            IN THE COURT OF APPEALS OF TENNESSEE
                       AT NASHVILLE

JOHN C. TOMLINSON,                    )
                                      )
                                                       FILED
      Plaintiff/Appellant,            )       Appeal No. May 5, 1999
                                      )       01A01-9804-CH-00204
v.                                    )               Cecil Crowson, Jr.
                                                     Appellate Court Clerk
                                      )       Davidson Chancery
TENNESSEE DEPARTMENT                  )       No. 97-2959-I
OF CORRECTION,                        )
                                      )
      Defendant/Appellee.             )
                                      )

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


     THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

JOHN C. TOMLINSON
#099306 NECX P. O. Box 5000
Mountain City, Tennessee 37683

PRO SE


JOHN KNOX WALKUP
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

PATRICIA KUSSMANN
Assistant Attorney General
Civil Rights and Claims Division
Second Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, Tennessee 37243

ATTORNEYS FOR DEFENDANT/APPELLEE

                      AFFIRMED AND REMANDED

                                          PATRICIA J. COTTRELL , JUDGE

CONCUR:

CANTRELL, J.
KOCH, J.
                               OPINION
      In this appeal, a state prisoner appeals the trial court’s dismissal of his

action in which he contends that he is entitled to the benefit of the 1989

Sentencing Reform Act’s allegedly lesser sentences for armed robbery,

aggravated rape and aggravated kidnaping rather than the sentences imposed

upon him at the time of his convictions in 1983. He also contends he is entitled,

as a matter of law, to certain sentence reduction credits. Finally, he contends

that, taken together, the downward adjustments of his sentence on the basis of

these two contentions would entitle him to immediate release from custody. We

affirm the dismissal of the prisoner's petition because it fails to state a claim

upon which relief can be granted.

                                       I.

         John Tomlinson is serving a sentence of 65 years in prison for the

offenses of robbery by use of a deadly weapon (three counts), aggravated

kidnaping and aggravated rape. These offenses were committed in 1982, and

Mr. Tomlinson was sentenced on April 28, 1983 in Davidson County and on

December 15, 1983 in Wilson County.

         Mr. Tomlinson filed a Petition for Declaratory Order with the

Tennessee Department of Correction, asking the Department to immediately

release him on the basis of an interpretation of Tenn. Code Ann. § 39-1-105 and

various statutes relating to sentence reduction credits. The Department refused

the Declaratory Order on August 12, 1997. On September 3, 1997, Mr.

Tomlinson filed a Petition for Judicial Review and/or Petition for a Declaratory

Judgment and/or Petition for Common-law Writ of Certiorari in the Chancery

Court of Davidson County, seeking judicial review of the Department’s decision.


                                      -2-
          The trial court dismissed Appellant’s claim and granted a Tenn. R. Civ.

P. 12.02(6) motion filed on behalf of the Department. The trial court held that

Appellant was not entitled to a declaratory judgment reducing his sentence.

Further, with regard to the Appellant’s claims under common law writ of

certiorari, the trial court found that the Appellant had alleged no facts indicating

the Department exceeded its jurisdiction or acted illegally.

                                        II.

          When the Appellant committed the offenses of robbery by use of a

deadly weapon, aggravated rape and kidnaping in 1982, and when he was

sentenced for those offenses on April 28 and December 15, 1983, these were

Class X Felonies under Tenn. Code Ann. § 39-1-701 et seq. (1982) [repealed].

          In 1989, the Class X Felony Act was repealed and replaced by the

Sentencing Reform Act of 1989.          Tenn. Code Ann. § 40-35-101 et seq.

Appellant contends that had he been sentenced under the 1989 Act for the same

offenses, his sentences would have been significantly shorter than the sentences

he is now serving.1 He further contends that his total combined sentence should

be reduced to the lower total sentence applicable after 1989 because of the

criminal savings statute, Tenn. Code Ann. § 39-1-1052 (1982) [repealed], and by


      1
         The law was changed by the Criminal Sentencing Reform Act of 1989
such that aggravated robbery (which would include robbery using a deadly
weapon) is now a Class B felony. Tenn. Code Ann.§ 39-13-402 (1997).
Aggravated rape is now a Class A felony, Tenn. Code Ann. § 39-13-502, and
aggravated kidnaping is a Class B felony, Tenn. Code Ann. § 39-13-304. Mr.
Tomlinson was sentenced to a total of 65 years imprisonment and asserts that
under the 1989 Act, the maximum sentence he could receive for these offenses
is forty years. In view of our holding, we need not address the accuracy of
Appellant’s assertion regarding the maximum sentences under the 1989 Act.

      2
        This section was codified at Tenn. Code Ann. § 39-1-105 at the time of
Appellant’s offenses and sentencing, but was repealed as of November 1, 1989,
and replaced by Tenn. Code Ann. § 39-11-112 (1997), which is nearly identical
in language.

                                        -3-
virtue of the equal protection clause of the Tennessee Constitution.

         The criminal savings statute does not apply to sentences already

imposed at the time legislation was adopted which provided for a lesser penalty.

