Christopher Johnson v.Tennessee Department of Correction - Concurring

CHRISTOPHER JOHNSON, )
)
Petitioner/Appellant, )
) Appeal No.
) 01-A-01-9602-CH-00064
VS. )
) Davidson Chancery
) No. 95-2065-II
TENNESSEE DEPARTMENT OF )
CORRECTION, )
)
FILED
Respondent/Appellee. )
August 7, 1996
COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
MIDDLE SECTION AT NASHVILLE Appellate Court Clerk
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR
CHRISTOPHER JOHNSON
2514 Dodson Avenue
Chattanooga, Tennessee 37406
Pro Se/Petitioner/Appellant
CHARLES W. BURSON
Attorney General and Reporter
PATRICIA C. KUSSMANN
Assistant Attorney General
404 James Robertson Parkway
Suite 2000
Nashville, Tennessee 37243
Attorney for Respondent/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
KOCH, J.
OPINION
A convicted burglar in the custody of the Department of Correction filed
a petition with the Chancery Court of Davidson County for an order directing the
Department to award him additional credits against his sentence for time spent in jail
before and after trial, and for sentence reduction credits he allegedly earned during
the same period of incarceration. The Chancellor found that Mr. Johnson had already
received all the credits to which he was entitled. We affirm.
I.
Christopher Johnson was arrested for burglary on September 21, 1984.
He was tried and convicted of first degree burglary in the court of Judge Joseph
DiRisio, and was sentenced to fifteen years imprisonment on October 15, 1986.
Following a subsequent trial in the court of Judge Douglas Meyer, the jury found him
guilty of another charge of second degree burglary, and on May 12, 1987 a ten year
sentence was imposed on him for that offense, to be served consecutively to his
fifteen year sentence, resulting in a total effective sentence of twenty-five years. Mr.
Johnson was unable to post bond, and he remained in the Hamilton County Jail
throughout his two trials and convictions, until he was transferred to the penitentiary
on May 3, 1988.
Judge Meyers’ judgment recited that the appellant would be allowed jail
credit “from and after September 22, 1984.” When Mr. Johnson began serving his
time in the penitentiary, he received 1,321 days of pretrial jail credits, which the
Department of Correction applied towards his initial fifteen year sentence.
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Mr. Johnson argues that he was entitled to receive credit against both
sentences for the time he spent in jail, on the ground that he was entitled to receive
such credits on his first sentence under Tenn. Code Ann. § 40-23-101(b), and that
additionally the provision for jail credit on Mr. Johnson’s second sentence became
binding on the Department of Correction once Judge Meyers’ judgment became final,
whether any part of that judgment was erroneous or not.
Tenn. Code Ann. § 40-23-101(b) reads in relevant part:
The trial court shall, at the time the sentence is imposed and
the defendant committed to jail, the workhouse, or the state
penitentiary for imprisonment, render the judgment of the
court so as to allow the defendant credit on his sentence for
any period of time for which he was committed and held in
the city jail . . . pending his arraignment and trial. The
defendant shall also receive credit on his sentence for the
time he served in the jail, workhouse or penitentiary
subsequent to any conviction arising out of the original
offense for which he was tried.
If we were to accept Mr. Johnson’s ingenious argument, he would
receive two days of penitentiary credit for each day spent in the Hamilton County Jail.
However, the above-quoted statute was not enacted to create a greater benefit for
those who face multiple trials than for those who are only subject to a single trial. As
the Court of Criminal Appeals has stated:
The purpose of the statute was to provide jail time credit prior
and subsequently to conviction for indigents unable to make
bond. The legislature in its wisdom recognized an injustice
between the person of means who could make bond and the
person who could not and had to languish in jail.” State v.
Abernathy, 649 S.W.2d 285, 286 (Tenn. Cr. App. 1983).
We therefore find that Mr. Johnson received all the benefit the statute
entitled him to when his penitentiary time was reduced day for day by his time in jail.
If the judgment in the second trial could be interpreted to allow Mr.
Johnson to apply the same jail time twice to reduce two consecutive sentences (and
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we are not convinced that it does), then Judge Meyers is entitled to correct the
judgment for illegality, even though it has become final, because it has contravened
the terms of Tenn. Code Ann. § 40-23-101(b). See State v. Burkhart, 566 S.W.2d 871(Tenn. 1978).
II.
The appellant also argues that he did not receive sentence reduction
credits that he was entitled to for the time he spent in jail after his conviction, prior to
his transfer to State custody. While Mr. Johnson notes that the chancellor incorrectly
stated that he was seeking sentence reduction credits for “pretrial jail time,” when he
was actually seeking such credits for post-conviction jail time, this error does not affect
the correctness of the chancery court’s determination that he was not entitled to the
relief he sought.
Tenn. Code Ann. § 41-21-236 enables inmates committed to the
custody of the Department of Correction to receive sentence reduction credits for
good institutional behavior. An amendment to that statute added a section that
extended the same sentence reduction privileges for the time that a convicted felon
was incarcerated prior to sentencing (Acts 1989, Ch. 42, § 2).
However that section was enacted after Mr. Johnson was transferred to
the penitentiary, and the amended section contains no suggestion that sentence
reduction credits for pre-sentencing jail time was to be awarded retroactively. As our
Supreme Court has said, “A law will not be given a retrospective operation, unless that
intention has been manifested by the most clear and unequivocal expression.”
Henderson v. Ford, 488 S.W.2d 720, 721 (Tenn. 1972), quoting Jennings v. Jennings,
165 Tenn. 295, 54 S.W.2d 961 (1932).
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III.
The judgment 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, JUDGE
CONCUR:
________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
________________________________
WILLIAM C. KOCH, JR., JUDGE
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