Kaylor v. Bradley

• Decision Date: 04 August 1995
• Parties: Wesley Vaughn KAYLOR, Plaintiff/Appellant, v. Christine BRADLEY, Commissioner, Tennessee Department of Correction, Ned McWherter, Governor, State of Tennessee, Defendants/Appellees.
• Court: Tennessee Court of Appeals

Page 728

912 S.W.2d 728

Wesley Vaughn KAYLOR, Plaintiff/Appellant, v. Christine BRADLEY, Commissioner, Tennessee Department of

Correction, Ned McWherter, Governor, State of

Tennessee, Defendants/Appellees.

Court of Appeals of Tennessee,

Middle Section, at Nashville.

Aug. 4, 1995.

Application for Permission to Appeal

Denied by Supreme Court

Nov. 27, 1995.

Wesley Vaughn Kaylor, Plaintiff/Appellant Pro Se.

Charles W. Burson, Attorney General and Reporter, Christina S. Shevalier, Assistant Attorney General, for Defendants/Appellees.

OPINION

KOCH, Judge.

This appeal involves an inmate's eligibility to be considered for early parole under the Tennessee Comprehensive Correction Improvement Act of 1985. After the Department of Correction informed him that he was no longer eligible for early parole, the inmate filed a petition in the Chancery Court for Davidson County alleging that the department's refusal to consider him for early parole violated the Ex Post Facto and Due Process Clauses of the state and federal constitutions. The trial court granted the Commissioner of Correction's Tenn.R.Civ.P. 12.02(6) motion to dismiss, and the inmate has appealed. We have determined that the department's conduct complied with all applicable constitutional requirements and, therefore, affirm the dismissal of the petition.

I.

Wesley Vaughn Kaylor was one of five persons who robbed and killed an elderly Rutherford County couple in October 1984. He later confessed to his involvement in the crimes and was convicted in May 1985 of two counts of first degree murder and one count of armed robbery. He received two life sentences for the murder convictions and a 20-year sentence for the armed robbery conviction, and the sentencing court determined that he should serve these sentences concurrently. ¹ He is now incarcerated at the Southeastern Tennessee State Regional Correctional Facility in Pikeville.

Mr. Kaylor alleged in his petition that the governor issued a declaration of an overcrowding emergency in 1986 in accordance with the Tennessee Comprehensive Correction Improvement Act of 1985. ² He also alleged that he was eligible to be considered for early parole under this declaration and that he "waived into" these new procedures. In addition, he alleged that his prison counselor informed him in December 1993 that his earliest parole date was May 25, 2000 but that he was later informed that his earliest parole date had been changed to 2010 because the governor had issued a directive in January 1994 excluding all inmates convicted of homicide from consideration for early parole.

Mr. Kaylor sought administrative redress from the department and, when he was unsuccessful, filed a pro se petition in the Chancery Court for Davidson County. The legal foundation of his petition was that the retroactive application of the governor's 1994 directive excluding inmates convicted of homicide from consideration for early release violated the Due Process and Ex Post Facto Clauses of the state and federal constitutions. The trial court found that Mr. Kaylor "has no constitutional right to a parole hearing" and granted the State's motion to dismiss.

II.

The sole purpose of a Tenn.R.Civ.P. 12.02(6) motion is to test the sufficiency of the complaint. Cook v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn.1994); Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn.Ct.App.1992). A complaint should be dismissed only when it contains no set of facts that would entitle the plaintiff to relief. Pemberton v. American Distilled Spirits Co., 664 S.W.2d 690, 691 (Tenn.1984); Fuerst v. Methodist Hosp. S., 566 S.W.2d 847, 848 (Tenn.1978); Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196, 198 (Tenn.Ct.App.1994).

Motions to dismiss for failure to state a claim are now rarely granted in light of the liberal pleading standards in the Tennessee Rules of Civil Procedure. Dobbs v. Guenther, 846 S.W.2d at 273. Reviewing courts must always look to the substance of the challenged complaint rather than its form. Usrey v. Lewis, 553 S.W.2d 612, 614 (Tenn.Ct.App.1977). Thus, when the adequacy of a complaint is tested by a Tenn.R.Civ.P. 12.02(6) motion, we must review the complaint's allegations liberally in favor of the plaintiff, taking all factual allegations therein as true. Cook v. Spinnaker's of Rivergate, Inc., 878 S.W.2d at 938; Lewis v. Allen, 698 S.W.2d 58, 59 (Tenn.1985). Like the trial court, we have concluded that Mr. Kaylor's petition fails to state a claim even under these relaxed standards.

