       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE

                                             FILED
                                                July 10, 1998
JOHNNY GREENE,                )
                              )              Cecil W. Crowson
      Plaintiff/Appellant,    )             Appellate Court Clerk
                              )   Davidson Chancery
VS.                           )   No. 94-927-I
                              )
TENNESSEE DEPARTMENT OF       )   Appeal No.
CORRECTION,                   )   01A01-9608-CH-00370
                              )
      Defendant/Appellee.     )




                 APPEAL FROM THE CHANCERY COURT
                      FOR DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE

      THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR


For Plaintiff/Appellant:               For Defendant/Appellee:

Douglas A. Trant                       John Knox Walkup
Knoxville, Tennessee                   Attorney General and Reporter

                                       Patricia C. Kussmann
                                       Assistant Attorney General




                   AFFIRMED AND REMANDED




                                  WILLIAM C. KOCH, JR., JUDGE
                                     OPINION


       This appeal involves a dispute between a prisoner and the Department of Correction
concerning the Department’s calculation of his sentence reduction credits. After spending
twenty-three years in prison, the prisoner sought a declaratory order from the Department
that he had ea rned sufficie nt sentence reduction c redits to be entitled to immediate release.
When the Department declined to issue the requested order, the prisoner filed a petition for
judicial review in th e Chanc ery Cou rt for David son Cou nty. Both th e prisoner and the
Department filed summary judgment motions, and the trial court granted the Departme nt’s
motion and dismissed the prisoner’s petition. On this appeal, the prisoner asserts that the
trial court erred beca use, under the undisp uted facts, he is entitled to a judgment as a matter
of law. W e have de termined that the trial cou rt’s decision to grant the Departm ent’s
summary judgme nt motion should be affirmed b ecause the prisoner ha s failed to dem onstrate
that he is entitled to relief on any of his claims.


                                                I.


       Johnny Greene went to trial before a Davidson County jury in 1971 on the charge of
first degree murder. On February 3, 1971, after the State had rested its case and h e himself
had testified, Mr. G reene dec ided to plea d guilty to first degree murder, and th e jury
sentenced him to serve ninety-nine years in the state penitentiary.            Mr. Greene has
collaterally attacked his conviction on two occasions without success.1


       In January 1994, a lawyer representing Mr. Greene corresponded with the Department
of Correction asserting that his client was eligible for immediate release because he had been
earning sentence credits at the rate of 49.5 days per month under the th ree sentenc e credit
programs instituted since Mr. Gre ene’s origin al incarceration.         After the Department
responded that Mr. G reene wa s not entitled to receive double credits under these successive
sentence reduction programs, Mr. Greene filed a petition for a declaratory order in F ebruary
1994 again asserting that he was entitled to immediate release . The Departm ent declined Mr.
Greene’s request for a d eclaratory order.


       On March 31, 1994, Mr. Greene filed a petition in the Chancery Court for Davidson
County seeking judicial review of the D epartment’s denial of his req uest for a declaratory


       1
        See Greene v. State, No. 88-217-III, 1989 WL 4941 (Tenn. Crim. App. Jan. 24, 1989), perm.
app. denied (Tenn. June 5, 1989); Greene v. State, No. 6282 (Tenn. Crim. App. Feb.29, 1972), cert.
denied (Tenn. June 5, 1972).

                                               -2-
order under Tenn. Code Ann. § 4-5-322 (Supp. 1997). Mr. Greene later filed a motion for
summary judgment, and the Departm ent respon ded with a summ ary judgm ent motio n of its
own. On M ay 6, 1996 , the trial court granted the Departm ent’s motion for sum mary
judgment and dismissed Mr. Greene’s petition. Mr. Greene has appealed.


                                                II.


       As a preliminary matter, we address the type of relief Mr. Greene requested from the
trial court. Even though the Department had not condu cted a con tested case p roceeding in
response to his request for a declaratory order, Mr. Greene filed a petition for review under
Tenn. Code Ann. § 4-5-322 which, by its own terms, is available only to persons who are
“aggrieved by a fin al decisi on in a c onteste d case.” See Tenn. Code Ann. § 4-5-322(a). M r.
Greene should have filed a petition for a declaratory judgment under Tenn. Code Ann. § 4-5-
225 (Supp. 1997) be cause the Depa rtment had refused h is request for a declaratory order.
See Tenn . Code Ann. § 4-5-22 5(b).


