IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 1, 2020

HUGH A. NICELEY v. TENNESSEE DEPARTMENT OF CORRECTION

Appeal from the Chancery Court for Davidson County

No. 18-0957-I Patricia Head Moskal, Chancellor

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No. M2019-02156-COA-R3-CV

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This appeal arises from the summary dismissal of an inmate’s petition for declaratory 

judgment on the calculation of his sentence expiration date. The inmate contended that 

each of his consecutive sentences should have begun automatically upon the expiration of 

the prior sentence’s period of ineligibility for release. The trial court found the material 

facts were undisputed and concluded that the Tennessee Department of Correction 

correctly calculated the sentences. Finding no error, we affirm the judgment of the trial 

court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which JOHN W.

MCCLARTY and ARNOLD B. GOLDIN, JJ., joined.

Hugh A. Niceley, Wartburg, Tennessee, Pro Se.

Thomas Jon Aumann, Assistant Attorney General, Nashville, Tennessee, for the appellee, 

Tennessee Department of Correction.

MEMORANDUM OPINION1

On May 13, 1994, Hugh Niceley (“Petitioner”) was incarcerated after being found 

guilty of aggravated rape, aggravated sexual battery, and the rape of a child. One month 

 

1 The Court, with the concurrence of all judges participating in the case, may affirm, reverse or 

modify the actions of the trial court by memorandum opinion when a formal opinion would have no 

precedential value. When a case is decided by memorandum opinion it shall be designated 

“MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason 

in a subsequent unrelated case.

11/10/2020
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later, the trial court sentenced Petitioner to the custody of the Tennessee Department of 

Correction (“the Department”) for a total of 56 years. The court ordered Petitioner to serve 

the sentences in four consecutive terms: the first for 15 years; the second for 15 years; the 

third for eight years; and the fourth for 15 years.2 As a Range I offender, Petitioner would 

be eligible for parole after serving 30% of each sentence.

In 1999, the trial court amended Petitioner’s sentence for child rape by clarifying

that Petitioner was required to serve 100% of his sentence for child rape to comply with 

Tenn. Code Ann. § 39-13-523.

3

In or around 2003, Petitioner filed a petition for post-conviction relief, alleging 

ineffective assistance of counsel. In 2006, the trial court granted the petition and ordered a

new trial. Shortly thereafter, Petitioner was released on bond. In February 2008, however, 

the Court of Criminal Appeals reversed the trial court’s order, and Petitioner’s bond was 

revoked. See Nicely v. State, No. M2006-01892-CCA-R3-PC, 2008 WL 544600, at *5 

(Tenn. Crim. App. Feb. 22, 2008).

Several years later, Petitioner moved to set aside the 1999 amended judgment for 

child rape, arguing that it was illegal. The trial court determined that Petitioner was 

required by statute to serve 100% of the sentence and denied the motion. The Court of 

Criminal Appeals affirmed the decision. See State v. Niceley, No. M2017-02535-CCA-R3-

CD, 2019 WL 413741, at *2 (Tenn. Crim. App. Feb. 1, 2019).

Petitioner commenced this action pro se in September 2018 by filing a petition for 

declaratory judgment in the Davidson County Chancery Court. Petitioner contended that 

the Department made various errors in calculating his sentence, and he asserted that his last 

sentence would expire in October 2018. The Department opposed the Petition, contending 

Petitioner was still serving his third prison term.

In May 2019, the Department moved for summary judgment. Both parties relied on 

copies of Petitioner’s judgment sheets and records from the Tennessee Offender 

Management Information System (“TOMIS”). In addition, the Department produced the 

affidavit of Amber Phillips, Assistant Director of the Department’s Sentence Management 

Services. Ms. Phillips explained, inter alia, that the Department would not know the end 

date for Petitioner’s fourth prison term until the Tennessee Board of Parole determined 

“how much of [the third term] . . . would have to be served.”

 

2 Petitioner was originally convicted on seven counts of aggravated rape but four were set aside on 

appeal. See State v. Nicely, No. 01C01-9506-CC-00160, 1996 WL 233985, at *5 (Tenn. Crim. App. May 

9, 1996). The length and sequence of his prison terms were not altered by the reversal. Id.

3 Tennessee Code Annotated § 39-13-523 provides in relevant part that “persons convicted of rape 

of a child . . . . shall be required to serve the entire sentence imposed.” Id. § 523(a)(2) and (b).
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In its Memorandum and Order of November 4, 2019, the trial court found no dispute 

over the material facts, determined that the Department was entitled to judgment as a matter 

of law, and entered judgment accordingly. This appeal followed.

ISSUES

Petitioner raises four issues on appeal:

(1) Whether the first sentence became effective on the date the district 

attorney filed the judgment, or whether it became effective on the date 

calculated by the Department?

(2) Whether either the Department or the trial court had jurisdiction over the 

amended judgment for count 9?

(3) Whether the Board of Parole conducted custodial parole hearings on 

counts 1, 2, 3, and 8, without legal authority and jurisdiction of those 

counts?

(4) Whether TDOC correctly calculated the appellant’s sentences?

STANDARD OF REVIEW

This court reviews a trial court’s decision on a motion for summary judgment de 

novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,

MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Accordingly, this court must make a fresh 

determination of whether the requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.

We consider the evidence in the light most favorable to the nonmoving party and draw all 

reasonable inferences in that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 

2002).

Courts should grant summary judgment when “the pleadings, depositions, answers 

to interrogatories, and admissions on file, together with the affidavits, if any, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” Tenn. R. Civ. P. 56.04. When the party moving for summary 

judgment “does not bear the burden of proof at trial, the moving party may satisfy its 

burden of production either (1) by affirmatively negating an essential element of the 

nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s evidence at 

the summary judgment stage is insufficient to establish the nonmoving party’s claim or 

defense.” Rye, 477 S.W.3d at 264 (emphasis in original).

