                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs April 10, 2000

             CHARLES WAYNE ROOKER v. DONAL CAMPBELL

                    Appeal from the Chancery Court for Davidson County
                      No. 99-946-III   Ellen Hobbs Lyle, Chancellor


                     No. M1999-01657-COA-R3-CV - Filed March 4, 2003


This appeal involves a dispute between a prisoner and the Department of Correction over his release
eligibility date. Dissatisfied with the response to his petition for a declaratory order, the prisoner
filed a petition for a declaratory judgment in the Chancery Court for Davidson County, asserting that
the extension of his release eligibility date violated the Department’s policy regarding punishment
for escape and the terms of his plea agreement. He also claimed that the Department had wrongfully
deprived him of sentence reduction credits. The trial court dismissed the petition, and the prisoner
has appealed. We affirm.

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

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.

Charles Wayne Rooker, Pikeville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and
Stephanie R. Reevers, Senior Counsel, for the appellee, Donal Campbell.

                                             OPINION

                                                  I.

       In 1985, Charles Wayne Rooker was convicted of first degree burglary, forgery, and robbery
with a deadly weapon. Based on a plea bargain, he was ordered to serve his three sentences
concurrently. Thus, his total effective sentence for these three crimes was twelve years. Mr. Rooker
was paroled in March 1987 but soon resumed his life of crime. He was convicted of second degree
murder and attempted prescription forgery and received consecutive sentences of twenty years and
one year respectively. These two sentences were ordered to run consecutively with his original 1985
sentences.

       Mr. Rooker resumed serving his original 12-year sentence from 1985 when he returned to
prison. In June 1990, he escaped from the Turney Center before he had completed serving that
sentence. He was recaptured in a matter of days. As a result of this escapade, Mr. Rooker was
convicted of felony escape and was also charged with violating prison disciplinary rules. He was
sentenced to one year for the felony escape. As punishment for the disciplinary offense, the
Department extended the release eligibility date on the sentences he was already serving by twenty
percent pursuant to Tenn. Dep’t Corr. Policy Index No. 502.02 (1996) (superseded 2000).

        Mr. Rooker did not agree with the Department’s application of Policy No. 502.02 because
he believed that it violated the plea agreement on his second degree murder conviction and because
he believed that he was being wrongfully deprived of approximately one year’s worth of sentence
credits that he had already earned. As he saw it, the Department exceeded its authority when it
“extended [his] current offense years past the parole date set by the trial court.” He petitioned the
Department for a declaratory ruling, and the Department eventually provided him with a written
explanation regarding its calculation of his release eligibility date.

        In April 1999, Mr. Rooker filed a complaint for declaratory judgment in the Chancery Court
for Davidson County, challenging the Department’s extension of his release eligibility date and
alleging that he had been wrongfully deprived of some of his sentence credits. The Department
responded by moving to dismiss the complaint for failure to state a claim. Both parties submitted
materials outside the pleadings. In September 1999, the trial court dismissed Mr. Rooker’s petition
after finding (1) that the extension of Mr. Rooker’s release eligibility date appropriately
encompassed all three of his consecutive sentences, (2) that by escaping, Mr. Rooker had forfeited
any expectation of becoming eligible for parole under the terms of his plea agreement, and (3) that
Mr. Rooker had not been deprived of any sentence credits as a result of his escape. Mr. Rooker has
appealed.

                                                            II.

        Although the trial court’s final order speaks in terms of granting the Department’s motion
to dismiss, in reality the motion should be construed as one for summary judgment because the
parties submitted, and the trial court apparently considered, evidentiary materials beyond the
pleadings.1 Accordingly, we will review the judgment using the principles applicable to reviewing
orders granting motions for summary judgment. Sutton v. Davis, 916 S.W.2d 937, 938 (Tenn. Ct.
App. 1995); D. T. McCall & Sons v. Seagraves, 796 S.W.2d 457, 459-60 (Tenn. Ct. App. 1990).

        The standards for reviewing summary judgments on appeal are well-settled. A summary
judgment is proper in virtually any civil case that can be resolved on the basis of legal issues alone.
Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993);
Church v. Perales, 39 S.W.3d 149, 156 (Tenn. Ct. App. 2000). Because a summary judgment
involves an issue of law rather than an issue of fact, Planters Gin Co. v. Federal Compress &
Warehouse Co., 78 S.W.3d 885, 889 (Tenn. 2002), an order granting a summary judgment is not
entitled to a presumption of correctness on appeal. Pero’s Steak & Spaghetti House v. Lee, 90
S.W.3d 614, 620 (Tenn. 2002); Scott v. Ashland Healthcare Ctr., Inc., 49 S.W.3d 281, 285 (Tenn.
2001).


