             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                    FILED
                                                     February 24, 1999

ROY A. BURCH,                         )             Cecil Crowson, Jr.
                                      )            Appellate Court Clerk
       Petitioner/Appellant,          )
                                      )   Appeal No.
                                      )   01-A-01-9712-CH-00702
VS.                                   )
                                      )   Davidson Chancery
                                      )   No. 97-2496-I
TENNESSEE DEPARTMENT OF               )
CORRECTION,                           )
                                      )
       Respondent/Appellee.           )


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

          THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR



ROY A. BURCH
Northeast Correctional Center
P. O. Box 5000
Mountain City, Tennessee 37683
       Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General & Reporter

PATRICIA C. KUSSMANN
Assistant Attorney General
425 Fifth Avenue North
Nashville, Tennessee 37243
       Attorney for Respondent/Appellee




                           AFFIRMED AND REMANDED




                                               BEN H. CANTRELL,
                                               PRESIDING JUDGE, M.S.


CONCUR:
KOCH, J.
CAIN, J.

                               OPINION
              An inmate sentenced to life imprisonment as a Class X habitual offender

filed a petition for declaratory judgment. He claimed that he was entitled to have his

sentence recalculated under a 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



              Roy Burch was convicted of aggravated rape and sentenced to life

imprisonment as a habitual criminal on October 25, 1989. On November 1, 1989, the

Class X felony law under which Mr. Burch was sentenced was repealed, and was

replaced by the Criminal Sentencing Reform Act of 1989, Tenn. Code Ann. § 40-35-

101 et seq. Under that Act, aggravated rape is classified as a Class A felony, and

carries with it possible sentences of from 15-25 years for a standard Range I offender,

all the way to 60 years for a career offender.



              On July 25, 1997, Mr. Burch filed a petition for a declaratory judgment

that he was entitled to be resentenced under the Criminal Sentencing Reform Act of

1989. 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. The trial court granted the

defendant’s motion on November 19, 1997. This appeal followed.



                         II. Tenn. Code Ann. § 39-1-105



              Mr. Burch 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 failure to treat him in the same manner as those

sentenced after November 1, 1989 is a violation of his constitutional equal protection

rights. With all due respect to Mr. Burch, both of those arguments have been

examined by our courts in earlier cases, and were found to be without merit.


                                         -2-
              We will focus our discussion on one of these cases, State ex rel Stewart

v. McWherter, 857 S.W.2d 875 (Tenn. Crim. App. 1992), because its arguments are

identical to those in the present case, and the facts are virtually identical, except for

the fact that Mr. Stewart’s crime was armed robbery, rather than rape, and he was

sentenced six years before the enactment of the Criminal Sentencing Reform Act of

1989, rather than six days before.



              Mr. Burch’s statutory argument is based upon Tenn. Code Ann. § 39-1-

105 (enacted 1968, repealed 1989). That statute read:

              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
              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 Stewart case, the court examined the admittedly complex

language of the statute above, and determined it to mean that only those who had not

been sentenced prior to the effective date of a law reducing a penalty for their crime

would receive the benefit of the more lenient law.           As the court noted, this

interpretation is consistent with the provision of the 1989 Sentencing Act which limits

its application to those who are sentenced after its effective date of November 1,

1989. Tenn. Code Ann. § 40-35-117.



                                III. Equal Protection



              The appellant contends that it is a violation of his equal protection rights

under the 14th Amendment of the U.S. Constitution, and under Article XI, Sec. 8 of

the Tennessee Constitution, to impose a different penalty upon him than upon an



                                          -3-
individual guilty of an identical crime, just because of his date of sentencing. Mr.

Burch 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).



              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. 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.



              We agree with this reasoning.

                                     -4-
              Mr. Burch notes that the Legislature has affirmed the importance of

reducing prison overcrowding, and argues that the appellee’s interpretation of the

Sentencing Reform Act of 1989 undermines the legislative intent. We find this

argument quite unpersuasive. Legitimate state interests are often balanced one by

another, and it is not always possible to serve one interest without undermining

another. The Legislature could theoretically solve the problem of prison overcrowding

at one stroke by releasing all prisoners, but this would create more and greater

problems for society. By enacting the Sentencing Reform Act of 1989, the Legislature

crafted a partial solution to prison overcrowding, while at the same time preserving the

deterrent effect that arises from allowing sentences that have already been imposed

to remain unchanged.



                                          IV.



       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.



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



CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE




_____________________________
WILLIAM B. CAIN, JUDGE




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