                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                 Assigned on Briefs April 27, 2000

             RICKEY A. MOORMAN v. TENNESSEE DEPARTMENT
                           OF CORRECTION

                       Appeal from the Chancery Court for Davidson County
                         No. 98-3012-III  Ellen Hobbs Lyle, Chancellor



                       No. M1999-02675-COA-R3-CV - Filed March 13, 2003


This appeal involves a dispute between a prisoner and the Tennessee Department of Correction
regarding the calculation of his sentence credits and his release eligibility date. After unsuccessfully
petitioning for a declaratory order, the prisoner filed a petition in the Chancery Court for Davidson
County seeking a declaratory judgment regarding his entitlement to sentence credits as well as a
determination that he was entitled to immediate release. The trial court granted the Department’s
Tenn. R. Civ. P. 12.02(6) motion to dismiss, and the prisoner has appealed. We affirm the trial
court’s conclusion that the prisoner’s petition fails to state a claim upon which relief can be granted.

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

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.

Rickey A. Moorman, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Rae
Oliver, Assistant Attorney General, for the appellee, Tennessee Department of Correction.

                                                   OPINION

                                                         I.

        In the summer of 1977, Rickey Alan Moorman robbed a Memphis pharmacy by holding a
knife to the throat of an employee. He was promptly caught, tried, convicted, and sentenced to
twenty-five years in prison for armed robbery.1 His violent criminal activities continued after he was
incarcerated. In 1980, the Criminal Court for Lauderdale County sentenced him to five years for
voluntary manslaughter. In 1982, the Criminal Court for Davidson County sentenced him to serve


        1
         The Tennessee Court of Criminal App eals affirmed his conviction. Moorman v. State, 577 S.W .2d 473 (T enn.
Crim. App. 1978 ).
one year for escaping from work release. Each of these sentences was ordered to run consecutively
to his 25-year Shelby County sentence. Accordingly, by 1982, Mr. Moorman’s total effective
sentence for the three crimes was thirty-one years. Less than one year later, in March 1983, Mr.
Moorman committed murder in Morgan County. He pleaded guilty to second degree murder, which
was a Class X crime at the time. The Criminal Court for Morgan County sentenced him to serve
thirty-five years to be served concurrently with his three previous sentences.

         In May 1998, Mr. Moorman requested the Department of Correction to render a declaratory
order under Tenn. Code Ann. § 4-5-224 (1998). He asserted that the Department was improperly
administering his sentences and that he would be eligible for immediate release once his sentences
were properly structured. The Department declined Mr. Moorman’s request for a declaratory order
and informed him that his sentences were properly configured and that he had not completed serving
all his sentences.

        In October 1998, Mr. Moorman filed a pro se petition in the Chancery Court for Davidson
County seeking immediate release from custody. As best we can determine, he asserted (1) that the
punishment for this second degree murder conviction should have been reduced following the 1989
revisions in Tennessee’s sentencing laws,2 (2) that the Department was depriving him of sentence
credits to which he was entitled, and (3) that the Department had somehow improperly altered his
35-year sentence for second degree murder to make it run consecutively with his three other
sentences.3 The trial court thereafter granted the Department’s Tenn. R. Civ. P. 12.02(6) motion to
dismiss after concluding that Mr. Moorman’s first two claims were insufficient as a matter of law
and that his third claim failed to state a claim because he had failed to establish that his 35-year
sentence for second degree murder had expired. Mr. Moorman has appealed.

                                                   II.
                                         THE STANDARD OF REVIEW

        The trial court resolved this case by granting the Department’s Tenn. R. Civ. P. 12.02(6)
motion to dismiss. This motion tests the legal sufficiency of the plaintiff’s pleading. Givens v.
Mullikin, 75 S.W.3d 383, 406 (Tenn. 2002); Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d
691, 696 (Tenn. 2002). It requires the court to review the complaint alone, Mitchell v. Campbell,
88 S.W.3d 561, 564 (Tenn. Ct. App. 2002), and to look to the complaint's substance rather than its
form. Kaylor v. Bradley, 912 S.W.2d 728, 731 (Tenn. Ct. App. 1995). Dismissal under Tenn. R.
Civ. P. 12.02(6) is warranted only when the alleged facts will not entitle the plaintiff to relief, Crews
v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002) or when the complaint is totally
lacking in clarity and specificity. Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992).



