                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                            Assigned on Briefs October 12, 1999

           CHARLES CLAY YOUNG v. DONAL CAMPBELL, ET AL.

                    Appeal from the Chancery Court for Davidson County
                       No. 98-2735-II   Carol L. McCoy, Chancellor



                  No. M1999-02788-COA-R3-CV - Filed September 24, 2002


This appeal involves a dispute between a prisoner and the Tennessee Department of Correction
regarding the calculation of his sentence expiration date. After the Department declined to give him
credit for the time he had been on probation for a prior arson sentence, the prisoner filed suit against
the Commissioner of Correction in the Chancery Court for Davidson County seeking 1,568 days of
additional sentence credits. The trial court granted the Commissioner’s motion for summary
judgment after concluding that the Department’s calculation of the prisoner’s sentence was
consistent with the sentencing court’s orders and that it lacked jurisdiction to review the actions of
the sentencing court. The prisoner has appealed. We have determined that the trial court properly
dismissed the prisoner’s petition for certiorari.

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

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

Charles Clay Young, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Kimberly
J. Dean, Deputy Attorney General, Nashville, Tennessee, for the appellees, Donal Campbell, et al.

                                              OPINION

                                                   I.

       In 1989, Charles Clay Young was convicted of arson in the Criminal Court for White County
and, in January 1990, was sentenced to six years in a community-based alternative corrections
program. On August 16, 1990, the trial court, apparently without a hearing, entered an order
removing Mr. Young from the community-based program and placing him on supervised probation.

       Unfortunately, Mr. Young had not learned the error of his ways. In October 1994, he was
convicted of two counts of solicitation to commit first degree murder and received two consecutive
ten-year sentences. The sentencing court also revoked Mr. Young’s probation on his arson
conviction and ordered him to serve the remainder of his six-year arson sentence before beginning
to serve his two consecutive ten-year sentences.

        When the Department of Correction originally calculated Mr. Young’s new sentence
expiration date, it neglected to give him credit for the 210 days for the time he had spent in the
community corrections program in 1990. As a result of a suit by Mr. Young in 1998, the Department
corrected its error by crediting him with 210 days against his total sentence.

        Mr. Young then decided to press the point further by filing a second lawsuit in the Chancery
Court for Davidson County against the Commissioner of Correction, claiming that he was entitled
to an additional 1,568 days of credit against his arson sentence because he had been in the
community corrections program for his entire arson sentence. The Commissioner moved for a
summary judgment supported by an affidavit of a sentence technician stating that Mr. Young was
not entitled to additional sentence credits because the August 16, 1990 order placing him on
probation had removed him from the community corrections program.1 Mr. Young responded by
labeling the August 16, 1990 order as “fraudulent” and by requesting additional time to discover
information regarding the circumstances surrounding the entry of the August 16, 1990 order. The
Commissioner replied that Mr. Young already possessed copies of all the records from the White
County proceedings and that the Department had calculated his sentence based on these records.

        In June 1999, the trial court entered an order granting the Commissioner’s summary
judgment motion. The trial court concluded that the Department was required to compute sentences
using the records of the sentencing court and that prisoners were not entitled to sentence credits for
time spent on probation. Because the sentencing court’s records showed that Mr. Young had been
on probation since August 1990, the trial court concluded that the Department’s calculation of his
sentence expiration date was correct. The trial court also determined that it lacked jurisdiction to
resolve Mr. Young’s dispute with the sentencing court regarding its August 16, 1990 order.
Accordingly, the trial court declined to grant Mr. Young additional time for discovery and dismissed
his certiorari petition. Mr. Young has appealed.

                                            II.
                THE DENIAL OF MR . YOUNG’S MOTION FOR ADDITIONAL DISCOVERY

        Mr. Young takes issue with the trial court’s decision to grant the Commissioner’s motion for
summary judgment without first giving him an opportunity to obtain additional discovery regarding
the entry of the August 16, 1990 order removing him from the community corrections program and
placing him on probation. He insists that he should have been permitted to discover this information
to demonstrate that the sentencing court did not afford him a hearing prior to the entry of that order.



         1
            A prisoner is entitled to credit against his or her sentence for time spent in community corrections but is not
entitled to similar credit for time sp ent on probation. Te nn. Co de A nn. § 4 0-36 -106(e)(3)(B ) (Sup p. 20 01); State v.
Go dwin, No. 03C01-9710-CC-00479, 1998 W L 827215, at *1 (Tenn. Crim. App. Dec. 1, 1998) (No Tenn. R. App. P.
11 application filed ); You ng v. State, 539 S.W .2d 8 50, 8 54-5 5 (T enn. C rim. App. 1 976 ).

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We have determined that the trial court did not err by denying Mr. Young’s request for further
discovery.

