                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                            Assigned on Briefs October 9, 2001

                WILLIAM ALLEN v. DONAL CAMPBELL, ET AL.

                   Appeal from the Chancery Court for Davidson County
                        No. 00-784-II  Carol McCoy, Chancellor



                    No. M2001-00277-COA-R3-CV - Filed March 11, 2002


Petitioner, a state inmate, filed the underlying pro se declaratory judgment action pursuant to the
Uniform Administrative Procedures Act to seek review of the Tennessee Department of Correction’s
refusal to answer a petition for a declaratory order. Petitioner requested a declaratory order to
determine his entitlement to both good conduct sentence credits and good and honor time credits.
The trial court granted the Department’s motion to dismiss for failure to state a claim holding that
petitioner was not entitled to duplicate sentence credits. For the following reasons, we affirm the
decision of the trial court.

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

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

William Allen, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Pamela S.
Lorch, Assistant Attorney General, Nashville, Tennessee, for the appellees, Donal Campbell, et al.

                                            OPINION

        This case involves a dispute between William Allen, an inmate in the Tennessee prison
system, and the Tennessee Department of Correction (“Department”) concerning the calculation of
Mr. Allen’s sentence reduction credits. Mr. Allen filed a petition for declaratory order with the
Department of Correction alleging that he was entitled to sentence credits under two different
statutory credit systems. After the Tennessee Department of Correction declined to issue a
declaratory order, Mr. Allen sought declaratory judgment pursuant to the Uniform Administrative
Procedures Act. He alleged that he was entitled to receive credits under both statutory systems and
that the miscalculation of sentence credits was a violation of both his due process and equal
protection rights by the Department. The Department responded with a motion to dismiss under
Tenn. R. Civ. P. 12.02(6) for failure to state a claim.1 The court granted the Department’s motion
to dismiss holding that Mr. Allen was not entitled to earn good conduct sentence credits under Tenn.
Code. Ann. § 41-21-229 in addition to good and honor time credits of Tenn. Code Ann. § 41-21-212
and § 41-21-214 for the same time served. Mr. Allen has appealed.

                                     I. Applicable Sentence Credit Statutes

        William Allen was convicted of first degree murder in 1968. He received a 99-year sentence.
When Mr. Allen was first incarcerated, Tenn. Code Ann. §§ 41-332 and 41-334 (redesignated 41-21-
212 and 41-21-214 in 1982) were in effect. Under Tenn. Code Ann. § 41-332 a prisoner “who shall
demean himself uprightly” could earn credits for good behavior which were to be deducted from his
sentence.2 Tenn. Code Ann. § 41-333 (redesignated § 41-21-213 in 1982) provided that a record of
conduct for each prisoner was to be kept, and this record “shall become the basis for the allowance
of ‘good time’.” In addition to these good time credits, Tenn. Code Ann. § 41-334 authorized credit
for those prisoners placed in an honor grade status of two months of honor time for “each year of the
term of service.”

       When Mr. Allen was initially incarcerated in 1970, the Department calculated a presumptive
sentence expiration date based upon his sentence and the good and honor time credits available to
him under the statutes described above which were then in effect. This calculation resulted in a
presumptive sentence of fifty (50) years and seven (7) months, based on an assumption that Mr.
Allen’s behavior would result in his earning the credits available.

        The General Assembly enacted a new sentence credit structure in 1980, which replaced the
earlier good and honor time sentence credit system.3 Tenn. Code Ann. §§ 41-359 (redesignated as
41-21-229) and 41-361(redesignated as 41-21-231). The new system provided for “good conduct
sentence credits” and went into effect on July 1, 1981. The statute specifically provided that after
July 1, 1981, those persons convicted of an offense prior to that date “shall be entitled to earn good


         1
           The Department also moved to dismiss for lack of subject matter jurisdiction on the basis that Mr. Allen failed
to exhaust his administrative claims. Noting that the record included n ume rous requests to the Departmen t from M r.
Allen, the trial co urt ordered the Departm ent to mo re specifically identify the actions Mr. Allen was supposed to take
in order to ex hau st those claim s. The Department responde d by clarifying th at its allegation of failure to exh aust
administrative claims applied to Mr. Allen’s claims under o nly one statute. Subsequently, Mr. Allen mo ved to withdraw
those claims in contention and to proceed with the claims the Department agreed he had exhausted. The court granted
his motion for partial withdrawal of claims relating to sentence credits under Tenn. Code Ann. § 41-21-230 (program
participation credits). Since the claim involving program participation credits was withdra wn, no issue reg arding those
credits is before us o n appeal.