        2
            Act of May 24, 1989, ch. 591, 1989 Tenn. Pub. Acts 1169.

        3
          He alleged that “the Tennessee Department of Corrections [has] changed the Concurrent sentence into a
consecutive sentence and subsequently [the Department is] a law unto themselves not accountable to the Tennessee
Legislature or to Crim inal Co urt Rulings and Ord ers.”



                                                        -2-
        A Tenn. R. Civ. P. 12.02(6) motion admits the truth of all the relevant and material factual
allegations in the complaint but asserts that no cause of action arises from these facts. Davis v. The
Tennessean, 83 S.W.3d 125, 127 (Tenn. Ct. App. 2001); Pendleton v. Mills, 73 S.W.3d 115, 120
(Tenn. Ct. App. 2001). Accordingly, courts reviewing a complaint being tested by a Tenn. R. Civ.
P. 12.02(6) motion must construe the complaint liberally in favor of the plaintiff by taking all factual
allegations in the complaint as true, Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997),
and by giving the plaintiff the benefit of all the inferences that can be reasonably drawn from the
pleaded facts. ROBERT BANKS , JR. & JUNE F. ENTMAN , TENNESSEE CIVIL PROCEDURE § 5-6(g), at
254 (1999). We must likewise review the trial court's legal conclusions regarding the adequacy of
the complaint without a presumption of correctness. Bell ex rel. Snyder v. Icard, Merrill, Cullis,
Timm, Furen & Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999); Stein v. Davidson Hotel Co.,
945 S.W.2d at 716.

                                          III.
                 RESENTENCING FOR THE SECOND DEGREE MURDER CONVICTION

        Mr. Moorman’s first argument is that the savings statute in Tenn. Code Ann. § 39-1-105
(1982) (repealed 1989) entitles him to be resentenced for his second degree murder conviction
because the 1989 amendments to Tennessee’s sentencing laws reduced the punishment for second
degree murder. He insists that the Equal Protection Clauses of U.S. Const. amend. XIV and Tenn.
Const. arts. I, § 8 and XI, § 8 prevent the State from treating him differently than persons sentenced
for the same crime following the 1989 amendments.4

        The Tennessee Court of Criminal Appeals has already determined that the argument based
on Tenn. Code Ann. § 39-1-105 lacks merit. State ex rel. Stewart v. McWherter, 857 S.W.2d 875,
877 (Tenn. Crim. App. 1992). It has likewise rejected the equal protection argument. State ex rel.
Stewart v. McWherter, 857 S.W.2d at 876-77. We have followed the lead of our colleagues on the
Court of Criminal Appeals in an earlier case, Burch v. Tennessee Dep’t of Corr., 994 S.W.2d 137,
138-39 (Tenn. Ct. App. 1999), and we do so again here. We hold that the trial court, relying on
State ex rel. Stewart v. McWherter, properly dismissed Mr. Moorman’s claim that he was entitled
to be resentenced in accordance with the 1989 sentencing amendments.

                                                IV.
                                DENIAL OF MULTIPLE SENTENCE CREDITS

        Mr. Moorman’s second argument is that the Department has wrongfully denied him sentence
credits that he was entitled to receive against his 35-year sentence for second degree murder. This
claim is not based on a calculation error but on Mr. Moorman’s notion that he is somehow entitled



         4
          Mr. Moorman points out that following 1989 , second degree murd er is a Class A felo ny punishable by a
maximum sentence of twenty-five years. It is far from clear, however, that Mr. M oorman’s extensive criminal record
would qualify him as a Range I offender. He could very well be classified as a Range II or Range III offender. If he
came under R ange II or R ange III, the maximum sentenc e for second degree m urder co uld be as m uch as sixty years,
not merely twenty-five years. Tenn. Code Ann. §§ 40 -35-106, -107, -112 (199 7).

                                                         -3-
to earn sentence credits simultaneously under five different sentence credit regimes. Mr. Moorman
is mistaken.