III.

At the outset, we must identify the claims for relief in Mr. Kaylor's petition. Both the trial court and the attorney general appear to have construed the petition as simply challenging the constitutionality of the denial of a parole hearing. We do not construe the petition so narrowly. A fair reading of Mr. Kaylor's petition demonstrates that he sought to litigate two constitutional issues--first the retroactive application of the 1985 amendments to the parole board's regulations and second the retroactive application of the governor's 1994 directive excluding inmates convicted of homicide from consideration for early release. Both issues implicate the Ex Post Facto Clauses of the state and federal constitutions.

A.

Both the state and federal constitutions contain prohibitions against ex post facto laws. U.S. Const. art. I, § 10, cl. 1; Tenn. Const. art. I, § 11. The United States Supreme Court and the Tennessee Supreme Court have adopted complementary constructions of these provisions. In the words of Mr. Justice Chase, ex post facto laws include:

1st. Every law that makes an action done before the passing of the law; and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648, 650 (1798); followed in Miller v. State, 584 S.W.2d 758, 761 (Tenn.1979).

The United States Supreme Court has recently explained that the Ex Post Facto Clause is "aimed at laws that 'retroactively alter the definition of crimes or increase the punishment for criminal acts.' " California Dep't of Corrections v. Morales, --- U.S. ----, ----, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588 (1995). The Tennessee Supreme Court has likewise stated that the critical question in an ex post facto analysis is "whether the law changes the punishment to the defendant's disadvantage, or inflicts a greater punishment than the law allowed when the offense occurred." State v. Pearson, 858 S.W.2d 879, 883 (Tenn.1993).

Both the federal and state precedents establish that two elements must be present in order for a criminal or penal law to run afoul of the Ex Post Facto Clause. First, the law must apply retrospectively to events occurring before its enactment. Second, the law must disadvantage the offender affected by it. See, e.g., Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937). The law need not impair a vested right. As the United States Supreme Court has noted:

Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.

Weaver v. Graham, 450 U.S. 24, 30-31, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981).

The courts have resisted devising a formula or set of bright line rules for analyzing ex post facto claims. California Dep't of Corrections v. Morales, --- U.S. at ----, 115 S.Ct. at 1603. Determinations of these claims are usually made on a case-by-case basis. The outcome depends on the significance of the right involved and the significance of the impairment. In close questions, the decisions oftentimes hinge on such subtle factors as the court's sense of fair play and justice. People v. Smith, 34 Cal.3d 251, 193 Cal.Rptr. 692, 696, 667 P.2d 149, 153 (1983).

The State cannot, and indeed does not, argue that retroactive alterations of the criteria for parole eligibility cannot implicate ex post facto concerns. Eligibility for parole consideration is part of the law annexed to the crime when committed. Weaver v. Graham, 450 U.S. at 32-33, 101 S.Ct. at 966; Schwartz v. Muncy, 834 F.2d 396, 398 (4th Cir.1987); Burnside v. White, 760 F.2d 217, 220 (8th Cir.), cert. denied, 474 U.S. 1022, 106 S.Ct. 576, 88 L.Ed.2d 559 (1985); Lerner v. Gill, 751 F.2d 450, 454 (1st Cir.), cert. denied, 472 U.S. 1010, 105 S.Ct. 2709, 86 L.Ed.2d 724 (1985). Thus, the repeal of parole eligibility standards previously available to an inmate implicates the Ex Post Facto Clause if the effect of the repeal is to impose a greater or more severe punishment than was proscribed by law at the time of the offense. Warden v. Marrero, 417 U.S. 653, 663, 94 S.Ct. 2532, 2538, 41 L.Ed.2d 383 (1974).

B.

Mr. Kaylor's first claim involves a parole board regulation containing a presumption that inmates will be paroled when they first become eligible. Even though the regulation has been repealed, Mr. Kaylor asserts that the department's refusal to give him the benefit of the presumption in future parole hearings is contrary to the Ex Post Facto Clause. We disagree.

The mere possibility of parole is not a constitutionally protected liberty interest. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7-11, 99 S.Ct....