                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                            March 2000 Session

  JOHNNY PHELPS v. TENNESSEE DEPARTMENT OF CORRECTION

                    Appeal from the Chancery Court for Davidson County
                       No. 98-186-II   Carol L. McCoy, Chancellor



                     No. M1999-02109-COA-R3-CV - Filed July 28, 2000


Petitioner/Appellant, a state prisoner, filed his petition for common law certiorari asserting that he
was being unconstitutionally and illegally incarcerated by the state and had not been given proper
credits under various sentence reduction credit statutes and policies. The trial court granted
summary judgment and Petitioner appealed. We affirm.

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

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

Johnny Phelps, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Pamela
S. Lorch, Assistant Attorney General, for the appellee, Tennessee Department of Correction.


                                             OPINION

                                                  I.

        Petitioner, Johnny Phelps, was convicted of rape on December 14, 1973 and sentenced to a
term of 99 years in prison. On February 21, 1975, he was convicted of assault with intent to commit
murder and felony attempt to escape for which he received consecutive sentences of 1 to 2 years on
each charge.

                                                 II.

      In this appeal, Petitioner first asserts that he is entitled to have his sentences revised to
conform with the Criminal Sentencing Reform Act of 1989. He argues that failure to re-sentence
him under the 1989 Act violates the Equal Protection Clause of the United States Constitution and
of the Constitution of Tennessee. In responding to these constitutional objections, the trial court,
on October 26, 1998, filed a Memorandum and Order providing in part as follows:

               Petitioner, an inmate in custody of the Tennessee Department of Correction,
       has filed a Declaratory Judgment action and/or Petition for Common-Law Writ of
       Certiorari challenging four aspects of his sentence. He alleges the following:
       constitutional and statutory violations because his sentence is not in compliance with
       the Criminal Sentencing Reform Act of 1989; violation of state law in regard to his
       sentence credit calculation; allegations that Respondent failed to rescind his waiver
       per his request; and constitutional and statutory violations because his release
       eligibility date was extended after a disciplinary conviction for assault. The
       Respondent moves for summary judgment.

              Petitioner was sentenced to 2 to 103 years for offenses committed on July 10,
       1973 and May 31, 1974. Specifically, he received a 99 year sentence for rape with
       a consecutive 1 to 2 year sentence for assault with intent to murder and attempt to
       commit felony escape. He received a separate 1 to 2 year sentence for a second
       conviction of assault with intent to murder.

              Petitioner contends the 1989 Sentencing Act should apply to his convictions.
       Application of the 1989 Act would impose a lesser sentence for the offenses
       committed by Petitioner. T.C.A.§ 40-35-117(c) clearly states the 1989 Act does not
       apply to the Petitioner. It provides:

               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.

               Petitioner contends T.C.A. §39-1-105 (repealed in 1989 and replaced by § 39-
       11-112) requires he be resentenced under the 1989 Sentencing Act and the equal
       protection clause of the U.S. and Tennessee Constitutions requires the application of
       the 1989 Act to his convictions.

               T.C.A. §39-1-105 provided:

                       Repealed or amended laws – Application in
                       prosecution for offense – Whenever any penal statute
                       or penal legislative act of the state is repealed or
                       amended by a subsequent legislative act, any offense,
                       as defined by such statute or act as being repealed or
                       amended, committed while such statute or act was in
                       full force and effect shall be prosecuted under such act
                       or statute in effect at the time of the commission of
                       the offense. In the event the subsequent act provides

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                       for a lesser penalty, any punishment imposed shall be
                       in accordance with the subsequent act.

               T.C.A.§39-1-105 does not apply to convictions and sentences which were
       already received when a subsequent act provided for a lesser penalty. The statute
       applies to active prosecutions, not past cases for which sentences are being served.
       State ex. rel. Stewart v. McWherter, 857 S.W.2d 875 (Tenn. Crim. App. 1992).
       Furthermore, there is no equal protection violation by not applying the 1989 Act to
       Petitioner’s sentence. While the equal protection clause states that all persons
       similarly situated must be treated alike, the legislature may treat a class of persons
       differently so long as the classification has a rational relationship to a legitimate state
       interest. In State ex. rel. Bobby L. Crum v. McWherter, No. 02C01-9108-CC-0018
       (Tenn. Crim. App., at Jackson, May 13, 1992), the Court of Criminal Appeals
       utilized a rational relationship test to uphold an equal protection challenge based on
       pre-1989 and post-1989 kidnapping sentences. The court in Crum found a rational
       basis for the distinction based upon society’s interest in preserving the finality of
       criminal litigation resulting in convictions and sentences which were valid at the time
       of their imposition and thus avoiding “[t]he wholesale unsettling of final judgments
       of conviction and sentence[.]” Id. at 4. Even under the strict scrutiny standard of
       [the] equal protection clause, Petitioner’s argument fails. In addition to the state
       interest espoused in the Crum case, the legislature passed the 1989 Act primarily to
       relieve prison overcrowding. This is a compelling reason to justify the different
       treatment. Stewart, supra; Barrett v. State, No. 02C01-9508-CC-00233 (Tenn. Crim.
       App. at Jackson, February 27, 1997); State ex. rel. Jones v. McWherter, No. 01C01-
       9204-CR-00124 (Tenn. Crim. App. Nov. 18, 1992).

