             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                    FILED
                                                      March 12, 1999

CHARLES A. BUTLER,                    )             Cecil Crowson, Jr.
                                      )            Appellate Court Clerk
       Petitioner/Appellant,          )
                                      )   Appeal No.
                                      )   01-A-01-9804-CH-00172
VS.                                   )
                                      )   Davidson Chancery
                                      )   No. 97-2826-III
TENNESSEE DEPARTMENT OF               )
CORRECTION,                           )
                                      )
       Respondent/Appellee.           )


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

            THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR




CHARLES A. BUTLER #136479
Northeast Correctional Center
P. O. Box 5000
Mountain City, Tennessee 37683
       Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General and Reporter

MICHAEL L. HAYNIE
Assistant Attorney General
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


              An inmate sentenced to seventy-five years imprisonment under the

Class X law filed a petition for writ of certiorari and for declaratory judgment, claiming

that he was entitled to have his sentence recalculated under the more lenient statute

that was enacted after he was sentenced. The trial court dismissed the petition. We

affirm.



                        I. A Change in the Sentencing Law



              Charles A. Butler was convicted of aggravated assault, burglary with a

firearm, and robbery with a deadly weapon. The date of these offenses was June 18,

1987. He was sentenced on May 26, 1989, and was ordered to serve ten years for

the assault, fifteen years for the burglary, and fifty years for the armed robbery, an

offense which was classified as a Class X felony both at the time the crime was

committed and the time of sentencing.           The sentences were ordered to run

consecutively, for a total sentence of seventy-five years. On November 1, 1989, the

Class X felony law was repealed, and was replaced by the more lenient Criminal

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



              On May 15, 1997, Mr. Butler submitted a petition for a declaratory order

to the Department of Correction, asking the Department to release him from custody

immediately. He argued that he was entitled to be resentenced under the Criminal

Sentencing Reform Act of 1989, on both statutory and constitutional grounds; that

under the 1989 Act, the maximum penalty he could receive for the armed robbery

would be twenty-five years; and that the application to the reduced sentence of certain

sentence credits he had earned, and other credits he claimed to be entitled to,




                                          -2-
rendered him eligible for immediate release. The Department denied his petition on

July 21, 1997.



              On August 22, 1997, Mr. Butler filed a timely petition, styled as a

“Petition for Judicial Review, Declaratory Judgment and Writ of Certiorari” in the

Chancery Court of Davidson County. His petition repeated the same arguments that

were contained in his petition for a declaratory order, though with a bit more detail,

and added the contention that the Department had exceeded its jurisdiction, and had

acted “unconstitutionally, illegally, fraudulently and arbitrarily” by denying his earlier

petition.



              The Department filed a motion to dismiss the petition on the ground that

it failed to state a claim upon which relief could be granted. On March 3, 1998, the

trial court granted the defendant’s motion. This appeal followed.



                            II. The Statutory Argument



              Mr. Butler argues on appeal that a law in effect at the time he was

sentenced entitles him to receive the benefit of any subsequent statutory change in

sentencing. He also argues that the State’s failure to treat him in the same manner

as those sentenced after November 1, 1989 was a violation of his constitutional equal

protection rights. Both of those arguments have been examined by our courts in

earlier cases, and were found to be without merit.



              Mr. Butler’s bases his statutory argument upon Tenn. Code Ann. § 39-1-

105. This act, repealed in 1989, and reenacted as Tenn. Code Ann. § 39-11-112 read

as follows:

              Repealed or amended laws -- Application in prosecution
              for offense.-- 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 such

                                            -3-
              statute or act being repealed or amended, committed while
              such statute or act was in full force and effect shall be
              prosecuted under such 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.



              In the case very similar to this one, State ex rel. Stewart v. McWherter,

857 S.W.2d 875 (Tenn. Crim. App. 1992), the court analyzed Tenn. Code Ann. § 39-

1-105, and determined it to apply only to active prosecutions. Thus, only those who

had not been sentenced prior to the effective date of a law reducing the penalty for

their crime would receive the benefit of the more lenient law; those who had already

been sentenced would not have their sentences altered.



              As the court noted, this interpretation is consistent with the enabling

legislation for the 1989 Sentencing Act which provides that the “act shall not affect

rights and duties that matured, penalties that were incurred, or proceedings that were

begun before its effective date.” 1989 Public Acts ch. 591 § 115. Further, Tenn.

Code Ann. § 40-35-117 specifically limits the application of the Act to those individuals

sentenced after its effective date of November 1, 1989.



