Hugh A. Niceley v. Tennessee Department Of Correction

11/10/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 1, 2020
HUGH A. NICELEY v. TENNESSEE DEPARTMENT OF CORRECTION
Appeal from the Chancery Court for Davidson County
No. 18-0957-I Patricia Head Moskal, Chancellor
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No. M2019-02156-COA-R3-CV
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This appeal arises from the summary dismissal of an inmate’s petition for declaratory
judgment on the calculation of his sentence expiration date. The inmate contended that
each of his consecutive sentences should have begun automatically upon the expiration of
the prior sentence’s period of ineligibility for release. The trial court found the material
facts were undisputed and concluded that the Tennessee Department of Correction
correctly calculated the sentences. Finding no error, we affirm the judgment of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which JOHN W.
MCCLARTY and ARNOLD B. GOLDIN, JJ., joined.
Hugh A. Niceley, Wartburg, Tennessee, Pro Se.
Thomas Jon Aumann, Assistant Attorney General, Nashville, Tennessee, for the appellee,
Tennessee Department of Correction.
MEMORANDUM OPINION1
On May 13, 1994, Hugh Niceley (“Petitioner”) was incarcerated after being found
guilty of aggravated rape, aggravated sexual battery, and the rape of a child. One month
1
The Court, with the concurrence of all judges participating in the case, may affirm, reverse or
modify the actions of the trial court by memorandum opinion when a formal opinion would have no
precedential value. When a case is decided by memorandum opinion it shall be designated
“MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason
in a subsequent unrelated case.
later, the trial court sentenced Petitioner to the custody of the Tennessee Department of
Correction (“the Department”) for a total of 56 years. The court ordered Petitioner to serve
the sentences in four consecutive terms: the first for 15 years; the second for 15 years; the
third for eight years; and the fourth for 15 years.2 As a Range I offender, Petitioner would
be eligible for parole after serving 30% of each sentence.
In 1999, the trial court amended Petitioner’s sentence for child rape by clarifying
that Petitioner was required to serve 100% of his sentence for child rape to comply with
Tenn. Code Ann. § 39-13-523.3
In or around 2003, Petitioner filed a petition for post-conviction relief, alleging
ineffective assistance of counsel. In 2006, the trial court granted the petition and ordered a
new trial. Shortly thereafter, Petitioner was released on bond. In February 2008, however,
the Court of Criminal Appeals reversed the trial court’s order, and Petitioner’s bond was
revoked. See Nicely v. State, No. M2006-01892-CCA-R3-PC, 2008 WL 544600, at *5
(Tenn. Crim. App. Feb. 22, 2008).
Several years later, Petitioner moved to set aside the 1999 amended judgment for
child rape, arguing that it was illegal. The trial court determined that Petitioner was
required by statute to serve 100% of the sentence and denied the motion. The Court of
Criminal Appeals affirmed the decision. See State v. Niceley, No. M2017-02535-CCA-R3-
CD, 2019 WL 413741, at *2 (Tenn. Crim. App. Feb. 1, 2019).
Petitioner commenced this action pro se in September 2018 by filing a petition for
declaratory judgment in the Davidson County Chancery Court. Petitioner contended that
the Department made various errors in calculating his sentence, and he asserted that his last
sentence would expire in October 2018. The Department opposed the Petition, contending
Petitioner was still serving his third prison term.
In May 2019, the Department moved for summary judgment. Both parties relied on
copies of Petitioner’s judgment sheets and records from the Tennessee Offender
Management Information System (“TOMIS”). In addition, the Department produced the
affidavit of Amber Phillips, Assistant Director of the Department’s Sentence Management
Services. Ms. Phillips explained, inter alia, that the Department would not know the end
date for Petitioner’s fourth prison term until the Tennessee Board of Parole determined
“how much of [the third term] . . . would have to be served.”
2
Petitioner was originally convicted on seven counts of aggravated rape but four were set aside on
appeal. See State v. Nicely, No. 01C01-9506-CC-00160, 1996 WL 233985, at *5 (Tenn. Crim. App. May
9, 1996). The length and sequence of his prison terms were not altered by the reversal. Id.
3
Tennessee Code Annotated § 39-13-523 provides in relevant part that “persons convicted of rape
of a child . . . . shall be required to serve the entire sentence imposed.” Id. § 523(a)(2) and (b).
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In its Memorandum and Order of November 4, 2019, the trial court found no dispute
over the material facts, determined that the Department was entitled to judgment as a matter
of law, and entered judgment accordingly. This appeal followed.
ISSUES
Petitioner raises four issues on appeal:
(1) Whether the first sentence became effective on the date the district
attorney filed the judgment, or whether it became effective on the date
calculated by the Department?
(2) Whether either the Department or the trial court had jurisdiction over the
amended judgment for count 9?
(3) Whether the Board of Parole conducted custodial parole hearings on
counts 1, 2, 3, and 8, without legal authority and jurisdiction of those
counts?
(4) Whether TDOC correctly calculated the appellant’s sentences?
STANDARD OF REVIEW
This court reviews a trial court’s decision on a motion for summary judgment de
novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Accordingly, this court must make a fresh
determination of whether the requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.
We consider the evidence in the light most favorable to the nonmoving party and draw all
reasonable inferences in that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn.
2002).
Courts should grant summary judgment when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. When the party moving for summary
judgment “does not bear the burden of proof at trial, the moving party may satisfy its
burden of production either (1) by affirmatively negating an essential element of the
nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s evidence at
the summary judgment stage is insufficient to establish the nonmoving party’s claim or
defense.” Rye, 477 S.W.3d at 264 (emphasis in original).
