Assigned on Briefs September 17, 2014
Appeal from the Chancery Court for Davidson County No. 130470I Claudia C. Bonnyman, Chancellor
Roger Jamal Myrick, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Joe Whalen, Acting Solicitor General; and Lee Pope, Assistant Attorney General; for the appellee, State of Tennessee.
Andy D. Bennett, J., delivered the opinion of the court, in which Richard H. Dinkins, and W. Neal McBrayer, JJ., joined.
Andy D. Bennett, Judge
Roger Jamal Myrick was convicted of second degree murder for an offense that occurred on January 19, 2007, and was ordered to serve his entire sixteen-year sentence. He is currently an inmate in the custody of the TDOC.
On February 17, 2013, Mr. Myrick asked the TDOC to find he was eligible for parole and requested a parole hearing date. The TDOC denied his request on March 11, 2013. Mr. Myrick then filed a petition for declaratory judgment with the trial court on April 1, 2013. He sought an order from the court directing the TDOC to grant him a parole hearing based on Tenn. Code Ann. §§ 40-28-115(b)(1) and -117(b). He claimed that, pursuant to section 115(b)(1), he was eligible for parole in 2012, and pursuant to section 117(b), he was entitled to "mandatory parole."
The State filed a motion to dismiss for failure to state a claim based on Tenn. Code Ann. § 40-35-501. Mr. Myrick filed a response and motion for summary judgment on July 26, 2013. The trial court granted the State's motion on September 27, 2013. In its decision, the court explained the evolution of Tennessee parole law and why Mr. Myrick was not eligible for parole:
Since the 1970's when "mandatory" parole was established, there have been two major revisions to Tennessee's sentencing and parole laws, the first in 1982 and the second in 1989. However "the Tennessee General Assembly purposefully did not repeal" portions of the old parole law "because it continued to govern the sentences and release of persons who committed crimes prior to July 1, 1982." Hickman v. [Tenn.] Bd. of Paroles, 78 S.W.3d 285, 290 (Tenn. Ct. App. 2001). Accordingly, the statutes to which the Petitioner cites . . . are still valid statutes relevant to inmates convicted of committing crimes prior to July 1, 1982.
In this case, the pleadings reveal that the Petitioner was convicted of murder in the second degree for an offence that occurred on January 19, 2007. Accordingly, the two statutes upon which the Petitioner relies, Tenn. Code Ann. §§ 40-28-115 and -117, do not apply. Rather, "[a]ll persons who commit crimes on or after November 1, 1989, shall be tried and sentenced under the provisions of this chapter, " i.e., Chapter 35 of Title 40. Tenn. Code Ann. § 40-35-117(a). Accordingly, Tenn. Code Ann. § 40-35-101 et. seq. applies to the Petitioner.
Tenn. Code Ann. § 40-35-501(i)(1) mandates that "[t]here shall be no release eligibility for a person committing an offense, on or after July 1, 1995, that is enumerated in subdivision (i)(2). The person shall serve one hundred percent (100%) of the sentence imposed by the court less sentence credits earned and retained." Enumerated in subsection (i)(2) is the offense of "Murder in the second degree." Tenn. Code Ann. § 40-35-501(i)(2)(B). Accordingly, the Petitioner, Mr. Myrick, must serve 100% of his sentence and is not entitled to a parole eligibility date.
Mr. Myrick appeals from the trial court's ruling and asks this Court to: reverse the trial court's decision and remand the case, order the trial court to assign "'conflict' free counsel" and conduct an evidentiary hearing, order the Board of Probation and Parole ("the Board") to issue a parole hearing for ...