      IN THE COURT OF APPEALS OF TENNESSEE
           MIDDLE SECTION AT NASHVILLE



LARRY D. TURNLEY,              )
                               )
      Plaintiff/Appellant,     )
                               )   Davidson Chancery
                               )   No. 94-3602-II
VS.                            )
                               )   Appeal No.
                               )   01A01-9601-CH-00015
TENNESSEE DEPARTMENT OF        )
CORRECTION,                    )
                               )     FILED
      Defendant/Appellee.      )
                                     October 17, 1997

                                    Cecil W. Crowson
                                   Appellate Court Clerk

  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
                                   Criminal Justice Division




                  AFFIRMED AND REMANDED




                                   WILLIAM C. KOCH, JR., JUDGE
                                      OPINION

       This appeal involves a dispute over a state prisoner’s release eligibility date.
After the Tennessee Department of Correction did not respond to his request for a
declaratory ruling, the prisoner filed a declaratory judgment action in the Chancery
Court for Davidson County seeking a declaration that his release eligibility date was
September 2000. The Department filed a motion for summary judgment supported
by an affidavit setting out its release eligibility date calculations. After the trial court
dismissed his petition, the 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.


       Larry D. Turnley is currently incarcerated in the Morgan County Regional
Correctional Facility following a lengthy criminal career. In March 1975 he received
a 16 to 30-year prison sentence after being convicted of grand larceny, second degree
burglary, robbery, and four counts of armed robbery. Mr. Turnley was paroled in
April 1982 but was returned to custody seven months later after committing another
armed robbery. He was convicted of this offense and received another 35-year
sentence to be served consecutively with his earlier sentences.


       Mr. Turnley escaped from custody in September 1983. Before he was captured
in Virginia, he committed an aggravated robbery in Tennessee and other crimes in
Virginia. While still in Virginia’s custody, he agreed to plead guilty to the Tennessee
aggravated robbery and escape charges and received 8-year and 1-year sentences to
be served concurrently with each other and consecutively with his earlier Tennessee
sentences.1 He was eventually released to Tennessee’s custody and returned to the
Davidson County Jail on April 14, 1992. As a result of his later convictions for

       1
          Mr. Turnley later filed a petition for post-conviction relief challenging the plea bargain
agreement because of the manner in which the Department of Correction was calculating these
sentences. The Court of Criminal Appeals reversed the summary 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, 1995). The record contains no evidence concerning the
outcome or status of this proceeding.

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armed robbery, escape, and aggravated robbery, Mr. Turnley is now serving a 16 to
73-year sentence.


      After being informed that he would not be eligible to be considered for release
until 2007, Mr. Turnley sought a declaratory ruling from the Department of
Correction concerning its calculation of his sentence eligibility date. When the
Department declined to issue a ruling, Mr. Turnley filed a petition for declaratory
judgment pursuant to Tenn. Code Ann. § 4-5-225 (Supp. 1997) (formerly Tenn. Code
Ann. § 4-5-224) in the Chancery Court for Davidson County. The Department
responded with a motion for summary judgment supported by an affidavit of the
manager of Sentence Information Services detailing the Department’s calculations of
Mr. Turnley’s release eligibility date. Mr. Turnley responded by taking issue with the
Department’s calculations. The trial court granted the Department’s motion after
determining that there were no genuine disputes concerning the material facts and that
the Department was entitled to a judgment as a matter of law.


                                          II.


      The sole issue on this appeal is whether the Department was entitled to a
judgment in its favor as a matter of law based on the evidence submitted in support
of and in opposition to its motion for summary judgment. As we understand Mr.
Turnley’s pro se brief and pleadings, he insists that the Department was not entitled
to a judgment as a matter of law because the record contains material factual disputes
with regard to the percentage of his later armed robbery, aggravated robbery, and
escape sentences he must serve before being eligible for release classification status
and to the calculation of his sentence credits.


      The party seeking a summary judgment has the initial burden of satisfying the
trial court that there are no genuine disputed factual issues for trial and that it is
entitled to a judgment as a matter of law. See Wyatt v. A-Best, Co., 910 S.W.2d 851,
854 (Tenn. 1995). Once the moving party has filed a properly supported motion, the
burden shifts to the non-moving party to demonstrate by affidavits or other
appropriate evidentiary materials that there is a genuine, material factual dispute

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warranting a trial on the merits. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993).
Non-moving parties should not take a motion for summary judgment lightly, see
Fowler v. Happy Goodman Family, 575 S.W.2d 496, 499 (Tenn. 1978), and should
not rely on the denials or allegations in their pleadings to establish a material factual
dispute that will be sufficient to defeat a summary judgment motion. See Tenn. R.
Civ. P. 56.06.


         Mr. Turnley’s response to the Department’s motion for summary judgment
does not set forth specific facts showing that there is a genuine issue for trial. Rather,
it is simply a restatement of the allegations in his earlier pleadings and other papers
filed with the trial court. His assertions about the circumstances of his incarceration
in Virginia and the terms and conditions of his sentences for aggravated robbery 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 entitled to these credits until he earns them and that he is not entitled to
sentence credits during the “dead time” when he had escaped. See Tenn. Code Ann.
§ 41-21-236(a)(3) (1997).


                                           III.


         We affirm the summary judgment dismissing Mr. Turnley’s petition and
remand the case to the trial court for whatever further proceedings are required. We
tax the costs of this appeal to Larry D. Turnley for which execution, if necessary, may
issue.




                                                  ____________________________
                                                  WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION




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__________________________________
SAMUEL L. LEWIS, JUDGE




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