       The fact that Mr. Greene has pursued the wrong remedy is not necessary fatal to his
request for judicial relief. B ecause the courts endeavo r to construe pleadings b ased on th eir
substance or grav amen rather th an their t itle, see Bemis Co. v. Hines, 585 S.W.2d 574, 576
(Tenn. 1979); see also Para v. Kroger Co., 674 S.W.2d 715, 719 (Tenn. 1984) (applying the
rule for statute of limitations pu rposes), the trial c ourt could have construed M r. Greene’s
petition as one seeking a declaratory judgment under Tenn. Code Ann. § 4-5-225. The trial
court’s judgme nt indicates th at it may ve ry well hav e treated Mr. Greene’s petition as one
requesting a declaratory judgme nt, and w e will do likewis e on this appea l. Thus, Mr. Greene
will be entitled to re lief only if he c an dem onstrate that the Department’s interpretation of
a statute or rule interferes with or impairs, or threatens to interfere with or impair, his legal
rights or privileg es. See Tenn . Code Ann. § 4-5-22 5(a).


                                               III.


       Mr. Greene’ s disagreem ent with the Department’s calculation of his sentence
reduction credits can be distilled into three argum ents. First, he ass erts he is entitled to both
the good conduct sentence credits authorized by Tenn. Code Ann. § 41-21-229 (repealed
1985) and the previously authorized “good and ho nor tim e” cred its. Second, he argues that
recalculating his anticipated good conduct sentence credits after July 1, 1981 violates the Due
Process Clauses and the Ex Post F acto Clauses of the state and federal constitutions. Third,
he asserts that the Department has not accounted for the 3,277 days of good and honor time
he earned between August 28, 1970 an d July 1, 19 81. Each of these claim s is without m erit.

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                                  T HE C UMULATIVE C REDIT C LAIM


       Mr. Greene first asserts that, as a matter of statutory construction, he is entitled to bo th
the good and honor time credits available when he was first incarcerated and to the good
conduct sentence credits authorized by the General Assembly in 1980. We have already
addressed this claim and have found that the good conduct sentence credits authorized by
Tenn. Code Ann. § 41-21-2 29 com pletely replac ed the prev iously existing good and honor
time credits and th at these goo d condu ct sentence credits wo uld apply a cross-the-bo ard to
all prisone rs. See Jones v. Reynolds, No. 01A01-9510-CH-00484, 1997 WL 367661, at *3
(Tenn. Ct. App. July 2, 1997) (No Tenn. R. App. P. 11 application filed). Accordingly, these
statutes, when read in p ari materia, provide that Mr. Greene is entitled to the good and honor
time he earned betw een August 28 , 1970 and July 1, 19 81 and to earn good conduct sentence
credits under Tenn. C ode Ann. § 4 1-21-229 thereafter. 2


                                    T HE C ONSTITUTIONAL C LAIMS


       Mr. Greene’s second argument is that the Department’s recalculation in July 1981 of
his projected good conduct sentence credits increased his punishment and thereby violated
the Due Pro cess Clau ses and E x Post Fac to Clauses of the state an d federal co nstitutions.
This argument contains two fundamental flaws. First, prisoners do not earn good conduct
sentence credits in advance. Second, the application of Tenn. Code Ann. § 41-21-229 to M r.
Greene after July 1, 1981 does not increase his punishment or lengthen his sentence.


       The Ex Post Facto Clauses of the United States Constitution3 and the Constitution of
Tennessee4 are aimed at laws that retroactively increase the punishment for criminal acts.
See Lynce v. M athis, 519 U.S. 433, __ _, 117 S. C t. 891, 896 (1 997); California Dep’t of
Corrections v. Morales, 514 U.S. 499, 504 , 115 S. Ct. 1597, 160 1 (1995); State v. Ricci, 914
S.W.2d 475, 480 (Tenn. 1996). They prevent legislatures from increasing criminal penalties
beyond those prescribed for a crime when it was c omm itted. Because the sentence reduction
credit statutes in existence when M r. Greene com mitted his crime w ere inherently p art of his
sentence, see Gilliam v. State , 174 Tenn. 388, 391, 126 S.W.2d 305, 306 (1939), the
application of any later enacted sentence credit statutes that reduce the amount of sentence
credits Mr. Greene c an earn could run afoul o f the Ex Post Facto Clauses of the state and

       2
        Mr. Greene is not entitled to earn prisoner sentence reduction credits under Tenn. Code Ann.
§ 41-21-236 (1997) because he has not signed the written waiver required by Tenn. Code Ann. § 41-
21-236(c)(3), -236(g).
       3
           See U.S. Const. art. I, § 10, cl. 1.
       4
           See Tenn. Const. art. I, § 11.

                                                  -4-
federal constitutions if it has the effect of imposing a greater punishment after the
commission of the o ffense. See Weaver v. Graham, 450 U.S. 24, 36, 101 S. Ct. 960, 968
(1981).


