FILED

July 1, 1998

Cecil W. Crowson

Appellate Court Clerk

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

AT NASHVILLE

APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

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
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JAMES E. COLLINS, )

) Davidson Chancery

Plaintiff/Appellant, ) No. 97-598-III

)

VS. )

)

TENNESSEE DEPARTMENT OF ) Appeal No.

CORRECTION, ) 01A01-9709-CH-00558

)

Defendant/Appellee. )

O P I N I O N

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

PRESIDINGJUDGE,MIDDLE SECTION

CONCUR:

_____________________________

BEN H. CANTRELL, JUDGE

_____________________________

WILLIAM C. KOCH, JR., JUDGE