        Litigants may use a motion for summary judgment to challenge their adversaries to put up
or shut up on a critical issue in a case. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.
1989). A moving party will be entitled to a summary judgment if it can demonstrate that the non-
moving party will be unable to prove an essential element of its case on which it will bear the burden
of proof at trial. Byrd v. Hall, 847 S.W.2d 208, 213 (Tenn. 1993); Solomon v. FloWarr Mgt., Inc.,
777 S.W.2d 701, 706 (Tenn. Ct. App. 1989). A non-moving party faced with this sort of summary
judgment motion may invoke Tenn. R. Civ. P. 56.07 to request additional time to discover the
information needed to respond. Motions under Tenn. R. Civ. P. 56.07 address themselves to the trial
court’s discretion. Harden v. Danek Med., Inc., 985 S.W.2d 449, 453-54 (Tenn. Ct. App. 1998);
Masters by Masters v. Rishton, 863 S.W.2d 702, 707 (Tenn. Ct. App. 1992). Accordingly, we
review the trial court’s decision on these motions for abuse of discretion. Hughes v. Effler, No.
E2000-03147-COA-R3-CV, 2001 WL 881352 at *1 (Tenn. Ct. App. Aug. 7, 2001) perm. app.
denied (Tenn. Dec. 27, 2001).

        Once the Commissioner moved for summary judgment, the focus of Mr. Young’s lawsuit
shifted. It became a collateral attack on the August 16, 1990 order. A party seeking to collaterally
attack a judgment must show that the challenged judgment was obtained by fraud or that the court
rendering it lacked jurisdiction. Submitting an affidavit contradicting the recitals in a judgment or
order is not enough to create a triable issue about the judgment’s validity. Glenn v. Gordon Constr.,
Inc., No. M2000-01805-COA-R3-CV, 2002 WL 598553 at *5 (Tenn. Ct. App. Apr. 19, 2002) (No
Tenn. R. App. P. 11 application filed). A judgment of a court of general jurisdiction is conclusively
presumed valid against collateral attack unless either the record from the court that rendered the
judgment or the judgment on its face shows that the judgment or order is invalid. Giles v. State ex
rel. Giles, 191 Tenn. 538, 545, 235 S.W.2d 24, 28 (1950); Dixie Sav. Stores, Inc. v. Turner, 767
S.W.2d 408, 409-10 (Tenn. Ct. App. 1988).

         Mr. Young believes that the August 16, 1990 order is “fraudulent” because the trial court did
not conduct a hearing before entering it. The order itself provides some basis for concluding that
the trial court did not conduct a hearing before entering the order because the order does not contain
the customary recital that a hearing was held. However, no hearing was necessary. The sentencing
court retains authority to alter or amend a criminal defendant’s sentence once the defendant is placed
in a community corrections program. Tenn. Code Ann. § 40-36-106(e)(2); State v. Melton, No.
01C01-9612-CC-00497, 1998 WL 113997, at *3 (Tenn. Crim. App. Mar. 12, 1998) (No Tenn. R.
App. P. 11 application). The court must hold a hearing before re-sentencing a defendant to a harsher
form of punishment. State v. Samuels, 44 S.W.3d 489, 493-94 (Tenn. 2001). However, a sentencing
court is not required to conduct a hearing before reducing a defendant’s sentence. Tenn. R. Crim.
P. 35; State v. Hodges, 815 S.W.2d 151, 153-55 (Tenn. 1991).

        Accordingly, the August 16, 1990 order is not invalid simply because the trial court did not
conduct a hearing before entering it. There is nothing else on the face of the order that undermines
its presumptive validity. Granting Mr. Young additional time to conduct discovery into the
circumstances surrounding the entry of the order would have yielded no additional information

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relevant to opposing the Commissioner’s motion for summary judgment. Therefore, the trial court
properly addressed the commissioner’s motion without first affording Mr. Young time to conduct
additional discovery.

                                                III.
                               THE DISMISSAL OF MR . YOUNG’S PETITION

         Mr. Young concedes that the summary judgment is appropriate if his challenge to the
sentencing court’s August 16, 1990 order fails.2 We have determined that the August 16, 1990 order
is valid on its face and that the trial court did not err by declining to grant Mr. Young additional time
to discover evidence to oppose the Commissioner’s motion. Because the Department must calculate
sentences based on the sentencing documents, we have determined that the trial court properly
concluded that Mr. Young was not entitled to 1,568 additional days of sentence credits against his
arson sentence.

                                                         IV.

        We affirm the judgment dismissing Mr. Young’s petition for common-law writ of certiorari
and remand the case to the trial court for whatever further proceedings may be necessary, consistent
with this opinion. We tax the costs of this appeal to Mr. Young for which execution, if necessary,
may issue. We also find that the complaint and subsequent appeal are frivolous for the purposes of
Tenn. Code Ann. § 41-21-807(c) (Supp. 2001) and Tenn. Code Ann. § 41-21- 816(a)(1) (1997).


                                                                _____________________________
                                                                WILLIAM C. KOCH, JR., JUDGE




        2
            He states:

        Had [I] conced ed that the document was in fact a true and corre ct reco rd from the W hite Co unty
        Court, there would be no genuine issue to litigate before any court. Since [I] had no knowledge of this
        doc ument, or any prior knowledge of the Community Corrections Sentence being Revoked, and no
        knowledge of any actions being taken to Revoke [me] from the Comm unity Corrections Sentence, the
        only obvious conclusion . . . is that the do cument is fraud ulent.



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