       The undisputed facts in this record demonstrate that applying the good conduct
sentence credits in Te nn. Code Ann. § 4 1-21-229 to Mr. G reene for the portion of h is
sentence served after July 1, 1981 decreases rather than in creases the p otential length of his
incarceration. Under the good and honor time scheme in place when M r. Greene was first
incarcerated, the presum ptive expira tion date of h is sentence w ould have been sometime in
2020.5 Howe ver, the presu mptive ex piration date of his sentence calculated in accordance
with Tenn. Code Ann. § 41-21-229 is May 17, 2019. Because the operation of Tenn. Code
Ann. § 41-21-229 decreases rather than increases the length of Mr. Greene’s sentence,
placing Mr. Greene under Tenn. Code Ann. § 41-21-229 does not amoun t to an ex po st facto
violatio n. See Jones v. Reynolds, 1997 W L 367 661, at * 6.


       Mr. Greene also argues that the Department cannot constitutionally deprive him of the
prospective good and honor time credits that the Department projected he could earn when
the presumptive expiration date of his sentence was first calculated in 1971. He asserts that
he had a pro perty right to th ese credits and that once they were awarded to him, they cannot
be taken away without cause. This argument overlooks the reality that Mr. Greene had not
earned approximately fifty years of sentence credits when the Department first projected the
presumptive expiration d ate of his sen tence in 1971. The Department’s calculation at that
time was simply a projection based on the assumption that Mr. Greene would earn these
credits while inca rcerated by compo rting himse lf as required by Tenn. Code Ann. §§ 41-21-
212, -214 (repealed 1985). Therefore, on July 1, 1981, Mr. Greene had a pro perty interest
only in the good and honor time credits he had earned from August 28, 1970 until July 1,
1981; he did not have a property interest in the credits that the Department projected he
might earn during the remain ing yea rs of his in carcera tion. Since Mr. Greene did not have
a property in terest in the cred its he migh t have earn ed after July 1 , 1981, the D epartme nt did
not violate the Due Process Clauses of the state and federal constitutions by switching to
Tenn. Code Ann. § 41-21-229 to calculate these future sentence credits.


                           T HE E ARNED S ENTENCE C REDIT C LAIM


       5
         Mr. Greene argues that this date would have been August 28, 2021. We need not resolve
the discrepancy between Mr. Greene’s calculation of the original presumptive expiration date of his
sentence and the Department’s calculation because both dates are later than the presumptive
expiration date calculated according to Tenn. Code Ann. § 41-21-229.

                                                -5-
        As a final matter, Mr. Greene insists that the Department has not properly accounted
for the 3,722 days of good and honor time that he earned between August 28, 1970 and July
1, 1981. The undisputed evidence is to the contrary. The Department has included these
sentence credits in its calculation of the new p resumptive expiration d ate of Mr. Green e’s
senten ce.


        The 1980 legislation creating the good conduct sentence credits to replace the good
and honor time credits contained a mechanism for conve rting good and hon or time cred its
earned prior to July 1, 1981 to good condu ct senten ce cred its. See Tenn. Code Ann. § 41-21-
231 (repealed 1985). On August 29, 1981, Mr. Greene received a memorandum from the
Commissioner of Correction informing him that he had been given full credit for the 3,722
days of good and honor time he had earned prior to July 1, 1981 and that these days, when
added to the “possible good time” he could earn after July 1, 1981, would reduce his sentence
by 17,718 d ays or app roximate ly 48.5 years . These cre dits advanced the expiration date of
Mr. Greene’ s sentence f rom 20 69 to May 17, 2019. This memorandum provides unrebutted
evidence that the Department has given Mr. Greene full credit in accordance with Tenn.
Code Ann. § 41-21-231 for the 3,722 days of good and honor time he earned prior to July 1,
1981.


                                               IV.


        Mr. Greene has failed to present evidence that he has b een adve rsely affected by the
Departmen t’s erroneous or unconstitutional interpre tation or app lication of any statute or rule
governing the accumulation and calculation of the sentence credits to which he is entitled.
Accordingly, treating his petition as a petition for declaratory judgment under Tenn. Code
Ann. § 4-5-225, we find that the trial court reached the correct result wh en it dismissed M r.
Greene’ s petition. W e reman d this case to the trial court for whatever further proceedings
may be required , and we ta x the costs o f this appeal to Johnny G reene and his surety for
which execution, if necessary, may issue.




                                                     ______________________________
                                                     WILLIAM C. KOCH, JR., JUDGE


CONCUR:



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___________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION


___________________________________
BEN H. CANTRELL, JUDGE




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