              The Respondent’s refusal to apply the 1989 Act does not violate the Eighth
       Amendment. If a penalty for a particular crime is reduced by a new legislation, it
       “does not mean the sentence under the prior law disproportionate[.]” Barret, supra.
       at 3.

        Since all of Petitioner’s convictions had been entered and had become final in 1973 and
1974, these constitutional attacks are foreclosed by State ex rel. Stewart v. McWherter, 857 S.W.2d
875 (Tenn. Crim. App. 1992). In Stewart, the defendant was convicted on December 13, 1983 and
sentenced to 40 years on each of 5 armed robbery convictions, 3 of which were ordered to be served
consecutive to each other and consecutive to an earlier conviction. Id. at 876. He appealed, making
the same assertion as in the present case, that his constitutional right to equal protection under the
law entitled him to the application of the 1989 Criminal Sentencing Reform Act, so as to reduce his
sentence and allow his release. Id. Said the court:

               The 1989 Sentencing Act provides that it applies only to those offenders who
       are sentenced after its effective date. T.C.A. § 40-35-117. Also, the enabling
       legislation for the Act provides that the “act shall not affect rights and duties that
       matured, penalties that were incurred, or proceedings that were begun before its

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       effective date.” 1989 Tenn.Pub.Acts, ch. 591, § 115. Thus, by its terms, the 1989
       Act does not apply to the petitioner’s cases.

                The thrust of the petitioner’s constitutional argument is that equal protection
       of the law under Article XI, § 8 of the Constitution of Tennessee and the Fourteenth
       Amendment to the United States Constitution prohibits arbitrary and capricious
       legislation which confers upon one class of persons (armed robbers sentenced under
       the 1989 Act) benefits from which others in a like situation (armed robbers sentenced
       under previous law) are excluded. . . .
                ...
                A primary purpose in the development and enactment of the 1989 Sentencing
       Act was to address the pressing issue of prison overcrowding through the creation of
       new offense and sentencing standards. See, e.g., State v. Ashby, 823 S.W.2d 166, 168
       (Tenn.1991). By limiting the Act’s application to persons who were not previously
       sentenced, the legislature devised a partial solution to prison overcrowding while
       avoiding the reopening of cases in which persons had been validly sentenced
       previously. Thus, the petitioner’s right to equal protection under the law has not
       been violated by his continued incarceration under the original sentences.

Stewart, 857 S.W.2d at 876-77. The constitutional claims of Petitioner are without merit and the
trial court correctly so held.

                                                 III.

         Petitioner next contends that he is entitled to earn good conduct sentence credits under
Tennessee Code Annotated section 41-21-229, and prisoner performance credits under section 41-
21-230, together with inmate incentive credits under section 41-21-228. He asserts an entitlement
to all of these credits retroactively. In Jones v. Reynolds, No. 01A01-9510-CH-00484, 1997 WL
367661 (Tenn. Ct. App. 1997), prisoner performance credits were held to have replaced and
superceded inmate incentive credits. Petitioner thus could not be entitled to both prisoner
performance credits and inmate incentive credits and certainly not retroactively. Appellee, in
support of its motion for summary judgment, filed the affidavit of Faye Claud, manager of Sentence
Information Services for the Department of Corrections. This affidavit provides in part:

       4.      The offense date for the Rape is July 10, 1973, therefore, the sentence
               is calculated under the Determinate sentencing law. The offense date
               for the other three cases is May 31, 1974, and they are calculated
               under the Indeterminate sentencing law.

       5.      The expiration date is calculated with the benefit of Good Conduct
               credits (GCC) (TCA§ 41-21-229), which replaced Good and Honor
               (G&H) time (TCA §41-21-212, §41-21-214), effective July 1, 1981,
               (Conversion, TCA §41-21-231). All Good Conduct credits reflected
               in the sentence calculation today [are] a combination of Good and

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               Honor time earned and retained since conversion. Good & Honor
               time/Good Conduct credits were calculated into the sentence upon
               receipt of the offender and the judgment order, and lost each month
               the inmate is found guilty of a disciplinary infraction.

