      IN THE COURT OF APPEALS OF TENNESSEE
           MIDDLE SECTION AT NASHVILLE



THOMAS GERALD LANEY,                  )
                                      )
      Plaintiff/Appellant,            )
                                      )   Davidson Chancery
                                      )   No. 96-1282-II
VS.                                   )
                                      )   Appeal No.
                                      )   01A01-9703-CH-00142
DONAL CAMPBELL, Commissioner,         )
Tennessee Department of Correction,   )

      Defendant/Appellee.
                                      )
                                      )                 FILED
                                                          July 18, 1997

                                            Cecil W. Crowson
  APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
                AT NASHVILLE, TENNESSEE    Appellate Court Clerk


          THE HONORABLE CAROL L. McCOY, CHANCELLOR



For the Plaintiff/Appellant:              For the Defendant/Appellee:

Thomas Gerald Laney, Pro Se               John Knox Walkup
                                          Attorney General and Reporter

                                          John R. Miles
                                          Counsel for the State




                  AFFIRMED AND REMANDED




                                      WILLIAM C. KOCH, JR., JUDGE
                                OPINION

      This appeal involves a dispute between a prisoner and the Department of
Correction concerning the prisoner’s right to earn prisoner sentence reduction
credits while on death row. After the prisoner’s sentence was reduced to life, the
Department denied his request for credit for his educational activities while on
death row. The Chancery Court for Davidson County denied the prisoner’s
petition for declaratory judgment, and the prisoner has appealed to this court. We
affirm the trial court because we have determined that a prisoner is not entitled to
receive sentence reduction credits for activities or conduct taking place when the
prisoner was ineligible to earn credits.


                                           I.


      Thomas Gerald Laney killed a Kingsport grocer during a gunfight at the
grocer’s home in October 1980. He was convicted of first degree murder and was
sentenced to death in April 1981. The Tennessee Supreme Court later upheld his
conviction and sentence. State v. Laney, 654 S.W.2d 383 (Tenn. 1983). First
degree murder was a Class-X crime when Mr. Laney committed his offense, and,
like all other prisoners who received the death penalty, Mr. Laney was classified
as a maximum security prisoner when he was first incarcerated.


       Mr. Laney was ineligible to earn sentence credits when he was first
incarcerated because prisoners convicted of Class-X offenses were excluded from
the program. This restriction was removed in 1983 for prisoners who signed a
written waiver. Mr. Laney was assigned to an educational program in December
1985. In early 1986, he signed a written waiver in order to participate in the
educational program, even though he understood that his death sentence prevented
him from earning sentence reduction credits at that time. He claims he was told
that he would receive credits for his participation if his death sentence was ever
vacated.
      The Criminal Court for Sullivan County vacated Mr. Laney’s death
sentence in 1994 and ordered a new sentencing hearing. On November 15, 1994,


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Mr. Laney was sentenced to life imprisonment. He was terminated from the full-
time educational program on December 8, 1994 and was transferred to the Morgan
County Regional Correctional Facility. Mr. Laney became eligible to earn
prisoner sentence reduction credits after receiving his life sentence and has been
accruing these credits ever since he signed the required waiver.


          Mr. Laney requested the Department to issue a declaratory order that he was
entitled to 1,600 days of credit for his participation in full-time educational
programs from March 1, 1986 through December 8, 1994 while he was still on
death row. After the Department denied his request, Mr. Laney filed a petition for
a declaratory ruling in the Chancery Court for Davidson County. The trial court
dismissed the petition on November 13, 1996, on the ground that awarding
prisoner sentence reduction credits is discretionary with the warden and that the
warden did not abuse his discretion by declining to award Mr. Laney sentence
credits for his activities while he was on death row.


                                                II.