         1
           Tr ial courts must co nvert T enn. R . Civ. P. 12.0 2(6) motions to T enn. R . Civ. P. 56 m otions if they do not
exclude extraneous evidentiary ma terials sub mitted by either party. Souder v. Health Partners, Inc., 997 S.W.2d 140,
144 (Tenn. Ct. App. 1998 ); Pacific Eastern Corp. v. Gulf Life Holding Co., 902 S.W .2d 946, 952 (Tenn. Ct. App. 1995 ).
In this case, both parties subm itted evid entiary m aterials for the co urt’s consideration.

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        Appellate courts do not employ the standard of review in Tenn. R. App. P. 13(d) when
reviewing an order granting a summary judgment. Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn.
1997); Estate of Kirk v. Lowe, 70 S.W.3d 77, 79-80 (Tenn. Ct. App. 2001). Rather, we determine
for ourselves whether the moving party has satisfied the requirements of Tenn. R. Civ. P. 56. Hunter
v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Cantrell v. DeKalb County, 78 S.W.3d 902, 905
(Tenn. Ct. App. 2001). In this process, we must consider the evidence in the light most favorable
to the nonmoving party and resolve all inferences in the nonmoving party's favor. Godfrey v. Ruiz,
90 S.W.3d 692, 695 (Tenn. 2002); Johnson v. LeBonheur Children’s Med. Ctr., 74 S.W.3d 338, 342
(Tenn. 2002).

        Once the moving party demonstrates that it has satisfied Tenn. R. Civ. P. 56’s requirements,
the non-moving party must demonstrate how these requirements have not been satisfied. Bain v.
Wells, 936 S.W.2d 618, 622 (Tenn. 1997). Mere conclusory generalizations will not suffice. Psillas
v. Home Depot, U.S.A., Inc., 66 S.W.3d 860, 864 (Tenn. Ct. App. 2001). Non-moving parties may
deflect a summary judgment motion challenging their ability to prove an essential element of their
case by (1) pointing to evidence either overlooked or ignored by the moving party that creates a
factual dispute, (2) rehabilitating evidence challenged by the moving party, (3) producing additional
evidence that creates a material factual dispute, or (4) submitting an affidavit in accordance with
Tenn. R. Civ. P. 56.07 requesting additional time for discovery. Staples v. CBL & Assocs., Inc., 15
S.W.3d 83, 89 (Tenn. 2000); McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.
1998). A non-moving party who fails to carry its burden faces summary dismissal of the challenged
claim because, as our courts have repeatedly observed, the “failure of proof concerning an essential
element of the cause of action necessarily renders all other facts immaterial.” Alexander v. Memphis
Individual Practice Ass’n, 870 S.W.2d 278, 280 (Tenn. 1993); Strauss v. Wyatt, Tarrant, Combs,
Gilbert & Milom, 911 S.W.2d 727, 729 (Tenn. Ct. App. 1995).

                                          III.
             THE APPLICATION O F TENN. DEP’T CORR . POLICY INDEX NO . 502.02

        Mr. Rooker’s principal argument on appeal is that the Department misconstrued and
misapplied its own policy by extending the cumulative release date applicable to his three
consecutive sentences. He insists that the Department should have extended the release eligibility
date for only the 12-year sentence he was serving when he escaped. According to Mr. Rooker, the
Department should not have altered the release ineligibility periods for his two consecutive sentences
for second degree murder and attempted prescription forgery.

         Tenn. Code Ann. § 40-35-501(c) (1997) provides that Range I standard offenders like Mr.
Rooker will ordinarily be eligible for release from incarceration to parole “after service of thirty
percent of the actual sentence imposed less sentence credits earned and retained.” That release
eligibility date, however, is not absolute. It is conditioned on the prisoner’s good behavior while in
prison. Tenn. Code Ann. § 40-35-501(k). If an offender escapes while incarcerated, his or her
release eligibility date is pushed back “so as to increase the total amount of time an inmate must
serve before becoming eligible for parole.” Tenn. Code Ann. § 40-35-501(k).

