            IN THE COURT OF APPEALS OF TENNESSEE
                       AT NASHVILLE

RANDY L. HENSLEY,                     )
                                      )
                                                         FILED
      Plaintiff/Appellant,            )       Appeal No. March 17, 1999
                                      )       01A01-9712-CH-00747
v.                                    )                 Cecil Crowson, Jr.
                                      )       Davidson Chancery Court Clerk
                                                       Appellate
TENNESSEE DEPARTMENT                  )       No. 97-2538-I
OF CORRECTION,                        )
                                      )
      Defendant/Appellee.             )
                                      )

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


     THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

RANDY L. HENSLEY
#099477 NECX POB 5000
Mountain City, Tennessee 37683

PRO SE


JOHN KNOX WALKUP
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

MICHAEL L. HAYNIE
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:

CANTRELL, J.
KOCH, J.

                                          PATRICIA J. COTTRELL , JUDGE
                                OPINION
      This appeal involves a state prisoner's challenge to his current and
continued incarceration. Mr. Hensley contends that he is entitled to the benefit
of the 1989 Sentencing Reform Act’s lesser sentence for robbery armed with a
deadly weapon, rather than the sentence of life imprisonment imposed at the time
of his conviction in 1984. 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 be immediately released from custody. The trial court
granted the Department of Correction's motion to dismiss pursuant to Rule
12.02(6) of the Tennessee Rules of Civil Procedure. We affirm the dismissal of
the prisoner's petition because it fails to state a claim upon which relief can be
granted.
                                         I.
           Randy Hensley is incarcerated in the Northeast Correctional Center
where he was ordered to serve life in prison for the offense of robbery by use of
a deadly weapon. This offense was committed on August 19, 1984, and Mr.
Hensley was sentenced on September 18, 1984. On May 9, 1997, Mr. Hensley
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. Before the Department, he also raised other issues
not raised in his trial or in this appellate proceeding. The Department refused the
declaratory order on June 27, 1997. On July 30, 1997, Mr. Hensley 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 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.


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                                        II.
          When the Appellant committed the offense of robbery by use of a
deadly weapon in 1984, and when he was sentenced for that offense on
September 18, 1984,1 robbery by use of a deadly weapon was a Class X Felony
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
offense, 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. § 39-1-1052 (1982) [repealed], and by virtue of the equal
protection clause of the Tennessee Constitution.
          In dismissing Mr. Hensley’s action, the trial court held that the criminal
savings statute did not apply to sentences already imposed at the time the statute
was enacted which provided for a lesser penalty. We agree.
          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 stated above, at the time of Mr. Hensley's offense, robbery by use
of a deadly weapon was a Class X felony. However, the law was changed by the
Criminal Sentencing Reform Act of 1989 such that aggravated robbery (which


      1
      Mr. Hensley states he was sentenced on September 25, 1984, but
Department records included in his pleadings indicate September 18, 1984.
      2
       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).

                                        -3-
would include robbery using a deadly weapon) is now a Class B felony. Tenn.
Code Ann.§ 39-13-402 (1997). Mr. Hensley was sentenced to life imprisonment
and asserts that under the 1989 Act, the maximum sentence he could receive for
aggravated robbery is twenty five years.3
          Mr. Hensley maintains that the criminal savings statute mandates
downward adjustment of his sentence to the 1989 Act’s relevant maximum
entitling him to immediate release. 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. Hensley,
which is that he and those sentenced prior to the 1989 Act were not treated
equally to identical offenders (persons convicted of armed robbery) 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.” Id. at 876.
The court further noted the interests served:4

      3
       In view of our holding, Appellant’s assertions regarding any potential
sentence he might have received under the 1989 Act require no further
examination.
      4
        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

                                        -4-
          [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. Both of Appellant’s
arguments regarding his entitlement to a sentence comparable to the 1989
Sentencing Reform Act’s sentences have been considered and rejected by this
State’s appellate courts. Wilson v. State, 980 S.W.2d 196 (Tenn. 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).




                                        III.
          Mr. Hensley’s second issue involves his eligibility for various sentence
reduction credits. The basic facts relevant to an analysis of his position are that
his offense was committed and he was sentenced in 1984, as a Class X offender.
          Prior to July 1, 1983 those convicted of Class X felonies were not


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-
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].

         Since Appellant was convicted of a crime which was committed after
the effective date of Chapter 400, he was eligible, as a Class X felon, for those
credits available through Tenn. Code Ann. § 41-21-230, as it was in effect at the
time of Public Chapter 400's enactment (Prisoner Performance Sentence Credits).
In 1985, the General Assembly repealed those provisions then codified at Tenn.
Code Ann. §§ 41-21-212, -214, -228, -229, and -230 and enacted Tennessee
Code Ann. § 41-21-236 (1997). 1985 Tenn. Pub. Acts ch. 5 §§ 12 & 14 (E.S.).
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 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.).
         The Department’s position is that Appellant was entitled to earn
Prisoner Performance Sentence Credits, pursuant to Ch. 400, Tenn. Public Acts
of 1983, which credits could reduce the sentence expiration date, not the release
eligibility date. The Department also maintains that Appellant has been eligible
to earn Prisoner Sentence Reduction Credits, pursuant to Tenn. Code Ann. § 41-
21-236(c)(3), from the time Appellant executed the waiver required by the

