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concluding that the petitioner met the "in custody" requirement when he was still serving a consecutive sentence imposed while he was serving the challenged sentence
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No. E2009-01563-CCA-R3-HC.
Assigned on Briefs June 29, 2010.
Filed December 30, 2010.
Direct Appeal from the Criminal Court for Morgan County; No. 9056; E. Eugene Eblen, Judge.
Judgment of the Criminal Court Affirmed in Part and Reversed in Part.
Roland E. Cowden, Maryville, Tennessee, for the appellee, Michael T. Henderson.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Russell Johnson, District Attorney General; for the appellant, State of Tennessee.
Norma Mcgee Ogle, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., J., joined. Joseph M. Tipton, P.J., filed a concurring opinion.
OPINION
The State of Tennessee appeals the Morgan County Criminal Court's order granting the petitioner, Michael T. Henderson, partial habeas corpus relief from his Knox County convictions of burglary and larceny. Also on appeal, the petitioner argues in his brief that the habeas corpus court erred in denying a portion of his claims. Following our review we reverse the partial award of habeas corpus relief and affirm the denial of the remaining habeas corpus claims.
On August 14, 1992, the Knox County Criminal Court entered a judgment convicting the petitioner of grand larceny in case number 37243 and of burglary in case number 35050. The court imposed a three-year sentence in case number 35050 and a two-year sentence in case number 37243, to be served consecutively for a total effective sentence of five years. In addition, the judgments for both indicated a probationary period of five years, and both judgments stated that the probation period would expire on August 14, 1997.
Based upon recitations contained in Knox County Criminal Court orders, copies of which were appended to the petition for habeas corpus relief now under review, that court revoked the petitioner's probation in case numbers 37243 and 35050 on February 19, 1993, and placed the petitioner on "the Intensive Supervision Program . . . to expire March 6, 1997."
On November 22, 1993, in case number 50650, the Knox County Criminal Court entered a judgment convicting the petitioner of burglary and sentencing him to four years "on Intensive Supervised Probation . . . to expire March 6, 2001." The judgment further provided that the four-year sentence would run consecutively to case number 37243.
On May 17, 1996, the State obtained a violation of probation warrant in several of the petitioner's cases, including the three identified above. At the June 7, 1999 revocation hearing, the petitioner submitted to the violations, and the record contains orders of the conviction court revoking the petitioner's probation in case numbers 37243 and 35050. The orders did not mention case number 50650 in which the four-year suspended sentence had been imposed.
On April 30, 2001, in case number 67871A, the Knox County Criminal Court entered a judgment convicting the petitioner of attempt to commit first degree murder and imposing a sentence of 15 years to be served in the Department of Correction consecutively to the sentences imposed in case numbers 37243 and 50650. The judgment made no mention of the three-year sentence imposed in case number 35050 but does contain a notation that the petitioner's sentence in that case "shall begin on February 22, 2001."
On April 21, 2004, the petitioner filed a petition for habeas corpus relief claiming that (1) the judgment in case number 37243 was void because it imposed consecutive sentencing but concurrent terms of probation with case number 35050, (2) the judgment in case number 50650 was void because it imposed consecutive sentencing but concurrent terms of probation with case number 37243, and (3) his 1999 probation revocation in case number 35050 was void because the sentence in that case expired before the issuance of the 1996 violation warrant.
The habeas corpus court held that the Knox County Criminal Court, when revoking the petitioner's probation in case numbers 35050, 37243, and 50650, had "sentenced the [d]efendant to a total of five (5) years on the violations of probation then pending." It held that the Tennessee Department of Correction had erroneously determined that the petitioner was serving a nine-year sentence and declared that the effective sentence is five years. The court denied any further relief. The State then appealed.
On appeal, the State claims that the Knox County Criminal Court entered a valid judgment in case number 50650 and that, by its terms, the four-year sentence in that case was imposed to run consecutively with the prior five-year effective sentence. The State also claims that the conviction court effectively revoked the petitioner's probation in case number 50650 when it revoked his probation in case numbers 35050 and 37243. In his responsive brief, the petitioner also argues that the habeas corpus court erred by not granting relief in case numbers 35050 and 37243 on the basis of a sentence illegality.
