        IN THE COURT OF APPEALS OF TENNESSEE
                    AT NASHVILLE
                                                          FILED
                                                              March 29, 2000
DONNIE FRANKLIN WHEELER,             )
                                                          Cecil Crowson, Jr.
                                     )                   Appellate Court Clerk
      Petitioner/Appellant,          )    Appeal No.
                                     )    M1999-00569-COA-R3-CV
VS.                                  )
                                     )    Davidson Chancery
TENNESSEE DEPARTMENT                 )    No. 96-2001-II
OF CORRECTION,                       )
                                     )
      Respondent/Appellee.           )


APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
               AT NASHVILLE, TENNESSEE

         THE HONORABLE CAROL L. McCOY, CHANCELLOR



MICHAEL J. PASSINO
213 Fifth Avenue, North
Nashville, Tennessee 37219
      Attorney for Petitioner/Appellant

PAUL G. SUMMERS
Attorney General & Reporter

JOHN R. MILES
c/o Attorney General & Reporter
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
      Attorney for Respondent/Appellee


                      AFFIRMED AND REMANDED


                                          BEN H. CANTRELL,
                                          PRESIDING JUDGE, M.S.


CONCUR:
KOCH, J.
CAIN, J.
                                OPINION



             A prisoner sentenced to life imprisonment for armed robbery

escaped from custody and subsequently committed two felonies. After he was

recaptured, the Department of Correction declared that he would have to serve

the remainder of his life sentence without parole, in accordance with the

provisions of Tenn. Code. Ann. § 40-28-123(b). The prisoner filed a petition for

a declaratory judgment, arguing among other things that the application of the

statute to his sentence was a violation of the ex-post facto prohibition. The trial

court dismissed the petition. We affirm.



                                        I.



             On August 31, 1973, Donnie Wheeler was convicted of armed

robbery by a Marion County jury, and received a life sentence. On October 29,

1973, he was convicted of another armed robbery, and sentenced to ten years, to

be served concurrently with the life sentence. The prisoner was housed first at

the Tennessee State Penitentiary in Nashville, and than at Brushy Mountain State

Prison in East Tennessee. Under the law in effect at the time, he would have

become eligible for parole after serving thirteen years and six months on his life

sentence.



             On April 5, 1978, the governor signed into law Public Chapter 794,

now codified as Tenn. Code. Ann. § 40-28-123(b)(1) and (b)(2). The act

provided that any inmate convicted of a felony committed while participating in


                                       -2-
a program of supervised release into the community would have to serve the

remainder of his term without benefit of parole eligibility.



             Pursuant to an Institutional Pass Program, Mr. Wheeler was allowed

to attend a Harlem Globetrotters game in Knoxville on November 8, 1978,

accompanied by a prison employee. He used this opportunity to escape from

custody. Shortly thereafter, he was arrested in Washington County, and charged

with two new felonies. While awaiting trial on December 3, 1980, he escaped

from the Washington County Jail.



             During this period of escape, Mr. Wheeler left the state and

committed two armed robberies in Cleveland, Ohio, for which he was sentenced

to over ten years in that state’s prisons. In 1981, the prisoner was brought to

Tennessee under the Interstate Agreement on Detainers to stand trial on the two

Washington County felonies, and for escape and attempted escape.



             A jury found him guilty of armed robbery and assault with attempt

to commit murder, for which he received sentences of ten years and two to five

years respectively. He pleaded guilty to escape and attempted escape, and was

sentenced to one year for each of those offenses. All the sentences were ordered

to be served consecutively to each other, and to all other sentences previously

imposed. Mr. Wheeler was then returned to Ohio to complete his sentences

there.




                                       -3-
            On July 12, 1990, Mr. Wheeler was paroled from his Ohio

sentences, and returned to this state to serve out his Tennessee sentences. The

records of the Department of Correction were updated to reflect that he would

henceforth have no parole eligibility date because of the operation of Tenn.

Code. Ann. § 40-28-123(b)(1) on his felony convictions.



            On April 15, 1996, the prisoner filed a petition for a declaratory

order with the Department of Correction, asking that his parole eligibility date

be reinstated. The Department did not respond to the petition, and on July 1,

1996, Mr. Wheeler filed a petition for declaratory judgment in the Chancery

Court of Davidson County. See Tenn. Code. Ann. § 4-5-223.



             The State filed a motion for summary judgment on the petition. On

March 19, 1998, the trial court denied the State’s motion, holding that the

application of the 1978 law to petitioner’s 1973 sentence was a violation of the

ex post facto prohibition. An evidentiary hearing was conducted on February 16,

1999, during which Mr. Wheeler appeared and was questioned on direct and

cross-examination. On March 19, 1999 the trial court dismissed the petition.