         2
           Accord ing to the formula set out in the statute, a prisoner could earn one month of good time credit for the
first year of incarceration, two m onths of credit for the second year, three months for each subsequent year up to and
including the ten th year, and four m onth s for ev ery su bseq uen t year of im prisonm ent.

         3
          All the previous sentence credit statutes were repealed in 198 5. 19 85 T enn . Pub . Acts (1st Ext. Sess.) Ch. 5
§ 14 . See also Tenn. Co de An n. § 41-21-2 36(g).

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conduct time in accordance with Tenn. Code Ann. § 41-21-229, and no person thereafter shall be
entitled to sentence credits pursuant to §§ 41-21-212 or 41-21-214.” Tenn. Code Ann. § 41-21-231.
The same provision included a formula for converting good and honor time credits earned under the
old system prior to July 1981 to the new system of good conduct sentence credits.

        The new statutory system did not include a waiver or opt-in provision to the new good
conduct sentence credits system,4 and it applied across the board to all prisoners. Jones v. Reynolds,
No. 01A01-9510-CH-00484, 1997 Tenn. App. LEXIS 462, at *10-11 (Tenn. Ct. App. July 2, 1997)
(no Tenn. R. App. P. 11 application filed). Thus, according to the statute, all prisoners would be
eligible to earn good conduct sentence credits in lieu of good and honor time from July 1, 1981,
forward. The new system replaced the older one. Id.

                                              II. The Petitioner’s Claim

        Mr. Allen asserts he is entitled to good time and honor time credits under the pre-1981
system and to good conduct sentence credits under the post-1981 system. More specifically, he
asserts he is entitled to all the good time and honor time credits reflected in the Department’s
presumptive sentence calculations supplied him early in his incarceration. In other words, he claims
entitlement to the entire maximum number of credits he could have earned under the old system as
well as additional credits starting in 1981 under the new system.

        Mr. Allen’s arguments presume incorrectly that the Department’s projection of his sentence
expiration date actually was an award of those projected credits. That is simply not the case. As the
statutes, quoted above, make clear, the pre-1981 (as well as the post-1981) sentence credits could
be earned by a prisoner. They were not awarded until earned. Prisoners do not earn good conduct
sentence credits or good and honor time credits in advance. Greene v. Tennessee Dep’t of
Correction, No. 01A01-9608-CH-00370, 1998 Tenn. App. LEXIS 461, at *10-11 (Tenn. Ct. App.
July 10, 1998) (permission to appeal denied Oct. 19, 1998).5 In addition, the statute effecting the
1981 change makes it clear that after July 1, 1981, no prisoner could earn credits under the prior
system. Thus, it was not possible for Mr. Allen to earn credits under both systems concurrently.


         4
          The General Assembly created the “prisoner sentence reduction credit” program in 1985 that was available
to prisoners w ho co mm itted felonies prior to Dece mb er 11, 19 85. Prison ers were not eligible for this program unless
they signed a w ritten w aiver pursuan t to Tenn. C ode An n. 41 -21-236(c)(3), -2 36(g). Mr. Allen did not sign the waiver,
and therefore continued to accrue sentence redu ction credits in accord ance w ith the pre-ex isting sentence credit statutes.
See Tenn. Co de An n. 41-21-23 6(g). Mr. Allen did not allege that he was denied “prisoner sentence reduction credits”,
thus we need not discuss them further.

         5
          See also Jones v. Morgan, No. 01C 01-960 6-CC-0026 3, 19 97 T enn . Crim . App. LEX IS 50 8 (Tenn . Crim . App.
May 30, 1997), wherein a prisoner made a similar claim that sen tence credits must be credited against the Departm ent’s
projection of when his sentence would expire. The court dismissed that claim, stating “the re cord indicates that he is
using as his base sen tence an ex piration date calcu lation b y the Departm ent of Correction that alread y includes his
projected senten cing, credits. In other words, the petitioner’s calculation s provide him with doubled sentencing credits
to which he is not entitled.” Id. at *4-5.

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        The claims raised by Mr. Allen have been addressed by this court before. In Greene v.
Tennessee Dep’t of Correction, 1998 Tenn. App. LEXIS 461, another prisoner claimed entitlement
to credits under both the good and honor time system and the later good conduct sentence credits
system. In ruling on that claim, we stated:

               We have already addressed this claim and have found that the good
               conduct sentence credits authorized by Tenn. Code Ann. § 41-21-229
               completely replaced the previously existing good and honor time
               credits and that these good conduct sentence credits would apply
               across the board to all prisoners.