          Prisoners do not have a constitutional right to shorten their sentences by
earning sentence reduction credits. France v. Bradley, 922 S.W.2d 118, 119
(Tenn. Ct. App. 1995); State v. Phillips, App. No. 01C01-9605-CR-00215, 1997
WL 254231, at *3 (Tenn. Crim. App. May 16, 1997) (No Tenn. R. App. P. 11
application filed). These credits are creatures of statute, and, therefore, the right
to receive or accrue them rests on the rules and criteria contained in the statutes
authorizing them. Jones v. Reynolds, App. No. 01A01-9510-CH-00484, 1997 WL
367661, at *3 (Tenn. Ct. App. July 2, 1997) (No Tenn. R. App. P. 11 application
filed).


          Prisoners who committed crimes prior to December 11, 1985 are not
entitled to earn sentence reduction credits for participating in programs when they
are statutorily ineligible to accrue credits. See Tenn. Code Ann. § 41-21-236(c)(3)
(1990).1 When Mr. Laney signed the PSRC waiver in 1986, Tenn. Code Ann. §

          1
              Tenn. Code Ann. § 41-21-236(c)(3) provides:
                                                                         (continued...)

                                                -3-
41-21-236(a)(7) provided that maximum security prisoners could not earn
prisoner sentence reduction credits. Since Mr. Laney, like all other death row
inmates, was a maximum security prisoner, he was ineligible to earn sentence
reduction credits for the educational programs he participated in while on death
row.


       Mr. Laney also asserts that the Department was constitutionally required to
award him these sentence reduction credits retroactively after his death sentence
was vacated and replaced with a life sentence. He argues that the Department’s
failure to grant him these credits has increased his sentence by 1,600 days in
violation of the Ex Post Facto Clauses in the state and federal constitutions. We
disagree.


       The Ex Post Facto Clauses in both U.S. Const. art. I, § 10, cl. 1 and Tenn.
Const. art. I, § 11 prohibit the enactment of laws that retroactively disadvantage
prisoners by increasing their punishment. Lynce v. Mathis, ___ U.S. ___, ___, 117
S. Ct. 891, 896-97 (1997); California Dep’t of Corrections v. Morales, 514 U.S.
499, ___, 115 S. Ct. 1597, 1601 (1995); State v. Ricci, 914 S.W.2d 475, 480
(Tenn. 1996); Kaylor v. Bradley, 912 S.W.2d 728, 731-32 (Tenn. Ct. App. 1995).
They prevent the enactment of laws that increase criminal punishments beyond
those prescribed when the crime was committed.


       When Mr. Laney murdered the grocer in Kingsport, persons convicted of
Class-X crimes were not entitled to earn prisoner sentence credits. Even after that
restriction was eased, persons classified as maximum security were still ineligible
to earn sentence reduction credits. Thus, Mr. Laney did not become eligible to
earn sentence reduction credits until November 15, 1994 when his death sentence
was replaced by life imprisonment. He has been earning sentence credits ever


       1
        (...continued)
                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 written waiver waiving his right to serve
       his sentence under the law in effect at the time his crime was committed.
       However, sentence reduction credits authorized by this section may be awarded
       only for conduct and/or performance from and after the date a person becomes
       eligible under this subsection. (emphasis added).

                                             -4-
since November 1994, and the Department’s refusal to award him additional
credits retroactively for activities when he was ineligible to earn credits has not
unconstitutionally lengthened his sentence. See Henderson v. Lutche, 938 S.W.2d
428, 430 (Tenn. Ct. App. 1996) (holding that a Class-X prisoner was not entitled
to be awarded prisoner sentence reduction credits retroactively).


                                       III.


      We affirm the dismissal of Mr. Laney’s petition for a declaratory judgment
and remand the case to the trial court for whatever further proceedings may be
required. We also tax the costs of this appeal to Thomas Gerald Laney.




                                              ____________________________
                                              WILLIAM C. KOCH, JR., JUDGE


CONCUR:


________________________________
HENRY F. TODD, P.J., M.S.


________________________________
SAMUEL L. LEWIS, JUDGE




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