If the moving party satisfies its burden of production, “the nonmoving party may 

not rest on the allegations or denials in its pleadings.” Id. at 265. Instead, the nonmoving 

party must respond with specific facts showing there is a genuine issue for trial. Id. A fact 

is material “if it must be decided in order to resolve the substantive claim or defense at 
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which the motion is directed.” Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). A “genuine 

issue” exists if “a reasonable jury could legitimately resolve that fact in favor of one side 

or the other.” Id.

ANALYSIS

It is the Department’s responsibility “to calculate sentences in accordance with the

sentencing court’s judgment and with applicable sentencing statutes.” Bonner v. Tennessee 

Dep’t of Correction, 84 S.W.3d 576, 581–82 (Tenn. Ct. App. 2001) (citations omitted).

“[T]he courts’ interest in sentence calculation issues is simply ‘in seeing to it that the law 

is properly applied.’” Id. at 582.

I. EFFECTIVE DATE

Petitioner’s first issue concerns the date that his first sentence began to run. When 

calculating his sentences, the Department used a “sentence effective date” of May 13, 

1994.4 Petitioner contends that his sentence did not “commence” until his judgments 

became final in February 1995; however, Petitioner does not dispute that he received credit 

for the time he served before and after February 1995. Accordingly, if identifying May 13, 

1994, as the sentence effective date was an error, the error was immaterial, and “appellate 

courts ‘will not reverse for immaterial errors.’” Arnold v. Ford, No. 01-A-01-9505-CV00203, 1995 WL 611280, at *4 (Tenn. Ct. App. Oct. 19, 1995) (quoting State v. Delinquent

Taxpayers, 167 S.W.2d 690, 693 (Tenn. Ct. App. 1942)).

II. AMENDED JUDGMENT

Next, Petitioner contends that both the Department and the trial court lacked 

“jurisdiction of” the 1999 amended judgment. This argument is not only immaterial, but it 

is also barred by the doctrine of res judicata. See Jackson v. Smith, 387 S.W.3d 486, 491 

(Tenn. 2012) (“The doctrine of res judicata or claim preclusion bars a second suit between 

the same parties or their privies on the same claim with respect to all issues which were, or 

could have been, litigated in the former suit.” (citations omitted)). As stated, the Court of 

Criminal Appeals ruled that Petitioner must serve 100% of his sentence for child rape. See 

Niceley, 2019 WL 413741, at *2 (“[I]t is without question the sentence in Count 9 for . . .

was to be served at 100 percent.”). Accordingly, the amended judgment did not change the 

length or sequence of Petitioner’s prison terms, only Petitioner’s eligibility for parole.

 

4 Petitioner was sentenced under both the Criminal Sentence Reform Act of 1982 and the Criminal 

Sentence Reform Act of 1989. For the purposes of this case, there is no material difference between the 

1982 and 1989 acts.
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III. BOARD OF PAROLE HEARINGS

Petitioner’s third issue regards the jurisdiction of the Board of Parole to conduct 

“custodial parole” hearings. Like the first two issues, this issue is immaterial to whether 

Petitioner was entitled to be released in October 2018. 

According to Ms. Phillips, custodial parole hearings are provided to inmates who 

“have a sentence of 100% consecutive to a sentence with a release eligibility date.” The 

legislature has delegated authority to the Board of Parole to determine the date an inmate 

will begin service of a consecutive sentence when the inmate has been “sentenced to 

consecutive sentences which require custodial parole consideration.” Tenn. Code Ann. 

§ 40-20-110(b)(1).

Petitioner had three parole hearings prior to October 2018 and was denied parole at 

all three hearings. Thus, the Board’s actions had no effect on Petitioner’s sentence 

expiration dates.

IV. PERIODS OF INELIGIBILITY

Petitioner contends the Department failed to calculate each sentence’s period of 

“ineligibility for release.” Petitioner contends this is significant because “each 

sentence . . . immediately commences upon completion of the preceding sentence’s period 

of ineligibility for release.” We disagree.

Inmates convicted of felonies and serving sentences of over two years in 

confinement “are entitled to . . . consideration for early release upon attaining their ‘release 

eligibility date.’” Shorts v. Bartholomew, 278 S.W.3d 268, 277 (Tenn. 2009) (emphasis 

added) (citing Tenn. Code Ann. § 40-35-501). The “release eligibility date” is “the earliest 

date an inmate convicted of a felony is eligible for parole.” Stewart v. Schofield, 368 

S.W.3d 457, 463 (Tenn. 2012). For inmates serving consecutive sentences, “the periods of 

ineligibility for release are calculated for each sentence and are added together to determine 

the release eligibility date.” Tenn. Code Ann. § 40-35-501(m).

It is undisputed that Petitioner’s release eligibility date has passed. It is also 

undisputed that Petitioner has received consideration for parole three times. Thus, the 

“periods of ineligibility for release” and Petitioner’s “release eligibility date” are no longer 

relevant. Petitioner provides no authority for his conclusion that he was automatically 

entitled to begin serving his consecutive sentences upon the expiration of the prior 

ineligibility period. Periods of ineligibility for release are significant only when 

determining whether an inmate is entitled to be considered for release on parole. See 

id.; Shorts, 278 S.W.3d at 277.

For the foregoing reasons, we affirm the judgment of the trial court.
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CONCLUSION

We affirm the trial court’s judgment and remand the matter for dismissal with costs 

of appeal assessed against Hugh A. Niceley.

________________________________

 FRANK G. CLEMENT JR., P.J., M.S.