                                                                                           08/30/2017
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                          Assigned on Briefs January 4, 2017

     KEVIN TATE v. TENNESSEE DEPARTMENT OF CORRECTION

                Appeal from the Chancery Court for Davidson County
                  No. 15-1263-IV    Russell T. Perkins, Chancellor
                      ___________________________________

                           No. M2016-01611-COA-R3-CV
                       ___________________________________


Kevin Tate was convicted of a first degree murder that took place on March 22, 1993.
On November 22, 1995, he was sentenced to life in prison. In the current litigation, he
filed a petition for declaratory judgment asking the trial court to review his release
eligibility date as calculated by the Tennessee Department of Correction (TDOC).
Petitioner claimed that TDOC incorrectly calculated his release eligibility date, and, in
doing so, violated his rights under the ex post facto provisions of the state and federal
constitutions. The trial court found that TDOC correctly calculated his release eligibility
date. As a consequence, the court dismissed the petition. We modify the judgment of the
trial court by vacating the court’s statement that “as Mr. Tate is serving a sentence of life
for first degree murder, in no event can he become eligible for release prior to serving 25
years.” In all other respects, we affirm the trial court’s judgment.


      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                      Affirmed as Modified; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and ARNOLD B. GOLDIN, JJ., joined.

Kevin Tate, Mountain City, Tennessee, appellant, pro se.

Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor
General, and Jennifer L. Brenner, Senior Counsel, Office of the Attorney General Civil
Rights and Claims Division, Nashville, Tennessee, for the appellee, Tennessee
Department of Correction.
                                       OPINION

                                            I.

       The statutory provision pursuant to which Petitioner was sentenced is Tenn. Code
Ann. § 40-35-501(g) (1990). It was amended twice during the period of time between the
commission of the murder and date of sentencing. On March 22, 1993, the date on which
the offense was committed, the statute provided as follows:

             Release eligibility for each defendant receiving a life sentence
             for first degree murder shall occur after service of sixty
             percent (60%) of sixty (60) years less sentence credit earned
             and retained by the defendant.

In an amendment to the statute that became effective on July 1, 1993, some three months
after the date of the murder, the General Assembly amended this statute to provide, in
pertinent part, as follows:

             Release eligibility for each defendant receiving a sentence of
             imprisonment for life for first degree murder shall occur after
             service of sixty percent (60%) of sixty (60) years less
             sentence credits earned and retained by the defendant, but in
             no event shall a defendant sentenced to imprisonment for life
             be eligible for parole until the defendant has served a
             minimum of twenty-five (25) full calendar years of the
             sentence . . .       A defendant receiving a sentence of
             imprisonment for life for first degree murder shall be entitled
             to earn and retain sentence credits, but the credits shall not
             operate to make the defendant eligible for release prior to the
             service of twenty-five (25) full calendar years.

1993 Tenn. Pub. Acts Ch. 473. In 1995, the statute was again amended to provide as
follows:

             (i)(1) There shall be no release eligibility for a person
             committing an offense, on or after July 1, 1995, that is
             enumerated in subdivision (i)(2). The person shall serve one
             hundred percent (100%) of the sentence imposed by the court
             less sentence credits earned and retained. However, no
             sentence reduction credits . . . shall operate to reduce the
             sentence imposed by the court by more than fifteen percent
             (15%).

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             (2) The offenses to which subdivision (i)(1) applies are:

             (A) Murder in the first degree;

                                  *      *      *

1995 Tenn. Pub. Acts Ch. 492 (emphasis added). As can be seen, the Petitioner is not “a
person committing an offense, on or after July 1, 1995.” Id.

       On July 3, 2015, Petitioner asked TDOC to calculate his release eligibility date.
On August 3, 2015, TDOC advised him that his release eligibility date was January 9,
2025, based on sentence reduction credits he had earned and not lost. On October 20,
2015, Petitioner, acting pro se, filed his petition for declaratory judgment, alleging in
pertinent part as follows:

             That [release eligibility date calculated by TDOC] is incorrect
             being that under State law at the time that the petitioner
             caught the charge and the time that he was sentenced, if [sic]
             he was to have to [sic] serve 25 yrs.

                                  *      *      *

             State Law only requires the inmate to serve 25 years to be
             eligible for parole, however the law in which the petitioner
             was under at the time of the [commission] of the offense in
             1993, (see, T.C.A. § 40-35-501 (1993ed) leaves out the total
             time other than to say that a person is to serve 60% of 60 yrs.,
             which is 36 yrs. However the petitioner is get [sic] the
             benefit of both statutes.

       TDOC responded with an affidavit of its employee, Amber Phillips, a sentence
analyst, who explained as follows:

             [Petitioner] was convicted November 22, 1995. . . . He
             received a sentence of Life for First Degree Murder. The
             court granted pretrial jail credit of 966 days. In addition to
             the pretrial jail credit, this sentence also has a total of 256
             days of pretrial behavior credit applied in accordance with
             Tenn. Code Ann. §41-21-236.

             . . . In accordance with Tenn. Code Ann. §40-35-501, this
             sentence was originally calculated with a release eligibility
             date set at 36 years which is 60% of 60 years with no
                                         -3-
              expiration date if imposed under the Sentence Reform Act of
              1989.

              The Sentencing Act of 1993 became effective for offenses
              committed on or after July 1, 1993 and does not apply to
              [Petitioner] due to his offense date of March 22, 1993.

