I, § 10, clause 1. A very
early case of the United States Supreme Court contains a definition of ex post facto laws that is still
relied upon by our courts, including the court that vacated Mr. Miller’s death sentence:

       “1st. Every law that makes an action done before the passing of the law; and which
       was innocent when done, criminal; and punishes such action. 2d. Every law that
       aggravates a crime, or makes it greater than it was, when committed. 3d. Every law
       that changes the punishment, and inflicts a greater punishment, than the law annexed
       to the crime, when committed. 4th. Every law that alters the legal rules of evidence,


                                                 -2-
       and receives less, or different, testimony, than the law required at the time of the
       commission of the offense, in order to convict the offender.”

Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798), quoted in Kaylor v. Bradley 912 S.W.2d 728, 731-
732 (Tenn. Ct. App. 1995). See also Miller v. State, 584 S.W.2d 758, 761 (Tenn.1979).

         The appellant argues that the statutes that were in place to regulate the operations of the
Board of Paroles at the time of his offense were a part of the punishment annexed to his crime, and
that Tenn. Code Ann. § 40-28-105(d)(4) inflicts a greater punishment on him than the law allowed
at that time, by making it more difficult for him to be paroled.

         He also claims the benefit of a more general definition of ex post facto laws, which our
Supreme Court used in the very case in which his death sentence was vacated: “[e]very law, which,
in relation to the offense or its consequences, alters the situation of a person to his disadvantage.”
584 S.W.2d at 761. See also Lynce v. Mathis, 519 U.S. 433 (1997).

        Notwithstanding this broad language, federal and state courts have made it clear that not
every change in the laws that may operate to the disadvantage of a given defendant are in violation
of the ex post facto prohibition, even if they were enacted after the commission of his crime. As the
United States Supreme Court said in Dobbert v. Florida, 432 U.S. 282 (1976),

         “[T]he constitutional provision was intended to secure substantial personal rights
       against arbitrary and oppressive legislation, and not to limit the legislative control of
       remedies and modes of procedure which do not affect matters of substance. . . . Even
       though it may work to the disadvantage of a defendant, a procedural change is not ex
       post facto.”

432 U.S. at 293.

       We note that in a case specifically involving parole procedures, California Department of
Corrections v. Morales, 514 U.S. 499 (1995), the United States Supreme Court declared that a
California statute which reduced the frequency of parole hearings for prisoners convicted of certain
crimes did not violate the ex post facto clause in regard to a prisoner who was convicted prior to
amendment.

        The Court stated that too expansive an interpretation of the ex post facto clause would
necessarily involve it in the “micromanagement of an endless array of legislative adjustments to
parole and sentencing procedures.” The court reasoned that such adjustments might create “some
speculative attenuated risk of affecting a prisoner’s actual term of confinement,” but that such a risk
was not an adequate justification for bringing the ex post facto provision into play.

       This does not mean that no possible change to the parole statutes can invoke the ex post facto
clause. But as this court said in Kaylor v. Bradley 912 S.W.2d 728 (Tenn. Ct. App. 1995), when


                                                 -3-
analyzing ex post facto claims, “[t]he outcome depends on the significance of the right involved and
the significance of the impairment. In close questions, the decisions oftentimes hinge on such subtle
factors as the court’s sense of fair play and justice.” 912 S.W.2d at 732.

       In the present case, we believe that Mr. Miller’s argument addresses a matter of procedure
only, and one which is within the legitimate purview of the legislature. While he may be
disappointed by the Parole Board’s action, we do not believe the manner in which it reached its
decision violated any of his constitutional rights. See Harris v. Traughber, No. M2000-01146-COA-
R3-CV (Tenn. Ct. App. July 13, 2001).

                     B. A PARTIAL HISTORY OF THE PAROLE STATUTES

         Appellant argues that the present case does not involve some merely speculative or attenuated
risk of affecting his term of confinement. He contends that if the unamended three-vote provision
had been applied, he would already be free, since three of the seven Board members voted to release
him. This argument is doubtful at best, as the somewhat convoluted history of the laws of parole in
this state demonstrates.

        Even a cursory examination of the legislative enactments relating to parole reveals just such
a process of continuous adjustments as the United States Supreme Court described in California
Department of Corrections v. Morales, supra. Any attempt to tailor the procedures of the Parole
Board for each prospective parolee, so as to make them to conform to the laws in effect at the time
of each prospective parolee’s crime would involve the Parole Board in an administrative nightmare,
and the courts in the very micromanagement the Supreme Court sought to avoid.