The writ of habeas corpus is constitutionally guaranteed,see U.S. Const. art. 1, § 9, cl. 2; Tenn. Const. art. I, § 15, but has been regulated by statute for more than a century, see Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968). Tennessee Code Annotated section 29-21-101 provides that "[a]ny person imprisoned or restrained of liberty, under any pretense whatsoever, except in cases specified in § 29-21-102, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and restraint." T.C.A. § 29-21-101 (2006). Despite the broad wording of the statute, a writ of habeas corpus may be granted only when the petitioner has established a lack of jurisdiction for the order of confinement or that he is otherwise entitled to immediate release because of the expiration of his sentence. See Ussery, 432 S.W.2d at 658; State v. Galloway, 45 Tenn. 326 (1868). The purpose of the state habeas corpus petition is to contest a void, not merely a voidable, judgment. State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968). A void conviction is one which strikes at the jurisdictional integrity of the trial court. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); see State ex rel. Anglin v. Mitchell, 575 S.W.2d 284, 287 (Tenn. 1979);Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). Because in the petitioner's case the trial court apparently had jurisdiction over the actus reus, the subject matter, and the person of the petitioner, the petitioner's jurisdictional issues are limited to the claims that the court was without authority to enter the judgments. See Anglin, 575 S.W.2d at 287 ("`Jurisdiction' in the sense here used, is not limited to jurisdiction of the person or of the subject matter but also includes lawful authority of the court to render the particular order or judgment whereby the petitioner has been imprisoned.");see also Archer, 851 S.W.2d at 164;Passarella, 891 S.W.2d at 627.
In addition to the various procedural requirements for the prosecution of a petition for writ of habeas corpus contained in the Code, see generally T.C.A. §§ 29-21-105 to-112, our supreme court has held that "[t]he petitioner bears the burden of providing an adequate record for summary review of the habeas corpus petition." Summers v. State, 212 S.W.3d 251, 261 (Tenn. 2007). "[A]n adequate record for summary review must include pertinent documents to support those factual assertions" contained in the petition. Id. When a petitioner fails to attach to his petition sufficient documentation supporting his claims, the habeas corpus court may summarily dismiss the petition. Id.
I. State Appeal: Case Number 50650
In this habeas corpus proceeding, the petitioner did not establish that the Knox County Criminal Court lacked jurisdiction to enter its judgment in case number 50650 on November 22, 1993. The judgment affirmatively expressed the four-year sentence was to be served consecutively to the two-year sentence in case number 37243 which, in turn, was consecutive to the three-year sentence in 35050. The total effective sentence was nine years. We discern no basis for holding that this judgment was void. Indeed, we cannot even conclude that the habeas corpus court held it to be void. Thus, we hold that the judgment in case number 50650 is not subject to habeas corpus relief, and on this point the order of the habeas corpus court is reversed. The judgment imposes a four-year sentence to run consecutively to the earlier effective sentence of five years.
We cannot adjudicate in this habeas corpus appeal the State's claim that the revocation orders entered on June 7, 1999, effectively revoked the petitioner's probation in case number 50650 as well as in case numbers 35050 and 37243. The Knox County Criminal Court entered separate revocation orders on June 7, 1999, one captioned in case number 37243 and the other in case number 35050. Although the transcript of the revocation hearing held on that date was captioned under case number 50650, no order adjudicating the revocation warrant in that case appears in the record. Given the current state of the record, we cannot discern whether the conviction court entered a third revocation order that was captioned in case number 50650. We note that if the probation in case number 50650 was not revoked, a petition seeking the revocation may still be pending in the conviction court.
II. Petitioner's Claims: Case numbers 37243, 35050
In addition to opposing the State's issue on appeal, the petitioner claims that the habeas corpus court erred by denying his bids for relief in case numbers 35050 and 37243. In the habeas corpus court's final order entered June 24, 2009, the court summarily denied the petitioner's claims with respect to the validity of the judgments in those two cases. In his brief, the petitioner claims that the judgments in case numbers 35050 and 37243 are void because they order consecutive sentences of three years and two years, respectively, but impose concurrent probationary terms of five years. He asserts that this sentence is illegal and that he is therefore entitled to habeas corpus relief.
