                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     May 24, 2001 Session

   MICHAEL PINE v. TENNESSEE DEPARTMENT OF CORRECTION

                    Appeal from the Chancery Court for Davidson County
                      No. 00-1753-I   Irvin H. Kilcrease, Chancellor



                   No. M2000-02410-COA-R3-CV - Filed February 1, 2002


This is a declaratory judgment action by an inmate regarding his eligibility for sentence reduction
credits. The inmate pled guilty to raping a child. A Tennessee statute requires that anyone convicted
of the rape of a child must serve his entire sentence. Notwithstanding this, the inmate was sentenced
as an especially mitigated offender eligible for parole after serving twenty percent of his sentence.
The inmate filed a petition for declaratory judgment, arguing that he should be eligible to earn
sentence reduction credits because he was sentenced as a mitigated offender. The trial court held
that the inmate was not eligible for sentence reduction credits. We affirm, finding that the inmate’s
sentencing as a mitigated offender did not alter the statutory requirement that he serve his entire
sentence.

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

HOLLY KIRBY LILLARD , J., delivered the opinion of the court, in which FRANK CRAWFORD , P.J.,
W.S., and ALAN E. HIGHERS , J., joined.

Michael Pine, Clifton, Tennessee, appellant, pro se.

Dawn M. Jordan, Nashville, Tennessee, for the appellee, Tennessee Department of Correction.

                                             OPINION

        This is a declaratory judgment action regarding an inmate’s eligibility for sentence reduction
credits. The petition for declaratory judgment was filed by Petitioner/Appellant Michael Pine
(“Pine”), who is currently an inmate at a correctional facility administered by Respondent/Appellee
Tennessee Department of Correction (“Department of Correction”).

        In December 1994, Pine pled guilty and was sentenced to a term of 13 years 6 months within
the Department of Correction. Pine pled guilty to the offense of Rape of a Child pursuant to
Tennessee Code Annotated § 39-13-522. Tennessee Code Annotated § 39-13-523(c) provides that
a person convicted as a child rapist under Tennessee Code Annotated § 39-13-522 is not entitled to
parole eligibility status until he has served the entire sentence imposed by the court. The statute
states further that a person convicted as a child rapist is not entitled to receive any sentence reduction
credits for which he might otherwise be eligible. Tenn. Code. Ann. § 39-13-523(b).
Notwithstanding the sentencing requirements of Tennessee Code Annotated § 39-13-523(c), the trial
court sentenced Pine as an especially mitigated offender with parole eligibility after serving twenty
percent of his sentence.1 However, the judgment order entered by the trial court did not address
Pine’s eligibility for sentence reduction credits.

        Although Pine alleges that the Department of Correction initially awarded him sentence
reduction credits, after his first parole hearing the Department of Correction removed his eligibility
to earn further sentence reduction credits and revoked any previously issued credits. Pine requested
an administrative declaratory order to reinstate his eligibility to earn sentence reduction credits in
accordance with Tennessee Code Annotated § 41-21-236.2 After this request was denied, Pine filed
a Petition for Declaratory Judgment with the Davidson County Chancery Court. In response, the
Department of Correction filed a motion to dismiss for failure to state a claim or, alternatively, a
motion for summary judgment. The trial court granted the Department of Correction’s motion for
summary judgment, finding that the mandates of Tennessee Code Annotated § 39-13-523(b) applied
to Pine’s plea agreement. From this order, Pine now appeals.

       On appeal, Pine argues that the trial court erred in granting the Department’s motion for
summary judgment because the requirements of Tennessee Code Annotated § 39-13-523(b) are
inapplicable pursuant to the terms of his plea agreement. He contends that his sentencing as an
especially mitigated offender makes him eligible to earn sentence reduction credits under Tennessee
Code Annotated § 41-21-236.

        We review the trial court’s grant of summary judgment de novo with no presumption of
correctness. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997) (quoting Bain v. Wells,
936 S.W.2d 618, 622 (Tenn. 1997)). The material facts of this case are essentially undisputed and,
therefore, the only question is whether Department of Correction was entitled to summary judgment
as a matter of law. See Tenn. R. Civ. P. 56.04.

        Pine argues that his sentencing as an especially mitigated offender establishes his eligibility
to earn sentence reduction credits pursuant to Tennessee Code Annotated § 41-21-236. A similar
issue was addressed in Rutherford v. Campbell, No. M1999-02789-COA-R3-CV, 2000 WL 679235
(Tenn. Ct. App. May 25, 2000). In Rutherford, as in this case, a petition for declaratory judgment
was filed by an inmate who pled guilty to child rape, asserting the inmate’s eligibility for sentence
reduction credits. Rutherford, 2000 WL 679235 at *1. In Rutherford, as in this case, the judgment
order said nothing about the inmate’s eligibility for sentence reduction credits. Id. This Court noted

         1
           Tennessee Code Annotated § 40-35-109 provides that a court may find a defend ant to be an especially
mitigated offend er if he has n o prior felo ny co nvictions and there are m itigating factors bu t no enh ancem ent factors.

         2
           Tennessee Code Annotated § 41-21-236(a)(2) provides that “[e]ach inmate who exhibits good institutional
behavior and/or who exhibits satisfactory performance within a program may be awarded time credits toward the
sentence imposed.”

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that the “availability of sentence reduction credits for child rapists was specifically proscribed by the
legislature”in Tennessee Code Annotated § 39-12-523. Id. at *2. This Court affirmed the trial
court’s ruling that the inmate was not eligible for sentence reduction credits.

        Pine distinguishes Rutherford in that, unlike Rutherford, Pine was sentenced as an
especially mitigated offender as part of his plea agreement. The statute governing the sentencing
of especially mitigated offenders, Tennessee Code Annotated § 40-35-109, does not make such
offenders automatically eligible for sentence reductions credits. The judgment order is silent as to
Pine’s eligibility for sentence reduction credits. See Rutherford, 2000 WL 679235 at *2. Under all
of these circumstances, we must hold that Pine is not eligible for sentence reduction credits. This
holding pretermits any other issues raised.

        The decision of the trial court is affirmed. Costs are taxed against the appellant, Michael
Pine, and his surety, for which execution may issue if necessary.




                                                        ___________________________________
                                                        HOLLY KIRBY LILLARD, JUDGE




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