              To date, [Petitioner] has earned (and lost) Prisoner Sentence
              Reduction Credits (PSRC) that have allowed the release
              eligibility date on this sentence to reduce to the current date
              of September 19, 2024. PSRC are awarded in accordance
              with Tenn. Code Ann. §41-21-236. Total PSRC applied to
              reduce this sentence to date are 1,398 days. He had earned a
              total of 1,488 and was ordered to lose 90 days in 2012 due to
              a class A disciplinary infraction.

(Paragraph numbering in original omitted.)

        The trial court dismissed the petition in an order containing findings of fact. The
court’s order closely tracked the statements in Ms. Phillips’ affidavit. The trial court held
that there was no error in TDOC’s calculation, and no ex post facto violation. The trial
court’s final judgment in this case correctly states that “[t]he Sentencing Act of 1993 . . .
applies to offenses committed on or after July 1, 1993, and Mr. Tate’s offense date is
March 22, 1993[;]” and the judgment correctly recites that Petitioner “was never eligible
for a sentence calculation under the Sentencing Act of 1993.” However, the trial court
also quoted Tenn. Code Ann. § 40-35-401 as amended in 1993, and stated that “as
[Petitioner] is serving a sentence of life for first degree murder, in no event can he
become eligible for release prior to serving 25 years.” As will be shown below, this
statement by the trial court is incorrect.

                                             II.

       The issue presented is whether the trial court erred in holding that TDOC correctly
calculated Petitioner’s release eligibility date.

                                             III.

       There are no disputes of fact in this case. Since the case involves only a question
of law, our review is “de novo with no presumption of correctness.” In re Angela E.,
303 S.W.3d 240, 246 (Tenn. 2010).



                                            -4-
                                             IV.

                                              A.

        The controlling and dispositive principle in this case has been stated by the
Supreme Court as follows: “[g]enerally, a criminal offender must be sentenced pursuant
to the statute in effect at the time of the offense.” State v. Smith, 893 S.W.2d 908, 919
(Tenn. 1994); accord State v. Brimmer, 876 S.W.2d 75, 82 (Tenn. 1994) (“The trial court
correctly instructed the sentencing law in effect at the time the murder was committed”);
State v. Blackmon, 78 S.W.3d 322, 336 (Tenn. Crim. App. 2001) (Because application of
the 1995 law would affect a substantial right of the Appellant, thus implicating ex post
facto constitutional provisions, the trial court was required to apply the law in effect on
the date the offense was committed”). Thus, as TDOC has correctly maintained
throughout this litigation, the pre-July 1, 1993 version of Tenn. Code Ann. § 40-35-
501(g) applies to Petitioner. Under that statute, his release eligibility date “shall occur
after service of sixty percent (60%) of sixty (60) years [i.e., 36 years] less sentence credit
earned and retained by” him. The July 1, 1993 amendment is not pertinent to the
calculation of his sentence length or his release eligibility date.

        Ironically, if the 1993 amendment did apply to him, which it clearly does not, it
would likely have had no effect on his release eligibility date, but it well might have
harmed, rather than helped, him. As can be seen from his petition, Petitioner
misunderstands the effect of the 25-year mandatory minimum term prescribed by the July
1, 1993 amendment. He alleges that “State Law only requires the inmate to serve 25
years to be eligible for parole.” This allegation is not correct. Both versions of the
statute set a release eligibility date of 36 years less sentence credits earned. Speaking
hypothetically, under the pre-July 1, 1993 version of the statute, it is possible that an
inmate such as Petitioner could have a release eligibility date that is less than 25 years, if
he earned and retained more than eleven years’ worth of sentence credits. That is no
longer true for a person convicted of first degree murder after July 1, 1993. He or she
must serve a mandatory minimum of 25 years, regardless of sentence credits.1 Thus, the
trial court’s citation of the amended statute in its order, and its statement that “in no event
can [Petitioner] become eligible for release prior to serving 25 years,” is erroneous. The
statement did not impact TDOC’s calculation of his release eligibility date, however,
which TDOC correctly calculated under the pre-July 1, 1993 version of the statute.



       1
          Of course, the 1995 amendment to Tenn. Code Ann. § 40-35-501, quoted above, which
has no bearing on this case, imposes a significantly harsher punishment for those convicted of
first degree murder and given a life sentence for a crime committed on or after July 1, 1995.
                                             -5-
                                             B.

        In State v. Pruitt, 510 S.W.3d 398, 411 (Tenn. 2016), the Supreme Court
discussed at length the ex post facto clauses of the Tennessee and United States
Constitutions. Included in the categories of laws prohibited under these provisions is
“[e]very law that changes the punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed.” Id., quoting Calder v. Bull, 3 U.S. 386, 390
(1798). As has been discussed above, no law or procedure has been applied to change
Petitioner’s incarceration period for the crime he committed. His sentence, and release
eligibility date, have consistently been calculated under the law as it existed at the time he
committed the offense. Consequently, there is no ex post facto violation in his case.

                                             V.

        The judgment of the trial court is modified to vacate the trial court’s holding that
“as Mr. Tate is serving a sentence of life for first degree murder, in no event can he
become eligible for release prior to serving 25 years.” As modified, the judgment of the
trial court is affirmed. Costs on appeal are assessed to the appellant, Kevin Tate. This
case is remanded for enforcement of the trial court’s judgment and for collection of costs
assessed below.




                                                   _______________________________
                                                   CHARLES D. SUSANO, JR., JUDGE




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