The record on appeal establishes that on June 7, 1999, the Knox County Criminal Court, operating under the auspices of a probation revocation warrant issued in May 1996, revoked the petitioner's probation in both case numbers 35050 and 37243 and ordered that he serve the sentences as originally imposed in TDOC. The court also granted the petitioner 515 days of jail credit. Accordingly, beginning his sentence calculation on June 7, 1999, the petitioner's sentences in both case number 35050 and 37243 would have expired in December 2002, notwithstanding any sentence reduction credits awarded to the petitioner. The petitioner did not file the petition for writ of habeas corpus at issue in this case until April 2004.
The law is well settled that claims for habeas corpus relief are not justiciable where the sentence for the challenged conviction has been served and has expired. See Benson v. State, 153 S.W.3d 27, 31 (Tenn. 2004). "The requirement that the petitioner must be `imprisoned or restrained of liberty' by the challenged convictions is essentially a requirement of standing to bring an action in habeas corpus and apparently operates independently of the merits of the substantive claim of voidness." Jesse B. Tucker v. Jim Morrow, Warden, No. E2009-00803-CCA-R3-CD, slip op. at 3 (Tenn. Crim. App., Knoxville, Dec. 1, 2009); see also Benson, 153 S.W.3d at 31 ("A statutory prerequisite for eligibility to seek habeas corpus relief is that the petitioner must be `imprisoned or restrained of liberty' by the challenged convictions."). The petitioner is currently restrained of his liberty by virtue of a sentence that was imposed after those in case numbers 35050 and 37243 and that ordered the sentences served consecutively to the effective five-year term imposed in those cases. Although our supreme court has interpreted the "in custody" requirement "to include consecutive sentences `in the aggregate, not as discrete segments,'" see May v. Carlton, 245 S.W.3d 340, 343 (Tenn. 2008) (quotingGarlotte v. Fordice, 515 U.S. 39, 47, 115 S. Ct. 1948, 1952 (1995)), we glean that this interpretation applies to the aggregate of sentences imposed at the same time. To hold otherwise would permit a petitioner to petition for habeas corpus relief on sentences long since served and expired so long as any portion of a later-imposed consecutive sentence remained. Such an interpretation would erode the public's interest in the finality of criminal judgments. Cf. Harris v. State, 301 S.W.3d 141, 148-149 (Tenn. 2010) (noting the public's interest in finality of judgment); State v. Mixon, 983 S.W.2d 661, 670 (emphasizing the importance of `finality to criminal judgments').
Because the petitioner's sentence in the challenged convictions expired prior to the filing of the petition for writ of habeas corpus in this case, he is not entitled to habeas corpus relief in case numbers 35050 and 37243.
Conclusion
Because the habeas corpus court erroneously awarded partial habeas corpus relief to the petitioner, the judgment of the habeas corpus court awarding that relief is reversed. The judgment of the habeas corpus court denying relief on the remainder of the petitioner's claims is affirmed.
I concur in the results reached in the majority opinion. I respectfully disagree, though, with the opinion's conclusion that because the Petitioner's grand larceny and burglary sentences had been served, the Petitioner was not "in custody" on them, thereby barring habeas corpus relief. I believe they were part of consecutive sentences that were to be treated in the aggregate, allowing for habeas corpus relief from any judgment that was void.
In Garlotte v. Fordice, 515 U.S. 39 (1995), the Supreme Court was faced with a petitioner who had been sentenced to consecutive sentences in the same proceeding but had already served the first sentence, which he was attacking. The issue was whether a prisoner who had already served a sentence could meet the "in custody" requirement for habeas corpus relief from that conviction when the sentence was part of consecutive sentences still being served. The Court noted that it had previously concluded that consecutive sentences should be considered in the aggregate for habeas corpus "in custody" purposes. Id. at 40-41;Peyton v. Rowe, 391 U.S. 54, 64-65 (1968) (holding that a prisoner was "in custody" for habeas corpus purposes on a consecutive sentence that had not yet begun). The Court concluded that the fact that the sentence for the conviction under attack had already been served did not bar habeas corpus relief when consecutive sentences were involved. Garlotte, 515 U.S. at 47. The Tennessee Supreme Court has noted Garlotte for this holding. See May v. Carlton, 245 S.W.3d 340, 343 (Tenn. 2008).
