        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 1, 2013

   BILLY JACKSON COFFELT v. STATE OF TENNESSEE and JERRY
                     LESTER, WARDEN

                Appeal from the Circuit Court for Lauderdale County
                      No. 6650 Joseph H. Walker, III, Judge


              No. W2013-00783-CCA-R3-HC - Filed December 23, 2013


The Petitioner, Billy Jackson Coffelt, appeals the Lauderdale County Circuit Court’s
summary dismissal of his petition for habeas corpus relief from his 1983 conviction for
robbery by the use of a deadly weapon and resulting life sentence after being found to be a
habitual criminal offender. The Petitioner contends that the trial court erred by summarily
denying relief. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and R OBERT W. W EDEMEYER, JJ., joined.

Billy Jackson Coffelt, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark Bryan Thornton, Assistant
Attorney General; and D. Michael Dunavant, District Attorney General, for the appellee,
State of Tennessee.

                                         OPINION

        The Petitioner was convicted upon proof that he robbed Craig Owens at gunpoint of
three gold chains as she retrieved groceries from her car. Although the Petitioner did not
appeal his conviction, he sought post-conviction relief, and the trial court granted a delayed
appeal but denied relief on his post-conviction claim that he received the ineffective
assistance of counsel. The Petitioner appealed, raising four issues in the direct appeal and
ineffective assistance in his petition for post-conviction relief. This court denied relief on
all issues. Billy Jackson Coffelt v. State, No. 79 (Tenn. Crim. App. May 6, 1988). The
Petitioner now seeks habeas corpus relief.
        In his habeas corpus petition, the Petitioner contended that he was erroneously found
to be a habitual criminal offender, rendering his life sentence void. He argued that he had
three previous felony convictions but that two of those convictions were committed within
a twenty-four-hour period. He argued that for purposes of the habitual criminal offender
statute, the two offenses committed within twenty-four hours were required to be considered
as one conviction. He claimed he only had two applicable felony convictions. He also
argued that the trial court erroneously relied upon his attempt to commit a felony conviction
to classify him as a habitual offender because the conviction was not for an infamous offense.
The trial court summarily dismissed the petition, finding that the Petitioner’s sentence had
not expired and that the court had jurisdiction to sentence him. This appeal followed.

        The Petitioner contends that the trial court erred by summarily denying him habeas
corpus relief. He argues that his previous convictions did not satisfy the statutory
requirements for being a habitual criminal offender because he only had two applicable
convictions and that his life sentence is void. The State responds that the Petitioner had the
required number of previous felony convictions to be a habitual criminal offender and that
his life sentence is not void. We agree with the State.

        The determination of whether habeas corpus relief should be granted is a question of
law that is reviewed de novo with no presumption of correctness. State v. Livingston, 197
S.W.3d 710, 712 (Tenn. 2006); Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2001). In
Tennessee, habeas corpus relief is available only when it appears on the face of the judgment
or the record that the trial court was without jurisdiction to convict or sentence the defendant
or that the sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). When
applicable, the purpose of the habeas corpus petition is to contest a void, not merely a
voidable, judgment. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999); State ex rel. Newsom
v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1969).

        A void, as opposed to a voidable, judgment is “one that is facially invalid because the
court did not have the statutory authority to render such judgment.” Summers v. State, 212
S.W.3d 251, 256 (Tenn. 2007). A voidable judgment “is one that is facially valid and
requires proof beyond the face of the record or judgment to establish its invalidity.” Id. at
255-56. The burden is on the petitioner to establish that the judgment is void or that the
sentence has expired. State ex rel. Kuntz v. Bomar, 381 S.W.2d 290, 291-92 (Tenn. 1964).
The trial court, however, may dismiss a petition for writ of habeas corpus without a hearing
and without appointing a lawyer when the petition does not state a cognizable claim for
relief. Hickman, 153 S.W.3d at 20; State ex rel. Edmondson v. Henderson, 421 S.W.2d 635,
636-37 (Tenn. 1967); see T.C.A. § 29-21-109 (2010).




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      Although repealed in 1989, at the time the Petitioner was found to be a habitual
offender, Tennessee Code Annotated section 39-1-801 (1982), defined a habitual offender
as

       [a]ny person who has either been three (3) times convicted within this state of
       felonies, not less than two (2) of which are among those specified in §§ 39-2-
       103, 39-605 [repealed], 39-2-111, 39-2-112, 39-2-640, 39-6-417(a)(1)(A), 40-
       20-112 . . . , or who has been three (3) times convicted under the law of any
       other state . . . , not less than two (2) of which, if they had been committed in
       this state, would have been among those specified in said §§ 39-2-103, 39-605
       [repealed], 39-2-111, 39-2-112, 39-2-640, 39-6-417(a)(1)(A), 40-20-112 . . .
       , shall be considered, for the purposes of this part, and is declared to be an
       habitual criminal . . . ; and provided, further, that each of such three (3)
       convictions shall be for separate offenses, committed at different times, and on
       separate occasions.

We note that Code section 39-605 was repealed in 1978 and that the notes to the habitual
offender statute state that similar provisions were found in Code sections 39-2-603 and 39-2-
606. See T.C.A. § 39-1-801 (1982) (repealed 1989). Tennessee Code Annotated section 40-
20-112 (1981) (amended 1996), categorized all felonies as “infamous crimes” and stated, in
relevant part, “that for the purposes of [the habitual offender statute], references therein to
this section, shall only refer to those crimes which were designated as infamous crimes under
this code provision as it existed prior to May 18, 1981.” The notes to Code section 40-20-
112 state that offenses designated infamous crimes before May 18, 1981, included burglary
and robbery. Id. § 40-20-112, Complier’s Notes.

