# FILED
October 17, 19 97 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

LARRY D. TURNLEY, ) ) Plaintiff /Appella nt, )

) Davidson Chancery ) No. 94-3602-II VS. ) ) Appeal N o. ) 01A01-9601- CH-00015 TENNESSEE DEPARTMENT OF ) CORRECTION, ) ) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

For the Plaintiff/

Appellant : For the Defendant/Appellee : Larry D. Turnley, Pro Se Charles W . Burson Attorney General and Reporter Darian B . Taylor Assistant Attorney General Crim inal Justic e Division



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 Mr. Turnley later filed a petition for post-conviction relief challenging the plea b argai n agreement

because of the manner in which the Depar tment of Co

rrection was ca

lculating these sentenc es. The Court of Criminal Appeals reversed the s umm ary dismissal of this petition and remanded the case with directions to appoint counsel for Mr. Turnley and to conduct a hearing on his petition for post-conviction relief. See Turnley v. State, App. No. 01C01-9407-CR-00243, 1995 WL 544001 (Tenn. Crim. App. Sept. 14, 199 5). The record contains no evidence c oncerning the outco me or s tatus of thi s proc eedin g. -2- 

## O P I N I O N

This appeal inv olves a dispute over a state pris oner’s release eligi bilit y date. After th e Tennessee Departm ent of Correction did not respond to his request for a declaratory ruling, the prisonerfiled a de clarator y jud gment

action in th e Chancery Courtfor Davidson

County seeking a declaration that his release eligibility date was Septem ber 2000. The Departm

ent filed a

motion for sum mary judgm ent supported by an affidavi t setting out its relea se eligibil ity dat

e calculations. After the trial court dismissedhis pet ition, th e prisoner perfected this appeal. We agree with the trial court ’s conclusion that the material facts are not in dispute and, accordingly, affirm the summary judgment.
I. LarryD. Turnley

is c urrently incarcerated in the Morgan County Regional Correctional Facility following a lengthy crim inal career. In March 1975 he received a16 to 30-y ear priso n sen ten ce af ter b ein g co nvi cted of g ran d la rcen y, second degree bur gla ry, robbery , and four coun t s of arm

ed robbery . Mr. T

urnley was par oled in April1982 but was returned to custody seven months later after comm itting another armed robbery. He w as co nvicted of this offense and received another 35-year sentence to be serve d consecuti vely w ith his ear lier sentences.
Mr. Turnley

escaped f rom c ustodyin September 1983. Before he w as captured in Virginia , he com

mitte d an aggra

vated robbe

ry in T ennessee a

nd other crim

es in Virginia. While s till in Virginia’s custody, he agreed to plead guilty to the Tennessee aggravated robbery and escape charges and received 8-y ear and 1- year sentence s to be served concurrently with each other and consecutively with his earlier Tennessee sentences
. 1 He was eventually relea sed to Tennessee’s custody and re turne d to the Davidson County Jail o n April 14, 1 992. As a r esult of his later co nvictions for-3-

armed robbery, escape, and aggravated rob ber y, Mr. Tu

rnley is now ser

ving a 16 to 73-year sentence.
After being infor

med th at he woul d not be eligible tobe consider ed for re lease
u ntil 2007, Mr. Turnley sought a dec laratory

ruling fro m the Depa

rtme nt o f Correct ion concerni ng its calc ul ati on of his sentence eli gibility date. W

hen the Depa rtm ent declined to issue a ruling, Mr. Turnley filed a petition for declara tory judgm ent pursuant to Tenn. Code Ann. § 4-5-225 ( Supp. 1997) (form erly Tenn. C ode Ann. § 4- 5-224) in the Chancery Court for Davidson County. T he Department responded with a m

otion for su mmary j udgmen t supported b y an a

ffidavit o f the manager of Senten ce Infor

matio n Service s detailingthe Dep artment ’s calculat ions of Mr. Turnley ’s rele ase eligibility date. Mr . Turnley res ponded by taking issue with

the Depart ment’s calculat ions. The trial court granted the Departm ent’s motion after determ ining that there

were no genuine disp u tes conc erning the material facts and that the Department was entitled to a judgment as a matter of law.
II.
The sole issue o n this appea l is whethe

r the De partm ent w as e ntitled to a judgm ent in its f

avor as a matte

r of law based on the evidence submitted in support of and in opposit

ion to its motion for summ ary judgm

ent. As we understand Mr. Turnl ey’s pro se brief and pleadings, he insists that the Department was not entitled to a judgment as a ma

tter of la w becaus e the record contains material factual disputes withre gard t o the perc entage of his later arm ed robbery , aggrav ated robbe ry, and escape sentence s he m

ust serve before being eligible

for rele ase class ification

status and to the c alculatio n of his sent ence cre dits.
The party seeking a s ummary j udgmen t has the ini tial burde n of satisf ying the trial court that

there ar e no ge n uine dispute d factual issues for

trial and that it is entitled to a

judgment as a matter of l aw. See Wyatt v. A-Best, Co ., 910 S.W .2d 851, 854 (Tenn. 1995). Once the moving party has filed a pr

operly supported m

otion, the burden shifts to the

non-moving part y t o demonstrate by aff idavits or other appropria te evidentia

ry m aterials th at there is a genuine , ma terial f actual dis pute-4-

warran ting a trial on t he merits. By rd v. Hall , 847 S.W.2d 208, 211 (Tenn. 1993). Non-m oving par ti es s ho ul d n ot tak e a mo tion for summary judgment lightly, see Fowler v. Happy Goodman Family, 575 S.W.2d 496, 499 (Tenn. 1978), andshould not rely on the denial s or allega

tions in their pleadings to establish a material factual disputethat will be sufficient to defe at asummary judgment motion. See Tenn. R. Civ. P. 56.06
.
Mr. Turnley ’s resp onse to the D epartm ent’s m oti on for summ ary j udgmen

t does not set forth specific facts showing that there is a genuine issue for trial. Rather, itis simply a re statement of the allegations in his earlier pleadings and other papers filed with the tri al court. His asser tions about

the circ umsta

nces of his incarce

ration in Virginia

andthe term s and conditi ons of his sentenc es for aggravated r obbery and escape are completely

unsupported and unsubstantiated. Likewise, his assertions relating to the calculation of his sentence credits appear to overlook the fact that he is not entitle d to these c redits unti l he earns them and that he is not enti tled to sentence credits du ring the “dead t ime” when he had es caped. See Tenn. C ode Ann. § 41-21-2 36(a)(3) (1 997).
III.
We affi rm the summar y jud gment dismis sing Mr. T

urnley ’s petit

ion and rema nd the case to the trial court for whatever further proce edin gs are requi red. We tax the costs of this appeal to Larry D. T urnley for which execution, if necessary, m ay issue.

_________________ ___________ WILLIAM C. KOCH, JR., JUDGE CONCUR:

_________________

_________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION-5-

_________________

_________________ SAMUEL L. LEWIS, JUDGE