### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 2000 Session
JEROME STREETER v. TENNESSEE DE PARTMENT OF CORRECTION Appeal from the Chancery Court for Davidson County No. 97-2605-II Carol L. McCoy, Chancellor

No. M1999-02267-COA-R3-CV - Filed August 31, 2000

A prison inmate claimed that he was entitled to be released, because he had earned the require d sentence reduction credits. The Department of Correction d isagreed . The trial court granted summary judgment to the Department on the basis of laches. We affir

m the trial court’ s judgment, but upon a different basis.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
B EN H. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which W ILLI AM C. K OCH , J R . and W ILLI AM B. C AIN , JJ., joined. Jerome Streeter, Mountain City, Tennessee, Pro Se. Paul G. Summers,

Attorney Ge

neral and Report

er; Michael Moor

e, Solicitor Gene

ral; and Pamela S. Lorch, Assistant Attorney General, for the appe llee, Tennessee Department of Correction.
OPINION
I. S ENTENCE R EDUCTION C REDITS
In 1974 Jero me Stree ter was convicted of murder and of multiple armed robberies. He received a 75-year

sentence for th

os e crimes. At the beginning of the sentence, the Tennessee Department

of Correction (TDOC) calculated the earliest date he could be deemed to h ave completed it, by applying to his 75-y ear sentence all the good and honor time thatcould possibly be awarded for good beh av ior under the laws in effect at that time. The result was a presumptive sentence expiration date in the year 2012 instead of the ye ar 2049.
The sentence expiration date co uld be furt her shortened by the application of incentive credits, which were granted for participating in educational programs or for satisfactory performance-2-

in job placements. Disciplinary infractions in any g iven month could result in an inmate losing the incentive credits he might otherwise be entitled to ea rn that month. Of course another result of disciplinary

infractions would be the loss of good behavior credits that were already built into the inmate’s sentence.
In 1980 and 1981 the system for earning sentence reduction credits was changed. Good and honor time was replaced by Good Conduct Sentence Credits, with all g

ood and honor time

earned prior to July 1, 1981, p

roportionally

converted

to Good Conduct Sente

nce Credits. I

ncentive credit

s we re repla ced by Prisoner Performance Sentence Credits. These wer e not only changes of ter min olo gy, but changes in th e manner and ra

te at which prisone

rs might earn cr

edits to reduce th

eir sentences.
Another chang e that occu rred in the calculation of sentence credit was the Department’s conversion to the use of computers for record-keeping. Before this conve rsion, job supervisors reported program credits to institutional records clerks, who entered the information onto cards kept in the inmate’s file . This information was forwarded to TDOC’s Central O

ffice on a monthly

basis, where employees manually adjusted sentence s to reflect the newly-earned credit. The updated sentence information was available to inmates upon request to their counselors.
In 1978 the Department implemented the Offender Based Co mputer Information System (OBCIS). Each inmate’s sen ten ce information was entered into the new system, and checked for accuracy against his file. After it

became effective, the cards containing sentence credit information were destroyed.

It appears f

rom the argumen

ts presented in

this case that only the

number and type of sentence credits earned was entered into OBCIS, not the rea sons thatan inmate

failed to earn the maximum possible amoun t.
Under OBCIS, the records clerk at each institution would input the sent

ence credits

earned by eachinmate directly

into the syste

m on a monthly b

asis. Inmates

were furnished

with monthly printouts which set out their updated release eligibility and expiration date information.
In 1992 the Department converted from OBCIS to the current sy stem, the Tennessee Of fe nder Management Information Management Sy stem (TOMIS). Sentence credits recorded under OBCIS were downloaded into TOMIS. Program participation credits earned by inmates are entered into TOMIS on a month

ly basis by

inmate job supervi

sors and/or reco

rd cle r ks, and updates are furnished to inmate

s on a quarterly

basis.
II. T HE L AWSUIT
In March of

1997 Mr. Streeter filed a Petition for a Declaratory Order with the De partment of Correction, alleging that the Department had miscalculated his sentence e xpirati on date. In a letter dated May 27, 1997, the Department denied his petition, and recited that Mr. Streeter had earn ed 2604 Prisoner Perf ormance Sentenc

e Credits, but had lo

st 240 good conduc

t days t hroug h disciplinary infractions, for a then current expiration date of March 12, 2006.-3-