         For the purpose of his 35-year sentence for second degree murder, Mr. Moorman, as a Class
X prisoner, is entitled to prisoner performance credits under Tenn. Code Ann. § 41-21-230 (1982)
(repealed 1985).5 He insists that he is also entitled to earn “good behavior” sentence credits under
Tenn. Code Ann. § 41-21-212 (1982) (repealed 1985),6 “honor time” sentence credits under Tenn.
Code Ann. § 41-21-214 (1982) (repealed 1985),7 “incentive time” sentence credits under Tenn. Code
Ann. § 41-21-228 (1982) (repealed 1985), and “good conduct” sentence credits under Tenn. Code
Ann. § 41-21-229 (1982) (repealed 1985). We have already addressed this claim at length and found
it to be without merit in Mauldin v. Tennessee Dep’t of Corr., No. 01A01-9801-CH-00014, 1999 WL
5084, at *3-5 (Tenn. Ct. App. Jan. 7, 1999), perm. app. denied (Tenn. June 21, 1999). Accordingly,
we find that the trial court correctly determined that the allegations in Mr. Moorman’s petition
regarding his right to multiple sentence credits failed to state a claim upon which relief can be
granted.

                                                              V.
       THE DEPARTMENT’S CLASSIFICATION OF THE SECOND DEGREE MURDER SENTENCE

       Mr. Moorman’s final argument is that the Department is somehow requiring him to serve his
35-year sentence for second degree murder consecutively despite the fact that the judgment of
conviction directed that it be served concurrently with his three earlier sentences. Mr. Moorman
assumes that this must be the case because, in his estimation, he would have been released otherwise.
Mr. Moorman’s confusion about how his sentences work is not enough to create a triable claim.

         Mr. Moorman is correct to a point. The sentences for his first three earlier convictions have
expired.8 However, there are three reasons why it does not necessarily follow that the expiration of
these sentences means that his 35-year sentence for second degree murder has likewise expired.
First, the second degree murder sentence was longer than the other three sentences combined.
Second, Mr. Moorman began serving this sentence later than he began serving the other sentences.
Third, his 35-year sentence for second degree murder is for a Class X felony which carries with it
less of an opportunity to earn sentence reduction credits.




         5
          The Department concede s in its brief that Mr. M oorman is entitled to earn prisoner performance sentence
credits. The T OM IS repo rts attache d to M r. Moorman’s petition indicated that he is rece iving these cred its and tha t his
sentence expiration date is being adjusted ac cord ingly.

         6
             These credits were formerly codified at Tenn. Cod e Ann. § 41-322 (1 975) (repealed 19 85).

         7
             These credits were formerly codified at Tenn. Cod e Ann. § 41-334 (1 975) (repealed 19 85).

         8
          His 25-year sentence for armed robbery expired in 1990 with the help of sentence credits. His 1-year sentence
for escape expired later in 1990 with the help of sentence credits. His 5-year sentence for voluntary manslaughter expired
in July 1992 , also with the help of sentence c redits.

                                                             -4-
        The TOMIS report attached to Mr. Moorman’s petition shows that the Department, consistent
with the judgment of the Criminal Court for Morgan County, started Mr. Moorman’s second degree
murder sentence running in March 1983. This sentence has run concurrently with Mr. Moorman’s
other three sentences ever since March 1983. While his other three sentences have expired, Mr.
Moorman’s 35-year sentence, with its full expiration date of 2018, has several more years to go.
Therefore, the trial court properly determined that Mr. Moorman’s conclusory allegations regarding
the Department’s treatment of his 35-year sentence for second degree murder failed to state a claim
upon which relief can be granted.

                                               VI.

       We affirm the judgment and remand the case to the trial court for whatever further
proceedings are required. We tax the costs of this appeal to Rickey A. Moorman. We also find that
Mr. Moorman’s petition for declaratory judgment and subsequent appeal are frivolous in accordance
with Tenn. Code Ann. § 41-21-807(c) (Supp.2002) and Tenn. Code Ann. § 41-21-816(a)(1) (1997).



                                                     ____________________________
                                                     WILLIAM C. KOCH, JR., JUDGE




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