Id. at *6 (citing Jones v. Reynolds, 1997 Tenn. App. LEXIS 462, at *10-11). Accordingly, we ruled
that Mr. Greene was entitled to credits earned under the old system from his incarceration to July
1, 1981, and from that date forward was eligible to earn credits under the newer system. Similarly,
Mr. Allen is entitled to be credited with any good and honor time he earned under the pre-1981
system up until July 1, 1981. He is also entitled to any good conduct sentence credits he has earned
since that date under the newer system. Herein, Mr. Allen does not allege he has not received the
appropriate credits he earned using this methodology.

        Mr. Allen also relies on the language in Tenn. Code Ann. § 41-21-229(f) to the effect that
the good conduct sentence credits created in that statute “shall be in addition to any other sentence
credits authorized by law.” He asserts that because he was entitled to earn credits under the system
in effect at the time of his offense, those credits are in effect additional credits authorized by law.
That argument overlooks, however, the language of Tenn. Code Ann. § 41-21-231 that after July 1,
1981, “no person thereafter shall be entitled to sentence credits pursuant to §§ 41-21-212 or 41-21-
214.” Thus, after July 1, 1981, the good and honor time credits established by superseded law were
no longer “authorized by law.” “Prisoners do not have an inherent right to sentence reduction
credits. These credits are creatures of statute, and thus the right to receive or accrue credits depends
on the statutes authorizing them.” Jones v. Reynolds, 1997 Tenn. App. LEXIS 462, at *10-11.

        Mr. Allen also argues that by depriving him of sentence credits, the Department has
adversely affected his liberty interests created by statute in sentence credits and violated his rights
to equal protection under the law. His constitutional claims are based, in large part, upon his
contention that he “earned” all the good and honor time credits under the pre-1981 system that the
Department had projected he would be eligible to earn over his entire sentence. As discussed above,
that premise is inaccurate. As to credits he had not yet earned under the old system prior to July 1,
1981, he had no property or liberty interest in such credits, and the legislature’s decision to change
the system of sentence credits did not implicate any due process protections.

        Mr. Allen argues that the credits projected as earnable by the Department were an inherent
part of the sentence structure at the time of his offense and that the legislature could not
constitutionally deprive him of credits earned under that system and, alternatively, could not deprive
him of his right to continue to earn credits under that system. He asserts “his sentence spans both

                                                  -4-
the original Good and Honor Time statutes in effect in 1968 at the time of his offense, and the 1981
Good Conduct statutes, and he is thereby entitled to credits of both.” This argument is, in essence,
a claim of ex post facto clause violation.

        We have considered these same constitutional claims in the same factual context before. In
Greene, we recognized that the prohibitions on ex post facto legislation prevent legislatures from
increasing criminal penalties beyond those prescribed for a crime when it was committed. Greene,
1998 Tenn. App. LEXIS 461, at *7-8. Sentence reduction credit statutes in effect at the time of the
commission of a crime are, as Mr. Allen asserts, an inherent part of his sentence; consequently,
application to him of a system of sentence credits which reduces the amount of credit he is eligible
to receive, if such application effectively imposes a greater punishment at a date after the offense,
is subject to constitutional attack.

        However, we determined in Greene, as we had earlier in Jones that the good conduct
sentence credit system allows a prisoner to earn more credits than the previous system and decreases
rather than increases the potential length of incarceration. Id. at *8-9. Consequently, the
legislature’s adoption of a new system to replace the one in effect at the time of Mr. Allen’s offense
does not amount to an ex post facto violation.

                                           III. Conclusion

        A Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim upon which relief
can be granted tests only the legal sufficiency of the complaint, not the strength of the petitioner's
proof. Cook v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). The basis for the
motion is that the allegations contained in the complaint, considered alone and taken as true, are
insufficient to constitute a cause of action. Id. In resolving the issues in this appeal, we are required
to construe the complaint liberally in the plaintiff's favor and take the allegations of the complaint
as true. Bell v. Icard, Merrill, Cullins, Timm, Furen and Ginsburg, P.A., 986 S.W.2d 550, 554
(Tenn. 1999). Our standard of review on appeal from a trial court's ruling on a motion to dismiss
is de novo, with no presumption of correctness as to the trial court's legal conclusions. Stein v.
Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997).

       Mr. Allen is not entitled to earn credits under both systems concurrently. The later system
replaced the earlier system. Consequently, he has failed to state a claim upon which relief can be
granted. The decision of the trial court is affirmed. Costs are taxed to the Appellant, William Allen,
for which execution may issue if necessary.



                                                        __________________________________
                                                        PATRICIA J. COTTRELL, JUDGE




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