DAVID WILLIAMS,           )
                          )
    Petitioner/Appellant, )
                          )
                                      Appeal No.   FILED
                                      01-A-01-9801-CH-00010
v.                        )                        January 21, 1999
                          )           Davidson Chancery
TENNESSEE DEPARTMENT OF )             No. 97-2523-I Cecil W. Crowson
CORRECTION,               )                      Appellate Court Clerk
                          )
    Respondent/Appellee.  )



                 COURT OF APPEALS OF TENNESSEE


 APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

                     AT NASHVILLE, TENNESSEE


    THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR




DAVID J. WILLIAMS, Pro Se
#093823 NECX POB 5000
Mountain City, Tennessee 37683



JOHN KNOX WALKUP
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

MICHAEL L. HAYNIE
Assistant Attorney General
Civil Rights and Claims Division
425 Fifth Avenue North
Second Floor, Cordell Hull Building
Nashville, Tennessee 37243-0488
      ATTORNEYS FOR RESPONDENT/APPELLEE



                     AFFIRMED AND REMANDED


                                       WILLIAM B. CAIN, JUDGE
                                  OPINION
         Petitioner, David J. Williams, on July 29, 1997, filed in the Chancery
Court of Davidson County, Tennessee, a petition for judicial review and/or
declaratory judgment and/or common-law writ of certiorari.


         Acting pro se he asserts that he is being held unconstitutionally and
illegally by the defendant.


         He contends that he is entitled to immediate release because his
sentence structure is incorrect and illogical and further that he is entitled to
immediate release because he should be re-sentenced under the Criminal
Sentencing Reform Act of 1989, and because he is entitled to both retroactive
and cumulative sentence credits. He further asserts that it is a violation of
constitutional equal protection rights and constitutional freedom from cruel and
unusual punishment for him to be treated differently from individuals sentenced
under the Criminal Sentencing Reform Act of 1989.


         Petitioner was convicted of aggravated rape on July 22, 1981, the rape
having occurred on June 29, 1980 in Washington County. The defendant was
also convicted of rape on February 12, 1981 with this offense having occurred
in Carter County, Tennessee. The sentences ran consecutively. The aggravated
rape conviction was for a Class X felony.


         The learned chancellor addressed these issues by comprehensive
memorandum which is adopted as the opinion of the court in part:
                The petitioner, pro se, is an inmate in the custody of the
         Tennessee Department of Correction at the Northeast Correctional
         Center in Mountain City, Tennessee. He has filed a petition in which
         he seeks a declaratory judgment: 1) that his sentence as imposed by the
         courts is erroneous; 2) that he is entitled to be sentenced under the
         Criminal Sentencing Reform Act of 1989, Tenn. Code Ann. § 40-35-
         101 et seq.; 3) that he is entitled to certain sentence credits which have
         been unlawfully withheld; and 4) that he is entitled to be released
         immediately. Alternatively, the petitioner seeks review of the decision
         of the Department of Correction to deny his request for a declaratory
         order under the common law writ of certiorari.
                The petitioner committed the offense of aggravated rape on June
         29, 1980 and the offense of rape on February 12, 1981. On July 22,