This appeal followed.



          II. The Applicability of Tenn. Code. Ann. § 40-28-123



             Mr. Wheeler argues on appeal that Tenn. Code. Ann. § 40-28-123(b)

does not apply to him for two reasons. First, because he was not assigned to any

program that meets the definition found in part (1) of that statute, and second,


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because he had a vested right to serve his life sentence under the conditions in

effect at the time he was sentenced. We will discuss both of these arguments in

turn.



             We must first examine the language of Tenn. Code. Ann. § 40-28-

123(b), which reads as follows:

             (b)(1) Any prisoner who is convicted in this state of any
             felony except escape, and where the felony is committed
             while such prisoner is assigned to any work release,
             educational release, restitution release or other program
             whereby the prisoner enjoys the privilege of supervised
             release into the community, including, but not limited to,
             participation in any programs authorized by § 41-21-208
             or § 41-21-227, the prisoner shall serve the remainder of
             the term without benefit of parole eligibility or further
             participation in any such programs. The board shall have
             the authority to penalize or punish prisoners who escape
             from any of the above programs in accordance with board
             policy.

                    (2) As a prerequisite to any inmate's placement in
             such a program, the board shall read and provide the
             inmate with a copy of subdivision (b)(1). Such inmate
             shall then give written acknowledgement of receipt of
             such copy and shall signify comprehension of the
             provisions contained in it. A permanent file of such
             acknowledgements shall be maintained by the board.



             Mr. Wheeler argues that his trip to Knoxville was not part of a

program whereby he “enjoy[ed] the privilege of supervised release into the

community.” He first contends that since Tenn. Code. Ann. § 40-28-123(b)(1)

is a penal statute, it must therefore be construed strictly against the State. He

then notes that he was not in work release, educational release, restitution

release, or any programs authorized by Tenn. Code. Ann. §§ 41-21-208 or

41-21-227. He argues that he was merely out of prison for a single day, pursuant


                                      -5-
to a short-lived institutional experiment. Thus, he claims, his subsequent

felonies were not committed under the circumstances that would require

deprivation of parole eligibility under Tenn. Code. Ann. § 40-28-123(b)(1).



              We note, however, that the statute clearly states that it is not limited

to the types of programs it names specifically, but also applies to any program

“whereby the prisoner enjoys the privilege of supervised release into the

community.” We believe there can be no doubt that by leaving prison for a

basketball game in the company of a departmental employee, Mr. Wheeler was

enjoying the privilege of supervised release into the community.



              Mr. Wheeler cites to us the case of Johnson v. State, App. No. 01-A-

01-9312-CH00535 (Tenn. Ct. App. , April 12, 1995, at Nashville). In that case

this court reversed the Department of Correction’s application of Tenn. Code.

Ann. § 40-28-123(b)(1) to an inmate who had committed felonies while on

escape, because we found he had not been a participant in any of the programs

identified in the statute.



              Mr. Johnson had been a trusty at the Nashville Community Service

Center, a minimum security facility housing inmates who were eligible for

programs allowing supervised or unsupervised release into the community.

Although he was eligible for work release, the Department had turned down Mr.

Johnson’s application, and assigned him to work as a janitor within the

institution. We can easily distinguish that case from the present one, because

even though Mr. Johnson was housed in a minimum security facility in the


                                         -6-
company of other inmates who did participate in work release programs, he

himself did not possess or exercise the privilege of release into the community.



             Mr. Wheeler contends that his release into the community was not

pursuant to a “program”, as that term in the statute should be properly

understood. But we believe the evidence indicates otherwise. During the

hearing of this case, the State presented the deposition testimony of Stoney Ray

Lane, former warden of Brushy Mountain State Penitentiary. Warden Lane

testified that in 1978, he established an institutional pass program, which he

described as one where, subject to his approval, “an employee could take an

inmate that they knew well enough that they could trust into one of the

communities for any kind of activity, be it a ball game, a movie, a football game,

whatever.”



             Mr. Wheeler was released to attend the Globetrotters game pursuant

to that program. Warden Lane testified that the program was a new one, and that

no more than two or three dozen inmates had benefitted from it at the time of Mr.

Wheeler’s flight from custody. After his escape, the warden did not approve any

more individual passes.



             The record contains a document that recites the text of Public

Chapter 794, followed by the sentence “[b]y my signature, I acknowledge that

I have read and understood, or have had read to me and do understand, the

provision of Public Chapter 794.” At the bottom of the document is Mr.