        The record reflects that the State relied upon the Petitioner’s previous convictions for
burglary, robbery, and attempt to commit a felony to classify him as a habitual offender.
Although the State alleged in the indictment that the Petitioner was previously convicted of
second degree burglary in 1954, the State conceded this was error, as the Petitioner was born
in 1954. At the trial, the parties discussed during a bench conference the three required
felonies. Regarding the burglary convictions, the prosecutor told the trial court that the
Petitioner committed three burglaries within a twenty-four-hour period. The State also stated
that it was relying on the Petitioner’s previous robbery and attempt to commit a felony
convictions. The prosecutor presented certified copies of the convictions, including the three
burglary convictions. After the bench conference, the prosecutor explained to the jurors that
the Petitioner was previously convicted of three burglaries on April 16, 1973 and received
three-year sentences for each offense, that he was convicted of attempt to commit a felony
in May 1976 and received two to five years in confinement, and that he was convicted of
robbery in Kentucky in April 1977 and received a ten-year sentence.

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        The Petitioner relies on Tines v. State, 553 S.W.2d 913 (Tenn. Crim. App. 1997), to
support his claim that he only had two applicable previous convictions. The Petitioner does
not dispute that he had three burglary, one robbery, and one attempt to commit a felony
convictions, and he does not dispute that his previous robbery and burglary convictions
qualified under the habitual offender statute as infamous crimes. He argues, rather, that the
burglary convictions constitute one conviction for purposes of the habitual offender statute.
We note that at the time the Petitioner was found to be an habitual offender, multiple
offenses committed on the same day were to be considered as one offense, although it was
proper to submit all the convictions to the jury. McMath v. State, 544 S.W.2d 902 (Tenn.
Crim. App. 1976). Our supreme court, though, overruled McMath and similar cases in State
v. Cook, 696 S.W.2d 6, 7 (Tenn. 1985). In Cook, the supreme court concluded that for
purposes of the habitual offender statute, two robberies occurred on separate occasions when
committed on the same date, against different victims, and forty minutes and six miles apart.
Id.; see State v. Moore, 751 S.W.2d 464, 466 (Tenn. Crim. App. 1988) (concluding that a
defendant’s being convicted of “three separate offenses on the same date does not mean the
offenses are inseparable and must be considered as only one offense).

        Although the Petitioner argues in his reply brief that Cook is inapplicable because it
was decided after the offense date, we conclude that Cook applies. See Moore, 751 S.W.2d
at 466 (applying Cook when the defendant was convicted one year before Cook was decided);
see also State v. Robert Lee Jones, No. 166, slip op. at 2-3 (Tenn. Crim. App. Feb. 2 1987)
(applying Cook when the defendant was indicted for crimes committed in 1984). There is
no proof in the record of the facts of the Petitioner’s three burglary convictions. This court
is unable to determine whether the facts of those offenses support a conclusion that the
burglaries were “separate events or happenings, unrelated to the other” or if the burglaries
should be considered as one conviction. See Cook, 696 S.W.2d at 8. We cannot conclude
that it was improper for the jury to use the Petitioner’s three burglary convictions in finding
that he was an habitual criminal offender. We, likewise, cannot conclude that the judgment
is void on this basis.

          The Petitioner also argues that his attempt to commit a felony conviction is not an
infamous crime, and the State agrees. See Tines, 553 S.W.2d at 917 (concluding that
attempting to commit a felony is not an infamous crime). The offense was a felony, though,
as the Petitioner was sentenced to two to five years in confinement. See T.C.A. § 39-1-501
(1982) (repealed 1989); id. § 39-1-103 (1982) (repealed 1989) (stating that “all violations of
law punished by imprisonment in the penitentiary . . . are, and shall be denominated, felonies
. . . .”). The statute only required that two of the three previous felony convictions be for
infamous crimes. Because burglary and robbery were infamous crimes and attempt to
commit a felony was defined as a felony, we conclude that the Petitioner’s previous



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convictions satisfied the requirements of the habitual offender statute. He is not entitled to
relief on this basis.

       The Petitioner also argues that the trial court erred by not appointing counsel. We
disagree. The trial court was permitted to dismiss the petition without a hearing and without
appointing a lawyer because nothing in the petition showed that the judgment was void. See
T.C.A. § 29-21-109 (stating that “if, from the showing of the petitioner, the plaintiff would
not be entitled to relief, the writ may be refused . . . .”). Although the Petitioner argues in his
brief that the trial court focused on convictions he received after being sentenced as a
habitual offender, we disagree. In the order denying relief, the court discussed the procedural
history of the Petitioner’s a habitual offender conviction. The court also noted that after the
Petitioner was determined to be a habitual offender, the Petitioner and a codefendant were
convicted of one count of felony escape, two counts of aggravated assault, and two counts
of especially aggravated kidnapping. See State v. Billy J. Coffelt and Lyle T. Van Ulzen, No.
M2002-01214-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App. Sept. 11, 2003). The trial court
noted that on appeal, the Petitioner received relief from his life sentences for the especially
aggravated kidnapping convictions and was later given an effective sentence of ninety years.
In denying habeas corpus relief, the court found that the life sentence associated with the
habitual offender judgment and his ninety-year sentence regarding the prison escape had not
expired. The court simply noted that the subsequent convictions and sentences also justified
his incarceration. It did not rely upon those convictions in denying habeas corpus relief
regarding the robbery conviction that led to his habitual offender classification. The trial
court did not err by summarily dismissing the petition. The Petitioner is not entitled to relief
on this basis.

        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.


                                             ____________________________________
                                             JOSEPH M. TIPTON, PRESIDING JUDGE




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