                                      -6-
statute.5
            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 the Department’s position is 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 his incarceration until he signed a § 41-21-236(c) waiver. From
that point, Appellant was eligible to earn the credits available under Tenn. Code
Ann. § 41-21-236. Thus, according to the Department, Appellant has been
eligible for certain sentence reduction credits since his incarceration, but for only
one kind of credit at any time.
            Appellant appears to argue that he is entitled to additional sentence
reduction credits authorized by other statutes and/or that he is entitled to
cumulatively accrue all potential credits for which he may have been eligible at
any time. Appellant argues that he “was entitled to earn, and should have
received, the following sentence reduction credits at the same time and
retroactively, as a matter of law.”(Emphasis in original.) Petition for Declaratory
Order (T.R. 10). Appellant argues that he is entitled to the sentence credits
provided in T.C.A. §§ 41-21-212, -214, -228, -229, and -230.
            Mr. Hensley’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
relevant statutes as discussed above demonstrates that he was not eligible as a
Class X offender for the sentence reduction credits established in any of the
statutes he cites, except for Tenn. Code Ann. § 41-21-230 and, after the waiver,
§ 41-21-236.
            Appellant’s position that he is entitled to retroactive application of the
sentence reduction credits in Tenn. Code Ann. §§ 41-21-212, -214, -228, and -


       5
        In his trial court pleadings, Mr. Hensley stated he signed a Section 236
waiver in April of 1992. However, in its brief in this Court, the Department
states that Mr. Hensley signed a waiver in 1986, and the Department’s records
attached to Mr. Hensley’s trial court pleadings indicate a waiver date of March
1, 1986.

                                          -7-
229 necessarily also fail since he was never eligible for those credits. His claim
of retroactive application of eligibility for the § 41-21-230 credits is answered
by the Department’s position that he was eligible for such credits from the date
of his incarceration.
          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).
          To the extent that Appellant’s claims can be construed to argue that §
41-21-236 should be applied retroactively, that claim must also fail. First,
Appellant listed those statutes which he argued he was entitled to have
retroactively applied, and § 41-21-236 is not among those listed. In addition, as
this court has previously observed in Henderson v. Lutche, 938 S.W.2d 428
(Tenn. App. 1996), there is a presumption that courts are to apply statutes
prospectively unless there is a specific statutory directive requiring courts to
apply them retrospectively. Our Supreme Court has stated "in the absence of
legislative intent or a necessary inference that a statute is to have retroactive
force, an act of the legislature is to be given prospective effect only by the
courts." Electric Power Bd. v. Woods, 558 S.W.2d 821, 825 (Tenn. 1977). Courts
must apply a statute prospectively in the absence of "the most clear and
unequivocal expression" to the contrary. Henderson v. Ford, 488 S.W.2d 720,
721 (Tenn. 1972) (quoting Jennings v. Jennings, 165 Tenn. 295, 54 S.W.2d 961
(1932)). Tenn. Code Ann. § 41-21-236 contains no such “clear and unequivocal
expression” that it is to be applied retroactively, and there is nothing in the
statute from which we can infer that the General Assembly intended it to apply
retroactively. Rather, a plain reading of the statute clearly indicates the opposite
intention. In particular, § 41-21-236(c)(3), quoted above, clearly 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 and has no basis for claiming retrospective application prior to § 41-
21-236's enactment.
          Appellant has not claimed that the Department has miscalculated his


                                        -8-
sentence reduction credits. Rather, he claims that the Department has denied him
eligibility for certain kinds of credits to which, he asserts, he is entitled as a
matter of law.
          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 was not presented with this issue or any factual
information necessary to determine the issue, and this Court can only consider
such matters as were brought to the attention of the trial court.
                                       IV.
          The trial court granted the Department of Correction's motion to
dismiss pursuant to Rule 12.02 of the Tennessee Rules of Civil Procedure. A
Rule 12.02 motion admits the truth of all relevant and material averments
contained in a complaint, but asserts that such facts do not constitute a cause of
action. Once a trial court's grant of a Rule 12.02(6) motion has been appealed,
the appellate court must "take all allegations of fact in the plaintiff's complaint
as true, and review the lower courts' legal conclusions de novo with no
presumption of correctness." Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716
(Tenn. 1997) (citing Tenn. R. App. P. 13(d) and Owens v. Truckstops of America,
915 S.W.2d 420, 424 (Tenn.1996)). Mr. Hensley’s claims are based solely on
legal arguments. In light of the clear holdings in Stewart v. McWherter,
Henderson v. Lutche, and later cases considering the same arguments raised
herein by Mr. Hensley, and in light of the clear language of the statutes involved,
Mr. Hensley’s petition fails to state a cause of action.
                                        V.
          We hold that neither the criminal savings statute nor the Tennessee
Constitution mandate that the 1989 Sentencing Act be retroactively applied to
Mr. Hensley’s 1985 sentence. We further hold that Mr. Hensley is not entitled
to eligibility for the statutorily created sentence reduction credits of Tenn. Code




                                       -9-
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. Hensley.


                                            ______________________________
                                            PATRICIA J. COTTRELL, JUDGE


CONCUR:

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


______________________________________
WILLIAM C. KOCH, JUDGE




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