Wheeler’s signature, the signature of a witness, Douglas Lowe, and the date


                                       -7-
7/24/78. At trial, Mr. Wheeler testified that he did not remember signing such

a document, but upon examining it, he acknowledged the signature as his own.



             The execution of such a document is a statutory requirement for

enrollment in a program of the type discussed in Tenn. Code. Ann. § 40-28-

123(b)(1), and its existence is persuasive evidence that the signatory was a

participant in a program covered by the statute. Therefore the chancery court did

not err in determining “that Petitioner was assigned to a program of supervised

release into the community at the time of his escape and Tenn. Code. Ann. § 40-

28-123 does apply.”



                         III. Constitutional Questions



             Mr. Wheeler contends that he was entitled to serve his sentence

under the law in existence at the time of his sentence, see Tenn. Code. Ann. § 40-

35-117, and that under that law, he was entitled to parole eligibility after serving

thirteen years and six months of his life sentence. He argues that since the

Department applied a statute enacted in 1978 to his 1973 sentence to his

detriment, he is being subjected to an unconstitutional ex post facto law.



             He also argues that the Department of Correction has violated the

due process and double jeopardy guarantees of the Tennessee and United States

Constitutions by applying Tenn. Code. Ann. § 40-28-123(b) to him, because it

imposes a substantial additional penalty to either his 1973 life sentence or his

1981 felony sentences.


                                        -8-
             We do not agree with any of these arguments. We note at the outset

that there is no constitutionally protected interest in parole, Greenholtz v. Inmates

of the Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979). Mr.

Wheeler’s interest in parole is confined to the proper application of the parole

statutes. See Wells v. Board of Paroles, 909 S.W.2d 826 (Tenn. Ct. App. 1996).



             We also note that the Founding Fathers found ex post facto laws to

be repugnant not least because such laws do not furnish individuals with fair

notice of the penalties which may result from their actions. That is not the

situation before us.



             The Department directs our attention to the reasoning in the case of

State ex rel York v. Russell, 176 S.W.2d 820 (1944), which is highly relevant here.

Mr. York was convicted of robbery in 1935, and received a sentence of “not less

than “five and not more than ten years in the State penitentiary.” In 1937, the

legislature enacted a statute that provided that if a prisoner was convicted of

committing a felony while on parole, he would have to serve the remainder of the

maximum term of the sentence he was paroled from, before beginning to serve his

sentence on the new felony. The current version of that statute is now found in

our Code as Tenn. Code. Ann. § 40-28-123(a).



             Mr. York was paroled in December of 1938. He was convicted of

petit larceny in 1940, and received a one-to-five year sentence. He appealed the

efforts of the state to apply the 1937 statute to him, arguing that it violated his




                                        -9-
right against the application of ex post facto laws. The Supreme Court analyzed

Mr. York’s claim thusly:

               “[T]he incidence of the legislative act is not upon the
               conviction of 1935, but upon the parole of 1938, when the
               legislation was in full force and effect. When petitioner
               accepted his parole in 1938, and he might have refused it,
               he accepted it under all the legislative conditions then in
               force, and he must be presumed to have known them.”



               Similarly, the imposition of Tenn. Code. Ann. § 40-28-123(b) is on

Mr. Wheeler’s 1978 escape and subsequent felony convictions. If he had not

committed those crimes, his parole eligibility date would have remained as it was

when he was sentenced in 1973.



               Tenn. Code. Ann. § 40-28-123(b) was in full force and effect when

Mr. Wheeler was allowed supervised release into the community. He could have

refused that release, but he accepted it, and there is evidence that he did so with

knowledge of the consequences that could possibly follow if he escaped and

committed subsequent crimes. He is not being penalized because the legislature

has decided to increase the quantum of punishment for a previously committed

crime (such an enactment would meet the definition of an ex post facto law).

Rather, the penalties specified in Tenn. Code. Ann. § 40-28-123(b) are being

imposed for a valid conviction of acts committed subsequent to the enactment of

the statute.



               For the same reason, the double jeopardy argument is also

unavailing for Mr. Wheeler. He was validly convicted in 1973, and received a




                                        -10-
life sentence. The elimination of parole eligibility does not add to that sentence.

It is, rather, an additional consequence of his 1981 convictions.



                                       IV.



             The judgment of the trial court is affirmed. Remand this cause to

the Chancery Court of Davidson County for further proceedings consistent with

this opinion. Tax the costs on appeal to the appellant, Donnie Franklin Wheeler.




                                        _______________________________
                                        BEN H. CANTRELL,
                                        PRESIDING JUDGE, M.S.


CONCUR:




____________________________
WILLIAM C. KOCH, JR., JUDGE



____________________________
WILLIAM B. CAIN, JUDGE




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