        For disciplinary infractions such as escape, the Tennessee General Assembly has delegated
to the Commissioner of Correction discretion to promulgate regulations to lengthen the amount of

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time a prisoner must serve before becoming parole eligible. Tenn. Code Ann. § 40-35-501(k). The
Department’s regulation on that subject, Tenn. Dep’t Corr. Policy Index No. 502.02, provides:

                   In all cases in which an inmate is found guilty of the disciplinary
                   offense of escape, including escape from custody and failure to return
                   from a pass or furlough, in addition to any other punishment imposed,
                   the offender’s parole or release eligibility date shall be extended by
                   adding thereto an additional twenty percent (20%) of the offender’s
                   original maximum sentence, or by extending the inmate’s parole or
                   release eligibility date to the sentence expiration date, whichever is
                   less.

        In the simplest case – where a prisoner is serving a single sentence for one offense – the
application of the Department’s regulation punishing escape is straightforward. In that circumstance,
the prisoner has one sentence with its accompanying release eligibility date which the Department
can push back by twenty percent. But what about when a prisoner is serving multiple consecutive
sentences? As a matter of law, the prisoner is not serving all those sentences simultaneously but
rather is serving them one at a time in series. Kay v. United States, 279 F. 2d 734, 735 (6th Cir.
1960). Under consecutive sentencing the prisoner serves the appropriate amount of time on each
sentence and then begins to serve the next sentence until all the consecutive sentences have been
served. Howell v. State, 569 S.W.2d 428, 431-32 (Tenn. 1978).

        Even under consecutive sentencing, though there may be multiple sentences, there is only one
release eligibility date. A prisoner’s release eligibility date is the earliest date that he or she will be
eligible for release or parole as determined by time served and any sentence credits. Tenn. Code
Ann. § 40-35-501(k); Tenn. Dep’t Corr. Policy Index No. 505.01(IV)(L) (2001). A prisoner serving
consecutive sentences is not eligible for early release until he or she has served the required amount
of time on all of the separate sentences. Good behavior may give a prisoner a head start on
beginning the next consecutive sentence; however, even in that case, no release from custody can
occur until after completion of an appropriate amount of time on the last consecutive sentence.
Accordingly, Tenn. Code Ann. § 40-35-501(j) expressly provides that for consecutive sentences, the
periods of ineligibility for release are calculated for each sentence then added together to establish
the “release eligibility date for the consecutive sentences.”

        Under the Department’s policy, it is the “release eligibility date for the consecutive
sentences” that shall be extended as punishment for escape. That is exactly what the Department did
here. Counting Mr. Rooker’s original 12-year sentence, as well as his subsequent consecutive 20-
year and 1-year sentences, he started out with an effective sentence of thirty-three years to be served
at thirty percent before he would become release eligible. After convicting Mr. Rooker of the
disciplinary offense of escape, the Department lengthened his release eligibility date by twenty
percent. Consequently, he must serve fifty percent of his thirty-three years before he will be eligible
for parole from custody. 2



        2
            Mr. Rooker may, of course, reduce ev en this time through earning sentence reduction credits.

                                                          -4-
        The Department’s actions in this case follow both the language and the obvious intent of
Tenn. Dep’t Corr. Policy Index No. 502.02. Therefore, we reject Mr. Rooker’s argument that the
Department should have extended his ineligibility for release only on his original 12-year sentence.
Mr. Rooker’s release eligibility date was not pegged just to that sentence; it was a function of his
total effective sentence which included his other consecutive sentences for second degree murder
and attempted prescription forgery. Accordingly, we affirm the trial court’s judgment for the
Department.3

                                             IV.
                      THE ALLEGED BREACH OF THE PLEA BARGAIN AGREEMENT

        Mr. Rooker also insists that the Department violated the State’s plea agreement by extending
his parole eligibility date. This argument is just plain wrong. When Mr. Rooker entered his plea
agreement on the second degree murder charge, he was on notice that his release eligibility date was
conditioned on good behavior and that it could be deferred for violation of prison rules. Tenn. Code
Ann. § 40-35-501. The State is under no obligation to spell out to criminal defendants all the
possible consequences of misbehavior behind the walls. The Department unquestionably has the
authority to extend a prisoner’s release eligibility date for violation of disciplinary rules. As long
as the Department’s action does not lengthen the sentence itself, the Department’s decision to extend
a prisoner’s release eligibility date does not violate a plea bargain agreement. Britt v. Campbell,
M2000-01423-COA-R3-CV, 2001 WL 605104, at *2-3 (Tenn. Ct. App. June 5, 2001), perm. app.
denied (Tenn. Oct. 29, 2001); Smith v. Campbell, 995 S.W.2d 116, 117-19 (Tenn. Ct. App. 1999);
Taylor v. Reynolds, 914 S.W.2d 516, 518 (Tenn. Ct. App. 1995); Rowland v. Bradley, 899 S.W.2d
614, 615 (Tenn. Ct. App. 1994).