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1981, the petitioner was sentenced to life imprisonment for the
Washington County Aggravated Rape conviction. This life sentence is
consecutive to the petitioner's 20 year sentence for his Carter County
Rape conviction. At the time of the petitioner's offense and at the time
of his conviction and sentencing, Aggravated Rape was a Class X
felony pursuant to Tenn. Code Ann. § 39-1-701 et seq. (repealed). On
November 1, 1989, the Class X felony law under which the petitioner
was sentenced was repealed and replaced by the Criminal Sentencing
Reform Act of 1989. Tenn. Code Ann. § 40-35-101 et seq. The
petitioner contends that under the 1989 Act, the maximum sentence he
would have received is 35 years at 30%.
        This matter is before the Court on motion of the respondent, by
and through the office of the Tennessee Attorney General, to dismiss the
petition pursuant to Rule 12.02 (6) of the Tennessee Rules of Civil
Procedure for failure to state a claim upon which relief may be granted.
        The petitioner filed with the Department of Correction a request
for a declaratory order that his sentences were imposed erroneously; that
he is entitled to have his Class X sentence reduced in accordance with
the above language; that he is entitled to the sentence credits on the
reduced sentence; and that he is entitled to be released immediately.
The department denied the petitioner's request.
        The petitioner first contends that his sentences were not properly
imposed and that as a result he was incorrectly granted custodial parole
from his 20-year sentence into his life sentence. He asserts that it was
"logistically impossible" for him to serve the Washington County
sentence consecutive to his Carter County sentence since the
Washington County offense was first in time. The Tennessee
Department of Correction is not responsible for the sentencing and
parole of inmates. The trial court in which an individual is convicted
is responsible for imposing judgment and sentence. Tenn. Code Ann.
§ 40-20-101 et seq. Only the Board of paroles has the authority to
determine an inmate's parole status. Tenn. Code Ann. § 40-28-103.
        The petitioner next contends that adjustment to his sentence is
mandated by the criminal savings statute which was codified at Tenn.
Code Ann. § 39-1-105 at the times of his offense, conviction and
sentencing. Tenn. Code Ann. § 39-1-105 provided:
        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 as 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.
The above provision was repealed in 1989 and reenacted as Tenn. Code
Ann. § 39-11-112.
        Tenn. Code Ann. § 39-1-105 did not apply to sentences which
were already received when a subsequent act or amendment provided
for a lesser penalty. In State ex rel. Stewart v. McWherter, 857 S.W.2d
875 (Tenn. Cr. App. 1992), the Court of Criminal Appeals noted: "By
their terms, the former and present savings statutes relate to active
prosecutions, not past cases for which sentences are being served."
(emphasis in original). Furthermore, the language of the Criminal
Sentencing Reform Act of 1989 is clear in that it applies only to those
offenses for which a person committed or was tried and sentenced after
November 1, 1989. Tenn. Code Ann. § 40-35-117. The statute does

                                   -3-
not provide for a reduction in the petitioner's sentence. Therefore, the
petitioner is not entitled to a declaratory judgment in this regard.
        The petitioner's claim that the Departmentt withheld sentence
credits to which he is lawfully entitled is likewise without merit. In his
petition, the petitioner claims that he is "entitled to earn, and should
have received the following sentence reduction credits at the same time
and retroactively as a matter of law":
        1. good and honor time under Tenn. Code Ann. §§ 41-
        21-212 and -214;
        2. good conduct sentence credits under Tenn. Code Ann.
            § 41-21-229;
        3. prisoner performance credits under Tenn. Code Ann.
            § 41-21-230; and
        4. inmate incentive credits under Tenn. Code Ann. § 41-
            21-228.
However, when the petitioner was convicted he was not eligible to earn
any kind of credits. Tenn. Code Ann. § 39-1-703 provided that Class
X felonies were not subject to reduction for good, honor or incentive or
other sentence credit of any sort. The sentence terminated only after
service of the entire sentence, day for day.
        In 1983, the law was amended to permit Class X felons to earn
Prisoner Performance Sentence Credits to reduce the sentence
expiration date, provided a waiver was signed by the inmate waiving his
right to serve his sentence under the law in effect at the time his offense
was committed. Ch. 400 Public Acts of 1983, § 3, 6-8. The petitioner
does not assert that he signed such a waiver.
        In 1985, Class X felons became eligible to earn Prison Sentence
Reduction credits to reduce sentence expiration and release eligibility,
provided a waiver is signed by the inmate. Tenn. Code Ann. § 41-21-
236. The statute specifically provides that "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). The petitioner was
not eligible to earn the § 41-21-236 sentence reduction credits until he
signed a waiver in 1989. Furthermore, as a Class X felon, the petitioner
is only eligible to earn the credits provided for in § 41-21-236. The
petitioner is not entitled to retroactive application of sentence credits as
he claims. See Henderson v. Lutche, 938 S.W.2d 428, 430. Nor is he
entitled to cumulative credits.
        The scope of review under the common law writ of certiorari
covers only an inquiry into whether the board exceeded its jurisdiction
or acted illegally, fraudulently, or arbitrarily. The manner in which a
decision is reached is subject to review. The correctness of the decision
is not. Powell v. Parole Eligibility Review Board, 879 S.W.2d 871
(Tenn. App. 1994).
        In support of his petition for a writ of certiorari, the petitioner
asserts that his right to equal protection under the Tennessee and United
States Constitutions is violated because he is treated differently than
those sentenced under the 1989 Act. The Stewart court also addressed
this equal protection argument. The court held that the legislature may
treat a particular class of persons differently so long as the classification
has a reasonable relationship to a legitimate state interest. The
petitioner forfeited his fundamental right to personal liberty when he
committed the offenses for which he was convicted and sentenced,
therefore, a lower level of scrutiny should apply in this case. However,
the Stewart court held that even if strict scrutiny is applied, the result
would not change because the purposes for distinguishing between the
two groups (those sentenced prior to November 1, 1989 and those


