The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 22, 2002
MARK A. PERCY v. TENNESSEE DEPARTMENT OF CORRECTION
Appeal from the Chancery Court for Davidson County
No. 00-2287-III Ellen Hobbs Lyle, Chancellor
No. M2001-01629-COA-R3-CV - Filed February 26, 2003
This appeal involves a dispute between a multiple rapist and the Tennessee Department of
Correction regarding the prisoner’s sentence expiration date. The prisoner filed a petition for a
declaratory order in the Chancery Court for Davidson County asserting that the Department had
misclassified him and that he was eligible to be released because his sentence had expired. The
Department responded with a motion for summary judgment supported by an affidavit of a
sentencing technician asserting that the prisoner had been correctly classified and that his sentence
had not expired. The trial court granted the summary judgment and dismissed the petition. We find
that the trial court reached the correct result, and, therefore, we affirm the judgment dismissing the
prisoner’s petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.
Mark A. Percy, Pikeville, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter, and Arthur Crownover, II, for the appellee,
Tennessee Department of Correction.
OPINION
I.
On the evening of December 9, 1992, Mark A. Percy grabbed a female pedestrian as she was
walking in the vicinity of the Chattanooga Choo Choo and dragged her into an alley where he
performed oral sex on her and then engaged in non-consensual sexual intercourse. The pedestrian
was able to escape briefly, but Mr. Percy recaptured her and dragged her across the street into
another alley where he raped her again. The pedestrian’s ordeal ended when a motorist drove into
the alley and shined his headlights on Mr. Percy. Mr. Percy fled the scene.
Mr. Percy was eventually captured and was indicted on one count of especially aggravated
kidnaping and four counts of aggravated rape. In May 1995, he and the Hamilton County District
Attorney entered into a plea bargain agreement. In return for the State’s agreement (1) to reduce the
especially aggravated kidnaping charge to aggravated kidnaping, (2) to reduce the aggravated rape
charges to rape, and (3) to retire one of the rape charges,1 Mr. Percy agreed to plead guilty to two of
the rape charges and to plead nolo contendere to the remaining rape charge and to the aggravated
kidnaping charge.
Convictions on the three rape charges would have rendered Mr. Percy a “multiple rapist” as
a matter of law.2 Multiple rapists must serve their “entire sentence . . . undiminished by any sentence
reduction credits . . .,” and are not eligible to be released “prior to service of the entire sentence
imposed by the court.” Tenn. Code Ann. § 39-13-523(b), (d) (Supp. 2002). Neither the prosecutor
nor the sentencing judge have authority to deviate from these clear statutory requirements. However,
for reasons not evident in this record, both the assistant district attorney general prosecuting the case
and the sentencing court agreed that Mr. Percy would be classified as a Standard Range I offender
and that he would be eligible to be considered for parole after serving thirty percent of his sentence.
During the Tenn. R. Crim. P. 11 colloquy, the sentencing court satisfied itself that Mr. Percy
understood that “if I accept your plea, these [charges] will become convictions; you will have four
eight-year sentences running concurrently for a total of eight years.” The trial court also informed
Mr. Percy that he would “have to serve 30 percent of the sentence before you’re eligible for parole
or any other program they might have.” Thereafter, the court sentenced Mr. Percy to serve four
concurrent eight-year sentences “as a Range I offender.” After the trial court pronounced sentence,
Mr. Percy asked, “That is a total of eight years I have to do; right?” The trial court responded, “Total
of eight years, right. Eight and eight and eight and eight add up to eight years.” The judgment forms
signed by the sentencing court in May 1995 state that Mr. Percy was a “Standard 30% Range I”
offender and that he is not a multiple rapist.
Mr. Percy was clearly a multiple rapist. Accordingly, upon his arrival, the Department of
Correction classified him as a multiple rapist who would be required to serve his entire eight-year
sentence without accruing sentence reduction credits. Even though this classification decision was
entirely consistent with Tenn. Code Ann. § 39-13-523, it was at odds with the judgment documents
signed by the sentencing court in May 1995.
Approximately three years after Mr. Percy was placed in the Department’s custody, the
Commissioner of Correction requested the Attorney General and Reporter to render a formal opinion
regarding the Department’s practice of declining to certify a multiple rapist as eligible for parole
1
The assistant district attorney representing the State conced ed to the sentencing court that “we can only
establish three counts of rape instead of four. W e’re not sure what the extra indictment might have been based on, Your
Honor.”
2
Tenn. Code Ann. § 39-13-523(a)(2) (Supp. 2002) defines “multiple rapist” as “a person convicted two (2) or
more times of violating the provisions of § 39-13-502 [aggravated rape] or § 39-13-503 [rape], or a person convicted
at least one (1) time of violating § 39-13-502, and at least one (1) time of § 39-13-503.