In the present case, the majority opinion apparently concludes that the fact that Garlotte involved consecutive sentences imposed in the same proceeding means that the aggregate approach does not apply to sentences imposed at separate times. I do not agree.
The Court neither says nor implies any such thing. The impact of a void sentence on the service of a consecutive sentence is as severe whenever the consecutive sentence is imposed, as long as the void sentence is still being served when the consecutive sentence is imposed.
Other jurisdictions have not made the distinction the majority opinion does. See DeFoy v. McCullough, 393 F.3d 439, 442 (3d Cir. 2005) ("Although the facts inGarlotte are somewhat different from those here (i.e., the prisoner there had been convicted and sentenced by the same court at the same time), Garlotte allows us to review a completed sentence when the prisoner, like [the petitioner], is still serving a sentence imposed by a different court at a different time."); Foster v. Booher, 296 F.3d 947, 950 (10th Cir. 2002) ("Any attempt to distinguish Garlotte on its facts ignores the language in Garlotte, which sets out a clear and broad rule that we must `view consecutive sentences in the aggregate, not as discrete segments.'" (quoting Garlotte, 515 U.S. at 47)).
In the present case, the Petitioner was still serving his sentence for the grand larceny and burglary convictions when he received the consecutive sentence of fifteen years for the attempted first degree murder. Thus, I believe we should consider the merits of the Petitioner's claims regarding his grand larceny and burglary convictions, case numbers 37243 and 35050.
In this regard, the Petitioner contends that the judgment in case number 37243 illegally imposes a consecutive sentence of incarceration to and a concurrent term of probation with the sentence imposed for case number 35050 and that the judgment in case number 50650 illegally imposes a consecutive sentence of incarceration to and a concurrent term of probation with the sentence imposed for case number 37243. The State contends that these claims are without merit because the probation terms were not imposed concurrently. I agree.
A sentencing court may not order concurrent service of probation with consecutive service of confinement. See T.C.A. § 40-35-115(a) (2010); State v. Clark, 67 S.W.3d 73, 79 (Tenn. Crim. App. 2001); State v. Connors, 924 S.W.2d 362, 364 (Tenn. Crim. App. 1996), overruled on other grounds, State v. Troutman, 979 S.W.2d 271 (Tenn. 1998). The judgments for case numbers 35050 and 37243, dated August 14, 1992, imposed sentences of three years and two years respectively, with the sentence for case number 37243 to be served consecutively to that for case number 35050. Each judgment ordered the same five-year probation period, originally set to expire on August 14, 1997. The Petitioner argues that because the trial court ordered this probation period on both judgments, it ordered concurrent sentences of probation. Neither judgment states that the probation terms are concurrent, and the box for "Special Conditions" on each judgment orders that the Petitioner be placed on probation for his full sentence. The three-year probation period imposed in case number 35050 and the two-year probation period imposed in case number 37243 equaled a total consecutive sentence of five years' probation. When the trial court revoked the Petitioner's probation in these two cases, it ordered that the Petitioner serve his remaining sentence in the Intensive Supervision Program, to expire on March 6, 1997. This was the time remaining in the aggregate probation period for the consecutive sentences.
The judgment for case number 50650, dated November 22, 1993, imposed a sentence of four years and stated that the sentence was consecutive to case number 37243. The trial court ordered four years' probation, with an explanation in the "Special Conditions" section that the Petitioner's sentence was suspended and that he was placed on Intensive Supervised Probation, to expire on March 6, 2001. As the State notes, this expiration date was exactly four years after the Petitioner's probation for case numbers 35050 and 37243 was set to expire. Because the Revocation of Probation Order for case number 37243, entered on June 7, 1999, ordered that the Petitioner's probation period was extended to the same date of March 6, 2001, the Petitioner argues that the trial court imposed the probation sentences in case numbers 37243 and 50650 concurrently. Instead, the record shows that the trial court added the two consecutive probation periods to indicate when the Petitioner would complete his aggregate sentence. The court did not order concurrent probation. I conclude that the petition has no merit.