                                    -4-
          sentenced after the Criminal [S]entencing Reform Act of 1989 became
          effective) satisfy a compelling state interest and the means used are
          suitably tailored to accomplish those purposes. The Stewart court
          stated:
                  A primary purpose in the development and enactment of
                  the 1989 Sentencing Act was to address the pressing issue
                  of prison overcrowding through the creation of new
                  offense and sentencing standards. By limiting the Act's
                  application to persons who were not previously
                  sentenced, the legislature devised a partial solution to
                  prison overcrowding while avoiding the reopening of
                  cases in which persons have been validly sentenced
                  previously. Thus, the petitioner's right to equal protection
                  under the law has not been violated by his continued
                  incarceration under the original sentences. Id. at 877.
                  In further support of his petition for a writ of certiorari, the
          petitioner contends that the Department's refusal to reduce his sentence
          violated the Eighth Amendment's prohibition against cruel and unusual
          punishment. The enabling legislation for the 1989 Act limited its
          application to persons sentenced after November 1, 1989, while
          specifically excluding its application to cases in which penalties were
          already incurred. This language does not support the petitioner's
          suggestion that the legislature must have considered the prior law to be
          too severe. Simply because "a penalty is reduced by new legislation
          does not mean the sentence under the old law was disproportionate."
          State ex rel. William Jones v. McWherter, 199 Tenn. Crim. App. LEXIS
          875. This Court finds that the petitioner alleges no facts to indicate that
          the Department exceeded its jurisdiction or acted illegally. Therefore,
          a writ of certiorari is not appropriate on the facts asserted.



          The position of the petitioner is essentially a re-argument of State ex
rel. Stewart v. McWherter, 857 S.W.2d 875 (Tenn.Crim.App.1992). Stewart is
the law of Tennessee unless and until overturned either by the supreme court or
the general assembly.


          Petitioner has received all of the sentence credits to which he is
lawfully entitled.      None of the mathematical uncertainties evidenced in
Washington v. Dep't of Corrections, No. 01-A-01-9506-CH-00276, 1997 WL
272468 (Tenn.Ct. App.May 23, 1997) and Jones v. Reynolds, No. 01-A-01-
9510-CH-00484, 1997 WL 367661 (Tenn.Ct.App. July 2, 1997) are present in
this case. Issue is simply raised as to which sentence credits petitioner is entitled
and such has been adequately answered by the chancellor and is further answered
in Vernon Mauldin v. Tennessee Dep't of Corrections, No. 01-A-01-9801-CH-
00014 released by this court January 7, 1999.




                                             -5-
          Finally, Appellant claims that he was not fully informed of his rights
pertaining to the signing of a waiver pursuant to Tennessee Code Annotated
section 41-21-236(c)(3). He claims that such failure to inform was responsible
for his failure to execute this waiver until 1989. An inmate convicted of a Class
X felony is not entitled to begin earning sentence credits until the signing of such
a waiver. Henderson v. Lutche, 938 S.W.2d 428 (Tenn.Ct.App.1996).


          This issue was not raised in the trial court and may not be considered
on appeal. Irvin v. Binkley, 577 S.W.2d 677, 679 (Tenn.Ct.App.1979).


          The judgment of the trial court is in all respects affirmed with costs
assessed against Appellant. The case is remanded for collection of costs.




                                       ___________________________________
                                       WILLIAM B. CAIN, JUDGE


CONCUR:


______________________________________
BEN H. CANTRELL, PRES. JUDGE, M.S.


______________________________________
PATRICIA J. COTTRELL, JUDGE




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