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consideration even though the judgment document signed by the sentencing court provided to the
contrary. The Attorney General, citing State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978),
concluded that a judgment, even a judgment entered as a part of a plea bargain agreement, granting
a multiple rapist the right to be considered for release after serving thirty percent of his or her
sentence was void and a nullity because it was inconsistent with Tenn. Code Ann. § 39-13-523(b).
However, the Attorney General also opined that the Department lacked authority to alter a judgment
entered by the trial court even if it is illegal and, therefore, that the Department must certify the
multiple rapist as parole eligible after serving thirty percent of his or her sentence until the sentence
is judicially corrected. Op. Tenn. Att’y Gen. 98-126, 1998 WL 423988 (July 20, 1998).3 The
Attorney General further advised the Department:
But, since the judgment provides for an illegal sentence, the
Department should move to correct the judgment in the trial
[sentencing] court, either through its counsel or through the local
District Attorney General’s office. If the trial court refuses to correct
the illegal sentence, then an appeal [to the Tennessee Court of
Criminal Appeals] should be pursued.
In March 1999, the Department notified the sentencing court in writing that it would be
required to classify Mr. Percy as being eligible for release consideration after serving thirty percent
of his sentence unless the sentencing court corrected the judgment. On June 1, 1999, after the
sentencing court did not respond to its letter,4 the Department notified Mr. Percy that it had
recalculated his sentences to reflect the judgments of the sentencing court.5
On April 5, 2000, Mr. Percy filed a “petition fro [sic] declaratory order” with the Department
asserting that the manner in which his sentence had been calculated “depriveds [sic] the petitioner
from the benefits of his plea agreement.” On July 21, 2000, after receiving no response from the
Department, he filed a petition for a declaratory judgment in the Chancery Court for Davidson
County again asserting that the Department’s calculation of his sentence deprived him of the benefits
of his plea bargain agreement.
The Department, as has become its custom, moved to dismiss Mr. Percy’s petition for lack
of subject matter jurisdiction. The legal basis for this motion is not altogether clear because the
3
The Attorney General later reaffirmed its opinion. Op. Tenn. Att’y Gen. 99-197, 1999 W L 10 129 76 (Sept.
28, 1 999 ).
4
The sentencing court’s chief deputy clerk later insiste d that it had no record of receiving the D epartment’s
letter.
5
This record contains no explanation for the Department’s failure to pursue correcting Mr. Percy’s illegal
sentence as envisioned in Op. Tenn. Att’y Gen. 98-121.
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Department’s motion does not comply with Tenn. R. Civ. P. 7.02(1)’s specificity requirements.6
However, we presume that the motion was premised on Tenn. Code Ann. § 4-5-225(b) (1998) which
conditions the right to seek a declaratory judgment on first petitioning the agency for a declaratory
order.7 The trial court first granted the Department’s motion but then reversed itself after the
Department and the Attorney General conceded that Mr. Percy’s petition for a declaratory order had
been somehow overlooked due to a “filing error.”
Eventually, the Department filed a motion for summary judgment simply declaring that it had
“correctly calculated the Petitioner’s sentence in conformity with the sentencing judgments.” The
Department supported its motion with an affidavit by the Manager of Sentence Information Services
stating that the Board of Paroles had declined to parole Mr. Percy and that his sentence expiration
date was February 28, 2003. The manager also stated that Mr. Percy had been credited with 1,056
days of sentence reduction credits on his sentences for the aggravated kidnaping and one of his rape
convictions, but that he had not received sentence credits on his remaining two rape convictions
because these had been “flagged as multiple rape sentences.” After determining that Mr. Percy’s
response to the Department’s summary judgment motion did not effectively dispute the facts in the
manager’s affidavit, the trial court granted the Department’s motion and dismissed Mr. Percy’s
application.
II.
The standards for reviewing summary judgments on appeal are well-settled. Summary
judgments are proper in virtually any civil case that can be resolved on the basis of legal issues alone.
Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993);
Church v. Perales, 39 S.W.3d 149, 156 (Tenn. Ct. App. 2000). They are not, however, appropriate
when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04. Thus, a summary
judgment should be granted only when the undisputed facts, and the inferences reasonably drawn
from the undisputed facts, support one conclusion – that the party seeking the summary judgment
is entitled to a judgment as a matter of law. Pero’s Steak and Spaghetti House v. Lee, 90 S.W.3d
614, 620 (Tenn. 2002); Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001).
6
Tenn. R. C iv. P. 7.02(1) req uires motions to "state with particularity the grounds therefor." As has become
its custom, the Office of the Attorney General relies on a separate memorandum of law to explain why the trial court
lacked subject matter jurisdiction. We have repeatedly reminded the Office of the Attorney General that including the
grounds for a motion in a separate memorandum of law does not satisfy the specificity requirements in Tenn. R. Civ. P.
