The opinion
JAMES E. COLLINS, )
) Davidson Chancery
Plaintiff/Appellant, ) No. 97-598-III
)
VS. )
)
TENNESSEE DEPARTMENT OF ) Appeal No.
CORRECTION, ) 01A01-9709-CH-00558
)
Defendant/Appellee. )
IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT NASHVILLE
July 1, 1998
APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE Cecil W. Crowson
Appellate Court Clerk
HONORABLE ELLEN HOBBS LYLE, CHANCELLOR
James E. Collins, #83465
R.M.S.I. Unit 6-A-226
7475 Cockrill Bend Road
Nashville, Tennessee 37209-1010
PRO SE/ PLAINTIFF/APPELLANT
John R. Miles, #013346
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
ATTORNEY FOR DEFENDANT /APPELLEE
MODIFIED, AFFIRMED AND REMANDED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
JAMES E. COLLINS, )
) Davidson Chancery
Plaintiff/Appellant, ) No. 97-598-III
)
VS. )
)
TENNESSEE DEPARTMENT OF ) Appeal No.
CORRECTION, ) 01A01-9709-CH-00558
)
Defendant/Appellee. )
OPINION
The captioned appellant is a prisoner in the punitive custody of the Tennessee
Department of Correction. On February 19, 1997, he filed in the Trial Court a petition for
declaratory judgment alleging that on November 16, 1996, he filed with the Department a
petition for a declaratory order correcting an erroneous entry showing two life sentences which
have been merged.
The Department moved for summary judgment supported by affidavit of a Sentencing
Analyst of the Department stating:
3. Mr. Collins is currently serving three
concurrent life sentences based upon three felony convictions.
4. Mr. Collins was convicted of First Degree
Murder in Cocke Co. Circuit Case No. 3450. He was
sentenced to life imprisonment for this offense upon a plea of
guilty entered on April 24, 1978. A copy of the Judgment
Order in this case is attached as Exhibit A.
5. Mr. Collins was also charged with three
offenses of Grand Larceny, Receiving Stolen Property and
Concealing Stolen Property in Hamblen County Case No. 78-
CR-371. A copy of the indictment in this case is attached as
Exhibit B.
6. Mr. Collins pled guilty to Grand Larceny in
Hamblen Co. Case No. 78-CR-371 and was sentence to three
years to be served concurrently with Hamblen Co. Case No.
78-CR-381. A copy of the Judgment Order in this case is
attached as Exhibit C. TDOC records indicate that Mr.
Collins fully expired his sentence for Grand Larceny in
Hamblen Co. Case No. 78-CR-371 on January 12, 1981.
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7. Mr. Collins was also charged with the two
offenses of First Degree Murder and Armed Robbery in
Hamblen Co. Case No. 78-CR-381. A copy of the indictment
in this case is attached as Exhibit D.
8. Mr. Collins pled guilty to both offenses for
which he was indicted in Hamblen Co. Case No. 78-CR-381
and received life imprisonment on these two convictions. A
copy of the Judgment Order in this case is attached as Exhibit
E and it makes no reference indicating that the two guilty
pleas are merged for purposes of sentencing.
9. Because First Degree Murder and Armed
Robbery are separate offenses, TDOC records reflect that Mr.
Collins is serving a life sentence for each of the two guilty
pleas in Hamblen Co. Case No. 78-CR-381.
10. TDOC records reflect that Mr. Collins’
sentences in Cocke Co. Circuit Case No. 3450 and in
Hamblen Co. Case No. 78-CR-381 are all concurrent with
each other, and the sentence effective date for all of these
offenses is recorded as January 12, 1978.
11. Although TDOC records reflect that Mr.
Collins is serving three life sentences, because they are
concurrent, the sentence calculation is the same as if he were
only serving one life sentence.
12. At the time of his convictions, Mr. Collins was
required to serve thirty full calendar years on a life sentence
before becoming eligible for parole. A life sentence has no
expiration date.
13. In 1986, Mr. Collins signed a sentence credit
waiver under Tennessee Code Annotated § 41-21-236. This
allowed him to earn sentence reduction credits to bring his
release eligibility date closer to the present.
14. Currently, Mr. Collins has reduced his release
eligibility date to January 23, 2002.
Appellant filed his responsive affidavit which is composed entirely of argument except
that it states:
15) Affiant states whether he is serving one (1),
two (2) of three (3) life sentences although if concurrent still
prejudices him due to it keeps him from obtaining a lower
security classification status when all other inmates enjoy this
same thing, it also prejudices him regarding his job
opportunities in that he will be denied such with an extra life
sentence on his record when it shouldn’t be there, and it also
prejudices him regarding a possible release from prison, due
to his present date of eligibility is not a for sure thing, and to
have extra sentences on your record when they shouldn’t be
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will reflect badly upon him when the board reviews him for
possible release in the near future, anyone who is incarcerated
does not want charges and sentences on his record that don’t
belong there, if that was the case, why do our Court’s have
dismissals of cases at times if they don’t prejudice you, why
do we have an expungment statute? If they don’t hurt you,
why shouldn’t we just pass a few charges around to people to
have on their record regardless of what the Court stated, just
for the heck of it? That would not be justice, thats the one
thing I am attempting to seek at this time, is justice.
The Trial Court entered summary judgment stating:
In sum, then, the petitioner disputes Ms. Whisman’s
testimony that he is serving three life sentences; he contends
he is serving just one. But what is critical in this case is what
effect, if any, the dispute on characterizing the petition as
serving one life sentence or three being served concurrently
has on parole eligibility. Ms. Whitman establishes that it has
no effect. The petitioner has failed to provide this Court with
legal authority or genuine issues of material fact to counter
Ms. Whisman’s testimony. The Court determines that the
petitioner’s assertions in response to Ms. Whitman’s affidavit
merely query her affidavit and are not sufficient to establish
genuine issues of material fact.
It is therefore ORDERED that the respondent’s
motion of summary judgment is granted. In that the petitioner
has qualified to proceed as a pauper, the Court assesses only
state litigation tax.
A party moving for summary judgment must support the motion with admissible
evidence which, if uncontradicted, entitled that party to summary judgment as a matter of law.
TRCP Rule 56.
When such a motion and evidence has been filed by the moving party, the opponent of
the motion must file evidence contradicting the evidence offered by the moving party. If the
opponent of the motion fails to respond as required by Rule 56.06, a summary judgment is
proper. Roberts v. Roberts, Tenn. App. 1992, 845 S.W.2d 225.
In the present case the appellant filed no evidence to contradict that offered by the
Department that the Department records conform to the judgments of the Trial Court’s.
Therefore, summary judgment was proper. This Court finds no grounds for waiver of costs.
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The judgment of the Trial Court is modified to provide that all costs accured in the Trial
Court shall be paid by the petitioner. As modified, the judgment of the Trial Court is affirmed.
Costs of this appeal are taxed against the appellant. The cause is remanded to the Trial Court
for further appropriate proceedings.
MODIFIED, AFFIRMED AND REMANDED.
_________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________
BEN H. CANTRELL, JUDGE
_____________________________
WILLIAM C. KOCH, JR., JUDGE
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