                                            V.
                   THE ALLEGED DEPRIVATION OF SENTENCE REDUCTION CREDITS

       As a final matter, Mr. Rooker asserts that the Department removed some of his sentence
reduction credits when it punished him for escaping. The record refutes that contention. While the
prison disciplinary committee’s judgment document shows that the committee recommended
extending Mr. Rooker’s release eligibility date, it shows just as clearly that the board did not
recommend taking away any of his sentence reduction credits. The Department’s March 1999
response to Mr. Rooker’s request for a declaratory order confirmed that it had not reduced his
sentence reduction credits. The Department wrote:

                   A record verification by Sentence Information Services (SIS)
                   personnel reveals that no credits were removed due to the Escape
                   felony. The only adjustment was an extension of the Release
                   Eligibility Date (RED) by 20%. In addition, case # 8405661 and case
                   # 8705339 were extended by 20% as well due to escape.




         3
           W e may affirm on different reaso ning than that relied on by the trial court. Continental Cas. Co. v. Sm ith, 720
S.W .2d 4 8, 50 (Te nn. 19 86); GR W E nters., In c. v. Davis, 797 S.W .2d 606, 612 n.5 (Tenn. Ct. App. 1990 ).

                                                            -5-
               The 62 Prisoner Performance Sentence Credits (PPSC) and 491
               Prisoner Sentence Reduction Credits (PSRC) were credited to cases
               # 8405660, # 8405661 and # 8500938 on 4/1/85.

               Finally, case # 8705339 is consecutive to #8405661 and begins at
               Expiration (EXP) which was 5/14/94. Also, 896 PSRC and 309
               Pretrial Jail Credits (PTJC) have been applied to your sentence
               calculation. Thus, your current sentence structure is valid and correct.

        Mr. Rooker essentially asserts that the Department’s calculation must be “flawed” because
the sentence expiration date for his original 1984 concurrent sentences plus his two subsequent
consecutive sentences does not seem mathematically correct to him. He also points out that the
Department has provided him with three different sentence summaries containing a different
expiration date for his 33-year effective sentence.

        The difference in the sentence summaries, without more, is not prima facie evidence that the
Department has removed or withheld or miscalculated or misapplied Mr. Rooker’s sentence credits.
These were prepared at different times. In fact, two of them were generated nine years apart. Over
time, Mr. Rooker has been earning sentence credits, and those credits have had the effect of
hastening his sentence expiration date. Tenn. Code Ann. § 41-21-236(b) & (j) (1997); Rowell v.
Dutton, 688 S.W.2d 474, 476 (Tenn. Crim. App. 1985). The sentence summaries show different
sentence expiration dates because they reflect the different amounts of sentence credits Mr. Rooker
had earned during his incarceration. Mr. Rooker must point to something else to create a dispute of
fact precluding summary judgment on this issue.

        Under the heading “Precise Relief Sought,” Mr. Rooker asks this court to “restore (421)
sentence reduction credits to the Appellant’s sentence summary.” This record provides us with no
basis for finding that he has been deprived of any of his sentence reduction credits. We accordingly
affirm the trial court’s dismissal of this part of Mr. Rooker’s declaratory judgment complaint.

                                                  IV.

         We affirm the judgment dismissing the petition for declaratory judgment and remand the case
to the trial court for further proceedings consistent with this opinion. We tax the costs of this appeal
to Charles Wayne Rooker for which execution, if necessary, may issue. We also find that Mr.
Rooker’s complaint and subsequent appeal are frivolous in accordance with Tenn. Code Ann. § 41-
21-807(c) (Supp.2002) and Tenn. Code Ann. § 41-21-816(a)(1) (1997).



                                               _____________________________
                                               WILLIAM C. KOCH, JR., JUDGE




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