7.02(1) because these memoranda, by operation of T enn. R. A pp. P . 24, d o not become part of the appellate record.
See, e.g., Hickm an v. Tennessee Bd. of Paroles, 78 S .W .3d 2 85, 2 87 (Tenn. Ct. A pp. 2 001 ); Pendleton v. M ills, 73
S.W .3d 1 15, 1 19 n. 7 (T enn. C t. App . 200 1); Robinso n v. Clement, 65 S.W .3d 632, 635 n. 2 (Tenn. Ct. App. 2001 ).
7
The exhaustion req uirement in T enn. Code Ann. § 4-5-22 5(b) is directed more tow ard the petitioner’s standing,
rather than the trial court’s subject matter jurisdiction. T enn. Code Ann. § 4-5-225(a) clearly vests the trial court with
subject matter jurisdiction over petitions for declaratory judgments. Tenn. Code Ann. § 4-5-225(b) simply provides that
the trial court should not exercise its subject ma tter jurisdiction when asked to do so by persons who have not exhausted
their Tenn. C ode A nn. § 4-5-22 4 remedies.
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The party seeking a summary judgment bears the burden of demonstrating that no genuine
dispute of material fact exists and that it is entitled to a judgment as a matter of law. Godfrey v. Ruiz,
90 S.W.3d 692, 695 (Tenn. 2002); Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn. 1998). To be
entitled to a judgment as a matter of law, the moving party must either affirmatively negate an
essential element of the non-moving party’s claim or establish an affirmative defense that
conclusively defeats the non-moving party’s claim. Byrd v. Hall, 847 S.W.2d at 215 n. 5; Cherry
v. Williams, 36 S.W.3d 78, 82-83 (Tenn. Ct. App. 2000).
Once the moving party demonstrates that it has satisfied Tenn. R. Civ. P. 56’s requirements,
the non-moving party must demonstrate how these requirements have not been satisfied. Bain v.
Wells, 936 S.W.2d 618, 622 (Tenn. 1997). Mere conclusory generalizations will not suffice.
Cawood v. Davis, 680 S.W.2d 795, 796-97 (Tenn. Ct. App. 1984). The non-moving party must
convince the trial court that there are sufficient factual disputes to warrant a trial (1) by pointing to
evidence either overlooked or ignored by the moving party that creates a factual dispute, (2) by
rehabilitating evidence challenged by the moving party, (3) by producing additional evidence that
creates a material factual dispute, or (4) by submitting an affidavit in accordance with Tenn. R. Civ.
P. 56.07 requesting additional time for discovery. McCarley v. West Quality Food Serv., 960 S.W.2d
585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d at 215 n. 6. A non-moving party who fails to carry
its burden faces summary dismissal of the challenged claim because, as our courts have repeatedly
observed, the “failure of proof concerning an essential element of the cause of action necessarily
renders all other facts immaterial.” Alexander v. Memphis Individual Practice Ass’n, 870 S.W.2d
278, 280 (Tenn. 1993); Strauss v. Wyatt, Tarrant, Combs, Gilbert & Milom, 911 S.W.2d 727, 729
(Tenn. Ct. App. 1995).
Summary judgments enjoy no presumption of correctness on appeal. Pero’s Steak and
Spaghetti House v. Lee, 90 S.W.3d at 620; Scott v. Ashland Healthcare Ctr., Inc., 49 S.W.3d 281,
285 (Tenn. 2001). Accordingly, appellate courts must make a fresh determination that the
requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51
(Tenn. 1997). We must consider the evidence in the light most favorable to the non-moving party,
and we must resolve all inferences in the non-moving party’s favor. Godfrey v. Ruiz, 90 S.W.3d at
695; Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196 (Tenn. 2001). When reviewing the
evidence, we must determine first whether factual disputes exist. If a factual dispute exists, we must
then determine whether the fact is material to the claim or defense upon which the summary
judgment is predicated and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall,
847 S.W.2d at 214; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct.
App.1998).
III.
On this appeal, Mr. Percy renews his argument that the Department has somehow required
him to serve his sentences consecutively rather than concurrently and that his sentence would have
expired on April 8, 2000 had the Department properly classified him. We have concluded that the
record contains no material factual disputes regarding these assertions and, thus, that the trial court
properly disposed of them by summary judgment.
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The basis for Mr. Percy’s insistence that the Department is requiring him to serve his
sentences consecutively is far from clear. His pro se pleadings are difficult to understand. Even
though we customarily give pro se litigants who are untrained in the law a certain amount of leeway
in drafting their pleadings and briefs, Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct.