Mr. Streeter then fil

ed a Petition for Re

view in the Chance

ry Court of D

avid s on C oun ty, asking the court to order the Department of Correction to recalculate his sentence credits, and thereafter to order his immedia

te release, bec

ause (he contended) correct calculations would reveal that his sentence had already expired.
The Department filed a Motion to Dismiss the petition for failure to sta te a claim upon which relief can be granted. See Rule 12.02(6), Te nn. R. Civ. P. The aff

idavit of TDOC sent

ence analy

st Candace Whisman was filed in support of the motion. Her affidavit tracked the changes in the laws involving senten

ce credits which affected Mr. Streeter. Attac hed to the affida

vit were workshe

ets containing a monthly breakdown of the incentive cr

edits and prisoner

performance se

ntence credits earned by Mr. Streeter, and a manual calculation which applied the se cr edi ts, as w ell as t he 2 40 d ays of good conduct cr

edits lost because

of disciplinary infractions, to the presumptive expiration date on his 75-year sentence.
Because of the affidavit, the court treated the Motion to Dismiss as a Motion for Summary Judgment. See Rule 12.02, Tenn. R. Civ. P. The court granted summary judgment to TDOC on May 4, 1998, becau se the petitioner failed to respond to the motion. See Rule 56.05, Tenn. R. Civ. P. Mr. Streeter subsequently filed a Motion for Relief from Judgment Dueto Inadvertence, Mistake or Excusable

Neglect. He claimed tha t he had inadv ertently ma iled both copies of

his response to opposing counsel rather than to the chancery court, and supported this cla

im by documentation from the p rison mail room, which indicated that he had sent legal mail to the assistant attorne y genera l during the relevant time frame.
The trial cou rt grant ed the Motion for Relief from Judgment, and Mr. Streeter filed a response in which he discussed the general princ iples applicable

to summary judgments, and quoted an opinion of this court, Jones v. Reynolds , No. 01A01-9510-CH-00484 (Tenn. Ct. App. at Nashville, July 2, 1997) in which we discu s sed the numerous opportunities for error in the calculation of se

ntence credits. But the largest portion of his response was devotedto an argument th at was not part of h

is original complaint: that he was en titled to be re-sentenced for his crime under the more lenient standards established by the Criminal Sentencing Reform Act of 1989. Of course th

is court has ruled on numerous occasions that prisoners sentenced prior to the effective date of the Sentencing Reform A ct were not entitled to be re-sentenced under its provisions. See Burch v. Tenn. Dept. of Correction , 994 S.W.2d 137 (Tenn. Ct. App. 1999).
Mr. Streeter subsequently filed a Motion for

Leave to File Amended Complaint, which the trial court granted. The Department filed a Mot ion to D ismiss the Supplemental Complaint or Alternatively

for Summary Judgment, supported by a memorandum, by the re-filed affidavit of Candace Whisman, and by the affidavit

of Fa ye Claud, Manager of Sentence Information Services for the Tennessee Department of Correction. Attached to Ms. Claud’s affidavit were departmental records regarding eleven infractions of prison rules for which Mr.Streeter was disciplined between-4-

1979 and 1997. On June 29, 1999, the trial court granted summary judgment to the defendant on the basis of laches.
The court reasoned that insofar as Mr. Streeter was seeking redress for alleg ed errors as much as twenty years old,

the State w as prejudiced by his delay in calling these alleged errors to the attention of the authorities. The court further held that an inmate wishing to challenge an

erroneous sentence credit calcul ation had to do so in a reasonable time, and stated that “six or eight months from the reception of

an erroneous ca

lculation is

deemed a reasonable tim

e period for the i

nmate to claim the discrepancy occurs.”
On September 22, 1999, Mr. Streeter fi led a M otion for Delayed Appeal, claiming that he didnot receive the court’s summary judgment order until September 15, 1999. He again relied upon an affidavit and documentation from the prison mail room,

where all incoming and outgoing legal mail is posted in a log. The cou rt subsequently