       6.      The record reflects Mr. Phelps has lost a total of 335 days Good
               Conduct credits.

       7.      Prior to September 1, 1980, inmates were evaluated by program staff
               every two months to determine if their performance and behavior
               were sufficient to earn Incentive time (TCA §41-21-228). Incentive
               time was earned in addition to G&H time. The maximum number of
               days which could be earned was 7.5 days every other month.

       8.      Incentive time was replaced by Prisoner Performance Sentence Credit
               (PPSC) (TCA §41-21-230) effective September 1, 1980. All PPSC
               reflected in the calculation today, includes any Incentive time, if
               earned prior to September 1980. PPSC is awarded each month for
               positive program participation. The maximum number of PPSC
               which can be awarded per month is fifteen (15).

       9.      The total number of PPSC days earned to date is eight hundred, and
               one (801).

Petitioner offers no contradiction by affidavit or otherwise to the Claud affidavit, and the trial court
correctly granted summary judgment on this issue.

                                                  IV.

         Petitioner raises another issue. He claims that he originally signed a waiver, required by
statute, to allow him to participate in a new sentence reduction program enacted in 1985. Explaining
this program, this court has held:

        The General Assembly repealed the PPSC program in 1985 in the same legislation
        that established the prisoner sentence reduction credit program in Tenn.Code Ann.
        § 41-21-236. The 1985 statute permits prisoners who committed their offenses prior
        to December 11, 1985 to opt into the new sentence reduction credit program.
        Prisoners opting into the new program accrue prisoner sentence reduction credits in
        accordance with Tenn.Code Ann. § 41-21-236(a). Prisoners electing not to opt into
        the new program continue to earn prisoner performance sentence credits under
        Tenn.Code Ann. § 41-21-230. See Tenn.Code Ann. § 41-21-236(g).

Jones, 1997 WL 367661 at * 4.


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        Petitioner claims that while he signed the waiver originally, it was not sufficiently explained
to him. He later opted to rescind that waiver, but that Appellee had not honored the recission. Once
again, he does not dispute the Faye/Claud affidavit which clearly shows that his recission of the
waiver was honored and his sentence recalculated under prior law. Says Ms. Claud:

       10.     Mr. Phelps signed the sentence credit waiver to earn Prisoner Sentence
               Reduction Credits, and later opted to rescind the waiver. The waiver was
               removed from the sentence calculation, October 30, 1993. Mr. Phelps’
               sentence credits, parole date and sentence expiration date were recalculated
               by applying the sentence reduction statutes in effect prior to the new PSRC
               program.

       11.     The current probationary parole date is March 21, 2033; and the
               expiration date is September 19, 2055. These dates include credit
               earned through the February 1998 credit month.

The evidence before the court is uncontradicted that Petitioner’s recission of his waiver has been
honored by Appellee and his sentence calculations made accordingly.

                                                  V.

        A final issue involves an extension of Petitioner’s parole dates by 30% following a
disciplinary action against him in which he was found guilty of assault on a member of the staff.
He asserts that such extension of his parole dates is ex post facto punishment and involves double
jeopardy. The affidavit of Jeannetta Kimbro, Sentence Analyst of the Department of Corrections,
is the only evidence presented on this issue, and it states:

       Johnny Phelps was found guilty of Assault on Staff, disciplinary #186717 by an
       institutional disciplinary board on January 9, 1995. The punishment was thirty (30)
       days punitive segregation and thirty (30) percent extension of his parole dates, per
       Policy 502.02. Sentence dates as stated in previous affidavit of March 20, 1998,
       reflected this extension.

       Sentence Information Services has since been advised by the department’s legal
       counsel to remove the release date extension as this extension was affecting his
       expiration as well as all parole dates. Once this was done his dates ha[ve] now
       changed as follows:

               Probable Parole Date:                   May 4, 2002
               Mandatory Parole Date:                  February 9, 2024
               Expiration Date:                        August 9, 2024

Thus, it is clear that the matters complained of as ex post facto and double jeopardy have been
reversed within the Department of Corrections and the respondent restored to a probable parole date

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of May 4, 2002, a mandatory parole date of February 9, 2024, and a sentence expiration date of
August 9, 2024. This undisputed affidavit of Kimbro renders the final questions moot, and the court
properly granted summary judgment.

                                                   VI.

        The action of the trial court is in all respects affirmed and costs of this cause assessed against
Petitioner/Appellant, Johnny Phelps.


                                                __________________________________________
                                                WILLIAM B. CAIN, JUDGE




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