App. 2000); Paehler v. Union Planters Nat’l Bank, Inc., 971 S.W.2d 393, 397 (Tenn. Ct. App.
1997), we will not permit them to shift the burden of the litigation to the courts or to their
adversaries. Thus, we will decline to manufacture claims or defenses for pro se litigants where none
exist. Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196, 198 (Tenn. Ct. App. 1994). We will, however,
give effect to the substance, rather than the form or terminology, of their papers. Brown v. City of
Manchester, 722 S.W.2d 394, 397 (Tenn. Ct. App. 1986); Usrey v. Lewis, 553 S.W.2d 612, 614
(Tenn. Ct. App. 1977).
The sentencing manager’s affidavit clearly states that the sentences for his four convictions
are running concurrently. In addition, the affidavit states that Mr. Percy’s sentence will expire on
February 28, 2003, after taking his jail time and sentence credits into consideration. A simple
mathematical calculation demonstrates that Mr. Percy will actually have served less than eight years
by the time the Department releases him from custody. That fact effectively rebuts Mr. Percy’s
argument that he was serving his sentences consecutively.
Mr. Percy also appears to be arguing that the Department somehow violated his plea
agreement because it did not allow him to accrue sentence reduction credits for two of his rape
convictions that had been “flagged as multiple rape sentences,” just as it had permitted him to accrue
sentence reduction credits on both his aggravated kidnaping sentence and one of his rape sentences.
The transcript of Mr. Percy’s sentencing hearing effectively undermines this argument.
We reiterate that the plea bargain worked out by the State and approved by the sentencing
court is void because it is inconsistent with Tenn. Code Ann. § 39-13-523. Neither the assistant
district attorney general prosecuting Mr. Percy nor the sentencing court had the authority to agree
to permit Mr. Percy to be eligible for parole consideration after serving only thirty percent of his
sentence or to permit him to reduce his sentence by earning sentence reduction credits. Accordingly,
to the extent that a plea bargain agreement is viewed as a contract, it is unenforceable because void
contracts cannot be enforced – especially contracts that are clearly contrary to the public policy of
this state as established by the Tennessee General Assembly.
Even if we ignore the patent unenforceability of the plea bargain, there are two additional
reasons why Mr. Percy’s insistence that he was entitled to earn sentence reduction credits on two of
his rape convictions is without merit. First, the assistant district attorney general and the sentencing
judge never told Mr. Percy that he would be entitled to earn sentence reduction credits if he agreed
to plead guilty. They told him only that he would be required to serve eight years and that he would
be eligible to be considered for parole after serving thirty percent of his sentence. Thus, entitlement
to sentence reduction credits was never part of the plea bargain agreement.
The second reason why Mr. Percy’s sentence credit claim must fail is that the Department,
the sole agency responsible for administering the sentence reduction program authorized by Tenn.
Code Ann. § 41-21-236 (1997), was not a party to the plea bargain agreement. It was not directly
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involved in the negotiations, and Mr. Percy has presented no evidence or legal argument warranting
the conclusion that the assistant district attorney general prosecuting Mr. Percy had the express or
implied authority to act as the Department’s agent. The Department draws its authority to administer
the sentence reduction credit program directly from Tenn. Code Ann. § 41-21-236, not from the
judgment of the sentencing court. Therefore, the Department was obligated to follow Tenn. Code
Ann. § 39-13-523(b) with regard to Mr. Percy’s sentence credits.8
IV.
We affirm the order dismissing Mr. Percy’s petition for declaratory judgment and remand
the case to the trial court for whatever further proceedings may be required. We tax the costs of this
appeal to Mark A. Percy, and we also find that his petition and subsequent appeal are frivolous for
the purposes of Tenn. Code Ann. § 41-21-807(c) (Supp. 2002) and Tenn. Code Ann. § 41-21-
816(a)(1) (1997).
_____________________________
WILLIAM C. KOCH, JR., JUDGE
8
If anything, it appears that the Department construed Tenn. Co de Ann. § 39-13-52 3(b) more favorably to Mr.
Percy than warranted. As a multiple rapist, Mr. Percy was not entitled to earn sentenc e reduction credits on any of his
rape or aggravated rape co nvictions. Accordingly, while he would have be en entitled to earn sentenc e reduction credits
on his sentence for aggravated kidnaping, we fail to understand the basis for the Department’s decisio n to pe rmit him
to earn sentence reduction credits o n one of his three rape sentenc es. The sentencing mana ger’s affidavit states that Mr.
Percy earned 1,056 days of sentence reduction credits on his aggravated kidnaping sentence and one of his rape
sentences. It would seem that Mr. Percy was not entitled to at least a portion of these sentence credits and that, by
granting them, the Department has calculated his sentence expiration date earlier than it should be.
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