If the moving party satisfies its burden of production, “the nonmoving party may
not rest on the allegations or denials in its pleadings.” Id. at 265. Instead, the nonmoving
party must respond with specific facts showing there is a genuine issue for trial. Id. A fact
is material “if it must be decided in order to resolve the substantive claim or defense at
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which the motion is directed.” Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). A “genuine
issue” exists if “a reasonable jury could legitimately resolve that fact in favor of one side
or the other.” Id.
ANALYSIS
It is the Department’s responsibility “to calculate sentences in accordance with the
sentencing court’s judgment and with applicable sentencing statutes.” Bonner v. Tennessee
Dep’t of Correction, 84 S.W.3d 576, 581–82 (Tenn. Ct. App. 2001) (citations omitted).
“[T]he courts’ interest in sentence calculation issues is simply ‘in seeing to it that the law
is properly applied.’” Id. at 582.
I. EFFECTIVE DATE
Petitioner’s first issue concerns the date that his first sentence began to run. When
calculating his sentences, the Department used a “sentence effective date” of May 13,
1994.4 Petitioner contends that his sentence did not “commence” until his judgments
became final in February 1995; however, Petitioner does not dispute that he received credit
for the time he served before and after February 1995. Accordingly, if identifying May 13,
1994, as the sentence effective date was an error, the error was immaterial, and “appellate
courts ‘will not reverse for immaterial errors.’” Arnold v. Ford, No. 01-A-01-9505-CV-
00203, 1995 WL 611280, at *4 (Tenn. Ct. App. Oct. 19, 1995) (quoting State v. Delinquent
Taxpayers, 167 S.W.2d 690, 693 (Tenn. Ct. App. 1942)).
II. AMENDED JUDGMENT
Next, Petitioner contends that both the Department and the trial court lacked
“jurisdiction of” the 1999 amended judgment. This argument is not only immaterial, but it
is also barred by the doctrine of res judicata. See Jackson v. Smith, 387 S.W.3d 486, 491
(Tenn. 2012) (“The doctrine of res judicata or claim preclusion bars a second suit between
the same parties or their privies on the same claim with respect to all issues which were, or
could have been, litigated in the former suit.” (citations omitted)). As stated, the Court of
Criminal Appeals ruled that Petitioner must serve 100% of his sentence for child rape. See
Niceley, 2019 WL 413741, at *2 (“[I]t is without question the sentence in Count 9 for . . .
was to be served at 100 percent.”). Accordingly, the amended judgment did not change the
length or sequence of Petitioner’s prison terms, only Petitioner’s eligibility for parole.
4
Petitioner was sentenced under both the Criminal Sentence Reform Act of 1982 and the Criminal
Sentence Reform Act of 1989. For the purposes of this case, there is no material difference between the
1982 and 1989 acts.
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III. BOARD OF PAROLE HEARINGS
Petitioner’s third issue regards the jurisdiction of the Board of Parole to conduct
“custodial parole” hearings. Like the first two issues, this issue is immaterial to whether
Petitioner was entitled to be released in October 2018.
According to Ms. Phillips, custodial parole hearings are provided to inmates who
“have a sentence of 100% consecutive to a sentence with a release eligibility date.” The
legislature has delegated authority to the Board of Parole to determine the date an inmate
will begin service of a consecutive sentence when the inmate has been “sentenced to
consecutive sentences which require custodial parole consideration.” Tenn. Code Ann.
§ 40-20-110(b)(1).
Petitioner had three parole hearings prior to October 2018 and was denied parole at
all three hearings. Thus, the Board’s actions had no effect on Petitioner’s sentence
expiration dates.
IV. PERIODS OF INELIGIBILITY
Petitioner contends the Department failed to calculate each sentence’s period of
“ineligibility for release.” Petitioner contends this is significant because “each
sentence . . . immediately commences upon completion of the preceding sentence’s period
of ineligibility for release.” We disagree.
Inmates convicted of felonies and serving sentences of over two years in
confinement “are entitled to . . . consideration for early release upon attaining their ‘release
eligibility date.’” Shorts v. Bartholomew, 278 S.W.3d 268, 277 (Tenn. 2009) (emphasis
added) (citing Tenn. Code Ann. § 40-35-501). The “release eligibility date” is “the earliest
date an inmate convicted of a felony is eligible for parole.” Stewart v. Schofield, 368
S.W.3d 457, 463 (Tenn. 2012). For inmates serving consecutive sentences, “the periods of
ineligibility for release are calculated for each sentence and are added together to determine
the release eligibility date.” Tenn. Code Ann. § 40-35-501(m).
It is undisputed that Petitioner’s release eligibility date has passed. It is also
undisputed that Petitioner has received consideration for parole three times. Thus, the
“periods of ineligibility for release” and Petitioner’s “release eligibility date” are no longer
relevant. Petitioner provides no authority for his conclusion that he was automatically
entitled to begin serving his consecutive sentences upon the expiration of the prior
ineligibility period. Periods of ineligibility for release are significant only when
determining whether an inmate is entitled to be considered for release on parole. See
id.; Shorts, 278 S.W.3d at 277.
For the foregoing reasons, we affirm the judgment of the trial court.
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CONCLUSION
We affirm the trial court’s judgment and remand the matter for dismissal with costs
of appeal assessed against Hugh A. Niceley.
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FRANK G. CLEMENT JR., P.J., M.S.
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