           IN THE COURT OF APPEALS OF TENNESSEE

JOHN J. VILLANUEVA
                          AT NASHVILLE
                               )                  FILED
                               )
     Plaintiff/Appellant,      )      Appeal No.March 17, 1999
                               )      01A01-9803-CH-00143
v.                             )               Cecil Crowson, Jr.
                                              Appellate Court Clerk
                               )      Davidson Chancery
TENNESSEE DEPARTMENT           )      No. 97-2928-III
OF CORRECTION,                 )
                               )
     Defendant/Appellee.       )
                               )

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


       THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

JOHN J. VILLANUEVA
#117376 NECX POB 5000
Mountain City, Tennessee 37683

PRO SE


JOHN KNOX WALKUP
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

PAMELA S. LORCH
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


CONCUR:
KOCH, J.
CAIN, J.

                                      PATRICIA J. COTTRELL , JUDGE
                                OPINION
      This appeal involves a state prisoner's challenge to his continued
incarceration. The prisoner contends that he is entitled to the benefit of the 1989
Sentencing Reform Act’s allegedly lesser sentence for the crime of which he was
convicted, rather than the life sentence imposed upon him as a habitual offender
at the time of his conviction in 1987. The trial court granted the Department's
Motion for Summary Judgment dismissing the prisoner's petition. We affirm
the trial court’s judgment.
           On July 16, 1987, Mr. Villanueva was found guilty by a Jefferson
County jury of first degree burglary. Based upon this "triggering" offense and
requisite qualifying felony convictions, the appellant received an enhanced
sentence of life imprisonment after a jury found him to be a habitual offender.1
See Tenn. Code Ann. § 39-1-801 [repealed 1989]. The appellant is currently
incarcerated at the Northeast Correctional Center in Johnson County. The
triggering offense of burglary was committed in September of 1986, and Mr.
Villanueva was sentenced on July 16, 1987.
           On August 7, 1997, Mr. Villanueva 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 credits2. The
Department refused to grant relief on August 11, 1997. On August 29, 1997, Mr.
Villanueva 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.
The trial court granted a summary judgment motion filed on behalf of the
Department.3


      1
        Subsequently, Appellant was also convicted of rape, sexual battery and
burglary in the first degree.
      2
          Mr. Villanueva has not raised this sentence reduction credit issue on
appeal.
      3
         The trial court noted in its order that the Appellant’s failure to comply
with Tenn. Code Ann. § 41-21-801 et seq., warranted dismissal of Appellant’s
petition. We agree. However, like the trial court, we have considered the
Appellant’s substantive claims.
                                        2
          The Appellant committed the triggering offense in 1986, and he was

sentenced on July 16, 1987 under the Habitual Offender Act. That act was

repealed in 1989 and replaced by the Sentencing Reform Act of 1989. Tenn.

Code Ann. § 40-35-101 et seq. On appeal, Appellant contends that had he been

sentenced under the 1989 Act for the same offense (burglary), his sentence

would have been significantly shorter than the sentence he is now serving. He

further contends that his sentence should be reduced to the lower sentence

applicable after 1989 because of the criminal savings statute, Tenn. Code Ann.

§ 39-1-1054 (1982) [repealed], and by virtue of the equal protection clause of the

Tennessee Constitution. With respect to these issues, the trial court held:

              At the outset, it is apparent that the 1989 Act does not
          apply to the plaintiff’s case because the provisions of the Act
          state that the Act applies only where the crime was
          committed or sentence is pending at the time of the new
          enactment, November 1, 1989.

             Additionally, the Criminal Savings Statute has never been
          interpreted to apply to convictions and sentences which were
          already received when a subsequent act or amendment
          provides for a lesser penalty. State ex rel. Stewart V.
          McWherter, 857 S.W.2d 875 (Tenn. Crim. App. 1992).

                The plaintiff’s equal protection claim also must fail
          because the legislature treating a particular class of persons
          differently is allowed as long as there is a reasonable
          relationship to a legitimate state interest. The legitimate state
          interest is not allowing the reopening of all cases involving
          sentences imposed before November 1, 1989. Stewart at
          876-77.

          Mr. Villanueva maintains that the criminal savings statute mandates

downward adjustment of his sentence to the 1989 Act’s relevant maximum

entitling him to immediate release. The criminal savings statute in effect when



      4
       This section was codified at Tenn. Code Ann. § 39-1-105 at the time of
Appellant’s offense 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
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 will 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 will 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).
           The court in Stewart also addressed the equal protection challenge
based on Article XI, § 8 of the Tennessee Constitution raised by Mr. Villanueva,
which is that he and those 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 noted that a primary purpose of the legislature in
enacting the 1989 Sentencing Act was to fight overcrowding in the prison system
by creating new sentencing standards. By limiting the Act in application to
persons not previously sentenced, the legislature devised a "partial solution to
prison overcrowding while avoiding the reopening of cases in which persons had
been validly sentenced previously." Id. at 877. The court 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.” 5 Id. at 876. The court further


       5
          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
                                            4
noted the interests served:
         [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 are 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. We hold that neither
the criminal savings statute nor the Tennessee Constitution mandate that the
1989 Sentencing Act be retroactively applied to Mr. Villanueva’s 1987 sentence.
See Wilson v. State, 980 S.W.2d 196 (Tenn. Ct. App. 1998), perm. to appeal
denied (Tenn. 1998); Smith v. State, 1998 WL 75288 (Tenn. Crim. App. 1998);
State ex rel. Stewart v. McWherter, 857 S.W.2d 875, 877 (Tenn. Crim. App.
1992), perm. to appeal denied (Tenn. 1993); State ex rel. Crum v. McWherter,
1992 WL 99029 (Tenn. Crim. App. 1992), perm. to appeal denied (Tenn. 1992).
          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. Villanueva.




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
                                  ____________________________
                                  PATRICIA J. COTTRELL, JUDGE
CONCUR:


______________________________________
WILLIAM C. KOCH, JUDGE


______________________________________
WILLIAM B. CAIN, JUDGE




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