# FILED
July 1, 1998 Cecil W. Crowson Appellate Cou rt Clerk JAMES E. COLLINS, ) ) Davidson Chancery Plaintiff/Appellant, ) No. 97-598-III ) VS. ) ) TENNESSE E DEPARTMEN T OF ) Appeal No. CORRECTION, ) 01A01-9709-CH-00558 ) Defendant/Appellee. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE CHANCERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE HONORABLE ELLEN HOBBS LYLE, C HANCELLOR

James E. Collins, #83465 R.M.S.I. Unit 6-A-226 7475 Cockrill Bend Road Nashville, Tennessee 37209-1010 PRO SE/ PLAINTIFF/APPEL LANT John R. Miles, #013346 Cordell Hull Building, Second Floor 425 Fifth Avenue

North Nashville, Tennessee 37243-0488 ATTORNEY FOR DEFENDANT /APPELLEE

MODIFIED, AFF

IRMED AND REMAND ED

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE WILLIA M C. KOCH, JR., JUDGE-2-

JAMES E. COLLINS, ) ) Davidson Chancery Plaintiff/Appellant, ) No. 97-598-III ) VS. ) ) TENNESSE E DEPARTMEN T OF ) Appeal No. CORRECTION, ) 01A01-9709-CH-00558 ) Defendant/Appellee. )



## O P I N I O N

The captioned appe llant is a prisoner in the punitive custody of the Tennessee Department

of Correction. On

February 19, 1997, he filed i

n the Trial C ourt a petition for declaratory

judgment alleging that on November 16 , 1996, he filed with the Department a petition for a declaratory order correc ting an erroneous entry showing two life sentences which have been merged.

The Dep art men t mo ved for sum mar y jud gmen t su ppo rte d by a ffida vit of a Sentencing Analyst of the Department stating:

3. Mr. Collins is curre nt ly serving three concurren tlife sentences based upon three felony conviction s . 4. Mr. Collins was convicted of First Degre e M urder in Cocke Co. Circuit Case No. 3450. He was sentenced to life imprisonmen

t for thisoffense upon a

plea of guilty entered on April

2 4, 1978 . A copy of the Judgment Order in this case is attached as Exhibit A. 5. Mr. Collins was als o charged with three offenses of Grand Larceny, Rece iving Stolen Property and ConcealingStolen 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 pl ed g uilty to Gran d Larceny

in Hamblen Co. Case No. 78-CR-371 and was sentence to three years to be served conc

urrently wi

th Hamblen Co. Case

No. 78-CR-381. A copy of the Judgment Order in this cas e is attached as Exhibit C. TDOC rec ords i ndica te that Mr. Collins fully expired

his sentence for

Grand Larc

eny in Hamblen Co. Case No. 78-CR-371 on January 12, 1981.-3- 7. Mr. Collins was also charged with the two offenses of F irst Degree Mu rder and Armed Ro

bbery in Hamblen Co. Case No. 78-CR-381. A copy of the indictment in this case is attached as Exhibit D. 8. Mr. Colli ns pled guilty to both offenses for whichhe was indicted in Hamblen Co. Case No. 78-CR-381 and received life im

prisonment on these

two convictions. A copy of the Judgment Order

in this case is attache

d as Exhibit E and it makes no refe rence indicatin g that the two gu

ilty pleas are mer ged for purpo ses of sent encing. 9. Because

First Degree Murder and Armed Robbery are separate offenses, TDOCrecords reflect that Mr. Colli ns is serving a life

sentence for ea

ch of the two guil

t y pleas in Hamblen Co. Case No. 78-CR-381. 10. TDOC records ref l ect that Mr. Collins’ sentences in Cocke Co. Circu it Case No. 3450 and in Hamblen Co. Case No. 78-CR-3 81 are all con current with each other, and the sentence effective date for all of these offenses is recorded as January 12, 1978. 11. Al th ough TDOC records reflect that Mr. Collins is serving three life s entences, 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 y

ears on a life se

nte nce before becoming eligible for parol e. A life sentence has no expiration date. 13. In1986, Mr. Collins signed a sentence cred i t waiver under TennesseeCode Annotated § 41-21 -236. This allowed him to earn senten

ce reduction cr

edits to bring his release eligi

bility date c

loser to the prese

nt. 14. Cur rent ly, Mr. Collins has reduced his rele ase eligibility date to January 23, 2002. Appellant filed his responsive affidavit which is composed entirely of argument except that it states: 15) Af fiant states whether he is serving one (1), two (2) of three (3) life sentences although if conc

urrent still prejudi c es him due to it keeps him from obtaining a lower security classification st

atus when all othe

r inmates enjoy

this same thing, it also pr ejudi ces 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 a

lso prejudices him regardin g a possible release from prison, due to his present date

of eligibility

is not a for sure th

ing, and to have extra sentences o

n your rec

ord when they

should n’t b e-4- will ref lect 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 e xpungment statute? If they don’t hurt you, why shouldn’twe just pass a few charges around to people t

o have on their record regardless of what the Court stated, just for the he ck of it? T hat would not be justice, thats the one thing I am attempting to seek at this time, is justice.
The Trial C ourt entere d summary judgm ent statin g:

Insum, then, t he pet itioner disputes Ms. Whisman’s testimony that he is serving thr

ee life sentenc

es; he contends he is serving just one . But what is critic al in this case is

what effect,if any, the dis pute on char acterizin g t he petition as servin g one life sentence or three being served concurrent l y 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 issu

es of material fact to counter Ms. Whisman’s testimony. The C ourt determines that the petitioner’s assertions in

response to Ms. Whitma

n’s affidavit merely query her

affidavit and ar

e not sufficient to

est ablis h genuine issues o

f material fact

. It is ther e fore ORDERED that the respondent’s motion of sum mary ju dgmen t is gr anted . In that the petitioner has qualified to

proceed as a pauper, the Court assesses only state liti gation ta x.
A party movin

g for s ummary judg

ment must support the

motion with admissible evidence which, if

uncontradicted, entitled

that party to summary judgment as a matter of law. TRCP Rule 56.

Whensuch a

mot ion and evi den ce ha s be en fi led by th e mo vin g par ty, 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 judg ment is proper. Roberts v. Roberts , Tenn. App. 1992, 845 S.W.2d 225.

Inthe present case

the appellant filed no evidence to contradict that offered by the Department

that the Department records conform to the judgments of the Tr i al Court’s. Therefore, sum

mary judgm

ent was proper. T

his Court finds no g

rounds for waive

r of costs.-5- The judgment of the T

rial Court is

modified to provide that all costs accured in theTrial Courtshall 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 Tr ial Co urt for further app

ropriate proce

edings.

MODIFIED, AFF

IRMED AND REMAND ED
.

_________________________________ HENRY F. TODD PRES IDING JUDGE, MIDDLE SECT ION

CONCUR:

_____________________________ BEN H. CANTRELL, JUDGE

_____________________________ WILLIA M C. KOCH, JR., JUDGE