Burch v. Tennessee Department of Correction , 1999 Tenn. App. LEXIS 121 ( 1999 )

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 Burch was sentenced was repealed, and was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.
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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
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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.
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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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