        In 1937 the Legislature created a Division of Pardons, Paroles and Probation with three
members and ten field officers. [Acts 1937, ch. 276 § 2]. In 1949 and 1961 the Legislature made
relatively minor revisions to the 1937 statute, [Acts 1949, ch. 18 §§ 1-3 and Acts 1961, ch. 93 § 1]
with the 1961 enactment adding the phrase “parole being a privilege and not a right,” to the statute.
In 1963 the Parole Board was made a division of the Department of Correction, and its membership
was increased to five, with the Commissioner of Correction as chairman. [Acts 1963, ch. 288 § 1].
A 1970 amendment declared, however, that the five members would be appointed by the governor.
[Acts 1970, ch. 488 § 1].

        A 1972 statute reduced the composition of the Board to its former size of three members.
[Acts 1972, ch. 636 §§ 1-8]. It also appears to be the first enactment to state that release on parole
would require a majority vote of the entire membership. In 1978 the Board was again increased to
five members, with three declared a quorum for transacting business. [1978 Acts, ch. 929 § 6]. A
1979 statute declared that the five members had to vote “by public ballot or public roll call, not by
secret ballot or secret roll call.” Further, no parole could be granted “except by majority vote of the
entire board.” [Acts 1979, ch. 359 §§ 5, 26].




                                                 -4-
        A 1988 enactment declared that “no person shall be paroled . . . without the concurrence of
three (3) board members.” [Acts 1988, ch. 880 § 3]. In 1989 the Board’s membership was increased
to seven. [Acts 1989, ch. 506 §§ 1-2]. As the appellant noted, in 1997 the legislature ratified the
previous requirement that three members agree on parole, except for 26 specific offenses, where the
concurrence of four members was required. [Acts 1997, ch. 488 § 1].

        It thus appears that if we wished to give Mr. Miller the benefit of the parole statute in effect
at the date he committed his offense (April 7, 1976), he would have to receive the affirmative votes
of a majority of a three member Board, rather than three out of seven votes by the members of a
larger Board. How this could possibly be accomplished, we do not know, but it is apparent to us that
if we followed the theory he is advocating, the whole system of parole would become unworkable.

                                 C. TENN. CODE ANN . § 40-35-117

       Mr. Miller seeks to bolster his argument by reference to Tenn. Code Ann. § 40-35-117 of the
Prisoner Sentencing Reform Act of 1989, which 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.

        The appellant argues that this law creates a statutory imperative that entitles him to the
benefits of the statutorily-mandated parole procedures in effect at the time of his crime. As we noted
above, even if we agreed with this argument, it is doubtful that Mr. Miller would be entitled to the
relief he seeks.

        But in any case, we believe the argument is misplaced. The sentencing statutes themselves
have long included provisions for determining what proportion of a maximum sentence an offender
must serve before becoming eligible for release. Eligibility for parole consideration is normally part
of the law annexed to the crime when committed, and thus a change of parole eligibility standards
to the possible detriment of prisoners sentenced under the earlier law may implicate ex post facto
concerns. Jaami v. Conley, 958 S.W.2d 123 (Tenn. Ct. App. 1997); Kaylor v. Bradley, 912 S.W.2d
728 (Tenn. Ct. App. 1995). See also Gilbreth v. Bradley, No. 01-A-01-9402-CH-00083 (Tenn. Ct.
App. Sept. 21, 1994).

        But parole itself stands on a different footing than parole eligibility. There is no constitutional
(or statutory) right to be paroled from a validly imposed sentence of imprisonment. Wells v.


                                                   -5-
Tennessee Bd. of Paroles, 909 S.W.2d 826 (Tenn. Ct. App. 1995); Greenholtz v. Inmates of Nebraska
Penal and Correctional Complex, 442 U.S. 1 (1979). Further, the grant of parole in Tennessee is a
discretionary matter, vested exclusively in the Board of Paroles. Doyle v. Hampton, 340 S.W.2d 891
(Tenn. 1960). Though the Board is charged with following the procedures set out by statute for
determining parole questions, we do not believe that those specific procedures should themselves be
considered a part of the law annexed to a prison sentence at the time of sentencing.

                                                 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,
Sammy Miller.



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




                                                 -6-