The criminal savings statute in effect when Appellant was sentenced and until

November of 1989 read:


         Whenever any penal statute or penal legislative act of the
         state is repealed or amended by a subsequent legislative act,
         any offense, as defined by the statute or act being repealed or
         amended, committed while such statute or act was in full
         force and effect shall be prosecuted under the act or statute
         in effect at the time of the commission of the offense. In the
         event the subsequent act provides for a lesser penalty, any
         punishment imposed shall be in accordance with the
         subsequent act.

Tenn. Code Ann. § 39-1-105 (1982).

         As the Court of Criminal Appeals has stated, "The criminal savings

statute has never been interpreted to apply to convictions and sentences which

were already received when a subsequent act or amendment provided for a lesser

penalty. By their terms, the former and present savings statutes relate to active

prosecutions, not past cases for which sentences are being served." State ex rel.

Stewart v. McWherter, 857 S.W.2d 875, 877 (Tenn. Crim. App. 1992), perm. to

appeal denied (Tenn. 1993). Therefore, the criminal saving statute does not

require that the sentences established in the 1989 statute be applied to anyone

already serving a previously imposed sentence.

         The court in Stewart also addressed an equal protection challenge based

on Article XI, § 8 of the Tennessee Constitution which was identical to the issue

Mr. Tomlinson has raised herein. Mr. Tomlinson argues that he and others

sentenced prior to the 1989 Act were not treated equally to identical offenders

who were sentenced after the 1989 law became effective. The Stewart court



                                      -4-
concluded that the 1989 Act survived equal protection scrutiny because the

purposes for distinguishing between prisoners sentenced under the Act and those

sentenced under prior law “satisfy a compelling state interest and the means used

are suitably tailored to accomplish those purposes.”3 Id. at 876. In identifying

those interests, the Court noted:

          [T]here is a legitimate state interest at stake in not allowing
          the reopening of a virtual Pandora's box of all cases
          involving sentences imposed before November 1, 1989, but
          which are presently being served by confinement, parole, or
          probation.

          Society has a strong interest in preserving the finality of
          criminal litigation resulting in a conviction and sentence
          which were valid at the time of their imposition. The
          wholesale unsettling of final judgments of conviction and
          sentence which would occur if the 1989 Act were applicable
          as petitioner claims is a price the legislature was justified in
          not paying when it provided that the Act would not apply to
          previously sentenced offenders....Society is not required to
          undergo such a disruption of its criminal justice system.

Id. at 877 (quoting State ex rel. Crum v. McWherter, 1992 WL 99029 (Tenn.

Crim. App.1992), perm. to appeal denied (Tenn. 1992)).

          Thus, Appellant’s continued incarceration under his original sentence

does not violate his right to equal protection under the law. The trial court

properly dismissed Appellant’s claim that he should be resentenced under the

1989 Criminal Sentencing Reform Act. See Wilson v. State, 980 S.W.2d 196

(Tenn. App. 1998).


      3
          The Stewart court questioned whether the strict scrutiny test was
applicable in that case since a prisoner has no fundamental right to liberty after
valid conviction and sentencing, citing several cases in support of that position.
Id. At 876. In State v. Tester, 879 S.W.2d 823 (Tenn. 1994) our Supreme Court,
citing Stewart, stated, “Although the right to personal liberty is fundamental, that
right is not implicated after a person is convicted of a crime and the only issue
is the manner of service of the sentence imposed.” The Stewart court, finding
a compelling state interest, determined that the application of the 1989 Act’s
shorter sentences only to persons who were not already sentenced under prior
law would meet the higher strict scrutiny standard even if that standard were
applicable.

                                        -5-
                                       III.

          Mr. Tomlinson’s second issue involves his eligibility for various

sentence reduction credits. Prior to July 1, 1983 those convicted of Class X

felonies were not entitled to sentence reduction for good, honor, incentive or

other sentence reduction credits of any sort. Tenn. Code Ann. § 39-1-703 (1982)

[repealed]. In 1983, the General Assembly adopted Public Chapter 400, which

became effective July 1, 1983. In pertinent part, Section 3 of Chapter 400 stated:


          Notwithstanding the provisions of this chapter to the
          contrary, a person convicted of a Class X felony shall be
          eligible to receive prisoner performance sentence credits as
          provided in Tenn. Code Ann. § 41-21-230 to reduce the
          expiration date of such person’s sentence. The provisions of
          this subsection shall not affect the release classification
          eligibility date of Class X offenders.

Tenn. Code Ann. § 40-28-301(I) (1983 Supp.) [repealed].

          Appellant is eligible, as a Class X felon, for those credits available

through Tenn. Code Ann. § 41-21-230, from July 1, 1983, the effective date of

Public Chapter 4004, but only for those credits.