vacated its summar

y judgment o

rder under Rule 60.02, Tenn. R. Civ. P., and re-entered it on January 4, 2000. Mr. Streeter filed a timely notice of appeal from this judgment.
III. T HE A PPEAL
Mr. Streeter has consistently claimed that he has not received all thesentence cred its he is entitled to, but his grounds and argument have changed with each new pleading or motion. Since the trial court dismissed his Amended Complainton summary judgment, we need only address the arguments presented in that complaint and in his appeal briefs.
It appears that the

argument in

Mr. Streeter’s amended complaint was primarily based upon the destruction of

the sentence credit cards following the implementation of OBCIS. Mr. Streeter argued that TDOC was obligated to fully document all disciplinary infr actions that resultedin a loss of sentence credits, and

that any failure to meet those obligations would result in a presumption that the inmate involved had earned the maximum number of sentence reduction credits possible.
In support o f this argument, he relied upon the case of State ex rel Johnston v. McClellan , 87 Tenn. 52 (1 888), which involved the implementation of an 1885 “good time” statute. The Supreme C ourt held that the question of how much good time an inmate had earned could no t depend solely

on the memory

of the warden, bu

t required the ke

eping of a writte

n record:
“It is the duty of the Superintendent to keep, or have kept under his vigilant personal supervision, the record directed to be kept by the statute, and if he

fails to keep it the prisoner’s r

ight shall not b

e le ft to the uncertainty of treacherous memories and oral tes tim ony. In th e abs ence of t he re cord to t he co ntr ary, it will be conclusively presumed that he is entitled to the good time.”
87 Tenn. at 57.-5-

In the prese

nt case, howeve

r, the Departmen

t is notrelying upon one individual’s memory alone to establish the proper number of sentence credits the appellant is entitled to, b ut upon departmental computerized records that are in part derived from an

earlier manually-kept record, and in part by con

temporaneous en

trie s made with

in the regular c

ourse of the depa

rtment’s business. Therefore it does not appear to us that the presumption discussed in McClellan applies.
We note that the only evidence Mr. Streeter pre se nted to refute the affidavits of Ms. Whisman and of Ms. Claud, wa s his own affidavit

, with a worksheet h

e prepared con

taining his

own manual calculation of th

e number of cred

its he was entitled to. Mr. Streeter did not even claim that he participated

in any particular education programs or job placements prior to the implementation of OBCIS, but simply attempted to rely on the presumption discussed above. The standards for summary judgment place the initial burden of proof on the proponent of the motion, to prese

nt evidence whic

h indicates that the

re are no mater

ial facts in dispute and that it is entitled to judgment as a matter of law. Rule 56.03, Tenn. R. Civ. P. Once that burden is met, however, the burden shifts to the non-moving party to produce countervailing evidence

that would establish a genuine factual dispute. Byrd v. H all , 847 S.W.2d 208 (Tenn. 1993). “. . . [P]arties facing a summary judgment motion cannot rest on the mere allegation s or denial s in their p leadings butrather must respo

nd with appropria

te evidentiary

materials demonstrating th

at there is a

genuine issue for trial.” Bradley v. McLeod, 984 S.W.2d 929 (Tenn. Ct. App. 1998). Rule 56.05, T

enn. R. Civ. P.
Mr. Streeter’s affi davit merely repeats the allegations of his complaint and amounts to a general denial of the evidence presente d by the Depa rtment. We find that

it is not sufficient t

o withstand the defendant’s Motion for Summary Judgment, and we affirm the judgment of the trial court.
In his briefs on appeal, Mr. Streeter argued that the trial court erred in gra nting the Department

summary judgment on

the basis of laches. He claimed that since TDOC itself destroyed the manual records, any prejudice it may have suffered thereby resulted from its own actions, and t herefore laches did not apply. But since we have found that even in the absence of the origina l records, the evidence pr

esented by

the Department w

as sufficient to su

stain a Motion for

Summary Judgment, we need not decide here whether laches can be an appropriate de fense in a suit involving a grant or denial of sentence credits that is remote in time.
III.
The judgment of the trial co urt is af firmed. Remand this cause to the Chancery Court of Davidson County for further proceedings c

onsistent with this op

inion. Tax the costs on

appeal to the appellant, Jerome Streeter.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.