                         III. The Constitutional Argument



              The appellant contends that the statute violates his equal protection

rights under the Fourteenth Amendment of the U.S. Constitution, and under Article XI,

Section 8 of the Tennessee Constitution. He argues that no legitimate governmental

purpose is served by incarcerating him for fifty years, when another individual

sentenced for an identical crime could be sentenced to no more than twenty-five

years, just because he was sentenced after November 1, 1989. Mr. Butler argues (as

did Mr. Stewart) that strict constitutional scrutiny should be applied to his claim

because of the liberty interest at stake. See Doe v. Norris, 751 S.W.2d 834 (Tenn.

1988).

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              In the alternative, he argues that even if we do not find a fundamental

right to be at stake, and we therefore apply the more relaxed “rational basis test” to

his claim, we would still be required to resentence him, because the State can claim

no possible rational relationship between classifications based upon date of

sentencing, and any legitimate state interest.         See Massachusetts Board of

Retirement v. Murgia, 427 U.S. 307 (1976); Plyler v. Doe, 457 U.S. 202 (1982).



              In the Stewart case, supra, the Court of Criminal Appeals held that the

strict scrutiny test did not apply, because the prisoner had lost the relevant portion of

his fundamental right to personal liberty by virtue of his lawful conviction. We agree

with the Court of Criminal Appeals.



              The court went on to say, however, that even if it applied the strict

scrutiny test to the prisoner’s claim, it would still have to uphold the constitutionality

of the distinction created by Tenn. Code Ann. § 40-35-117, because of a compelling

state interest which it explained as follows:

              There 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 the
              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.

857 S.W.2d at 877.



              Mr. Butler criticizes this reasoning. He cites the statutes creating the

Parole Eligibility Review Board and permitting Class X offenders to sign waivers and

receive sentence reduction credits under new law as two examples of the legislative

willingness to open “a pandora’s box” of old cases, and thus implies that the


                                          -5-
legislature itself has found the governmental interest discussed above less than

compelling.



              However, we disagree. We regard the legislature’s actions as an

attempt to balance competing, but equally legitimate governmental interests. It

wished to relieve prison overcrowding without endangering the public, while at the

same time preserving the finality of validly imposed sentences. To accomplish this,

it enacted statutes that are far more narrowly focused than would be the wholesale

resentencing of those convicted under the Class X laws.          It opened the lid of

pandora’s box to the extent it believed necessary, and cannot be compelled by virtue

of that action to open it further.



              Mr. Butler argues that the appellee’s interpretation of the Sentencing

Reform Act of 1989 undermines the legislature’s stated goal of reducing prison

overcrowding. He refers us to the case of State v. Ashby, 823 S.W.2d 166 (Tenn.

1991), in which our Supreme Court reversed a sentence of incarceration after a broad

discussion of sentencing considerations, including the State’s interest in reducing

overcrowding.



              However the Ashby case involved the proper application of the

Sentencing Reform Act of 1989 to a defendant who had been sentenced under that

Act on November 15, 1989. The Supreme Court asserted that the question of prison

overcrowding should have been part of the equation considered by the trial court in

its original sentence.    That case did not involve the assertion of a right to be

resentenced because of a change in the law. Thus the opinion in Ashby does not

conflict with Stewart, despite Mr. Butler’s argument to the contrary. The two cases are

easily distinguishable on the facts, as well as on the law which is under examination.



                          IV. Sentence Reduction Credits


                                         -6-
              Finally, the trial court dismissed Mr. Butler’s claim that he was entitled

to Good Conduct Sentence Credits, Prisoner Performance Credits, and additional

sentence credits under the Inmate Incentive Program, pursuant to Tenn. Code Ann.

§§ 41-21-228, 229 and 230. As the trial court pointed out, each of these statutes was

repealed in 1985, prior to the date of his offense, and therefore they did not apply to

him.



              Mr. Butler again brings up sentence reduction credits on appeal, but now

bases his argument on whether or not he was “‘fully informed’ of his right to sign (or

not to sign) a waiver.” This argument was not presented in the trial court, and as it is

being raised for the first time on appeal, this court is not required to consider it. Irvin

v. Binkley, 577 S.W.2d 677 (Tenn. App. 1979).



              However it appears that Mr. Butler is referring to the fact that the

Department of Correction is authorized to continue calculating sentence credits

according to the scheme established by Tenn. Code Ann. §§ 41-21-121 through 41-

21-233, for inmates who have not waived that right in order to receive the benefits of

sentence reduction credits under the later-enacted Tenn. Code Ann. § 41-21-236. But

the right to receive credits under the repealed statutes (and thus the right to sign a

waiver) is limited to those whose offenses occurred when those statutes were still in

effect. Thus the argument is without merit.



                                            V.



              The order 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.




                                           -7-
                                _________________________________
                                BEN H. CANTRELL,
                                PRESIDING JUDGE, M.S.



CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE




_____________________________
WILLIAM B. CAIN, JUDGE




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