          In 1985, the General Assembly repealed those provisions then codified

at Tenn. Code Ann. §§ 41-21-212, -214, -228, -229, and -230 (various sentence

reduction credit eligibility statutes) and enacted Tenn. Code Ann. § 41-21-236

(1997). 1985 Tenn. Pub. Acts ch. 5 §§ 12 & 14. This provision allowed inmates

convicted of Class X felonies to earn sentence reduction credits as follows:


          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


      4
       Obviously, if Mr. Tomlinson was not, in fact, incarcerated until after July
1, 1983, he would have become eligible on the date of his incarceration.

                                       -6-
        by this section may be awarded only for conduct and/or
        performance from and after the date a person becomes
        eligible under this section.
Tenn. Code Ann. § 41-21-236(c)(3) (1990). (Emphasis added.).

          Tenn. Code Ann. § 41-21-236(g) specifically authorizes the

Department to continue the application of certain previously enacted sentence

credit programs to any inmates to whom they applied at the time of enactment

and who do not sign the written waivers provided for in § 41-21-236(c).

          Thus, it appears that Appellant was eligible to earn those sentence

reduction credits defined and established in former § 41-21-230, pursuant to

Tenn. Code Ann. § 40-28-302 (1983 Supp.) [repealed] from its effective date

until he signed a § 41-21-236(c) waiver in 1986. From that point, Appellant was

eligible to earn the credits available under Tenn. Code Ann. § 41-21-236. Thus,

Appellant has been eligible for certain sentence reduction credits since July 1,

1983, but for only one kind of credit at any time. The Department asserts it has

treated Mr. Tomlinson in accordance with these conclusions, and Mr. Tomlinson

does not dispute that assertion.

          From all of the above, it is clear that Mr. Tomlinson’s arguments

regarding cumulative and retroactive eligibility for other types of sentence

reduction credits have no basis in the statutes themselves. This is fatal to his

claim since Mr. Tomlinson’s eligibility for sentence reduction credits depends

upon the language of the statutes creating, authorizing, or defining such credits.

Jones v. Reynolds, 1997 WL 367661, *3 (Tenn. App. July 2, 1997). A review

of the statutes relied upon by Appellant demonstrates that, as a Class X felon,

he was not eligible for the sentence reduction credits established in any of the

statutes he cites, except for T.C.A. § 41-21-230. With regard to those § 230

credits , the Department agrees that he was eligible for such credits until his 1986



                                        -7-
waiver and has credited him with them.

          To the extent Appellant’s claims can be construed as an argument that

he is entitled to both §§ 41-21-230 and 41-21-236 credits for any period of time,

Tenn. Code Ann. § 41-21-236(c)(3), quoted above, clearly provides for election

by the prisoner of the one type of credit he prefers. See Jones v. Reynolds, 1997

WL 367661 (Tenn. App. July 2, 1997). By signing his waiver in 1986, Mr.

Tomlinson chose the type of credit he preferred. He is not entitled to claim both

kinds of credits.

          Additionally, a plain reading of Tenn. Code Ann. § 41-21-236 clearly

indicates the General Assembly’s intention regarding its applicability. In

particular, § 41-21-236(c)(3), quoted above, specifically states the method for

applying § 41-21-236 to previously convicted Class X felons. It is prospective

only, and available only upon a written waiver. Petitioner has no right to

eligibility for § 41-21-236's sentence reduction credits prior to signing the waiver

in 1986 and has no basis for claiming retrospective application prior to § 41-21-

236's enactment.

          Finally, Appellant has raised on appeal an issue not raised in the trial

court. That issue is whether he was fully informed of his § 41-21-236(c) waiver

option and, therefore, whether his eligibility for sentence reduction credits under

§ 41-21-236 should begin earlier. It is well settled that an issue cannot be raised

for the first time on appeal. Irvin v. Binkley, 577 S.W.2d 677, 679 (Tenn. App.

1979); Stewart Title Guitar Co. v. F.D.I.C., 936 S.W.2d 266, 270-271 (Tenn

App. 1996). The trial court herein was not presented with this issue or any

factual information necessary to determine the issue. This Court can only

consider such matters as were brought to the attention of the trial court.




                                        -8-
                                        IV.

           Mr. Tomlinson’s claims are based solely on legal arguments. In light

of the clear holdings in Stewart v. McWherter and Wilson v. State, and in light

of the clear language of the statutes involved, Mr. Tomlinson’s petition fails to

state a cause of action. We hold that neither the criminal savings statute nor the

Tennessee Constitution mandate that the 1989 Sentencing Act be retroactively

applied to Mr. Tomlinson’s 1983 sentence. We further hold that Mr. Tomlinson

is not entitled to eligibility for the statutorily created sentence reduction credits

of Tenn. Code Ann. §§ 41-21-212, -214, -228, or -229. We therefore affirm the

trial court's dismissal of this case, and remand the case for whatever further

proceedings may be required. The costs of this appeal should be taxed to Mr.

Tomlinson.



                                                __________________________
                                                PATRICIA J. COTTRELL, JUDGE

CONCUR:


______________________________________
BEN H. CANTRELL, PRESIDING JUDGE (M.S.)


______________________________________
WILLIAM C. KOCH, JUDGE




                                        -9-
