           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     Assigned on Briefs July 25, 2001

                       JEFFREY MILLER v. STATE OF TENNESSEE

                            Appeal from the Criminal Court for Meigs County
                                   No. 2703A    Eugene Eblen, Judge



                                          No. E2000-01192-CCA-R3-CD
                                                August 29, 2001

Jeffrey Miller appeals the Meigs County Criminal Court’s dismissal of his petitions for writ of error
coram nobis and writ of habeas corpus. Both petitions seek redress for Miller’s grievance that he
has been required to serve felony sentences in the Department of Correction, although his plea
agreements designated the location of confinement to be the Meigs County Jail. Because neither
coram nobis nor habeas corpus relief is available to address a concern of this nature and because the
petitioner’s claims are factually unfounded, we affirm.

                    Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL
and ROBERT W. WEDEMEYER , JJ., joined.

William B. McKenzie, Decatur, Tennessee, for the Appellant, Jeffrey Miller.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
J. Scott McCluen, District Attorney General; Frank Harvey and Dennis Humphrey, Assistant District
Attorneys General, for the Appellee, State of Tennessee.


                                                        OPINION

               On August 27, 1996, Jeffrey Miller pleaded guilty to burglary and theft in Meigs
County case number 2703A. The plea agreement called for four-year sentences for both offenses,
to be served concurrently to each other but consecutively to the sentence in case number 2727. On
the same date, Miller also pleaded guilty in case 2727 to aggravated burglary and theft. That plea
agreement called for three-year sentences to be served concurrently to each other but consecutively
to case number 2703.1 Thereafter, the lower court conducted a hearing to determine the manner of


       1
           The plea agreement in case number 2727 refe re nce s c ons ec utive se nte ncing w ith c a se numbe r “ 2703 .” We
                                                                                                               (continu ed...)
service of these sentences and ultimately imposed incarceration in the Department of Correction.
However, the defendant was allowed to remain in the Meigs County Jail until he escaped in May
1997. After his recapture, he was returned to the Meigs County Jail for a brief period of time and
then transferred to the Department of Correction. He pleaded guilty to escape on December 17,
1997, and he was sentenced to serve an additional year in the Department of Correction
consecutively to his existing sentences.

                On March 31, 2000, Miller filed a petition for writ of habeas corpus, and on a date
not reflected in the record, he apparently filed a petition for writ of error coram nobis.2 The tenor
of both petitions is that following his escape from the Meigs County Jail, Miller was “resentenced”
to the Department of Correction without having been afforded a hearing. Miller claimed in the
petitions that his prior plea agreements called for him to serve his time in the Meigs County Jail.

                The trial court thereafter conducted a hearing. Miller’s testimony was somewhat
contradictory. He testified that the judgments in his burglary, aggravated burglary and theft cases
had been “altered,” and he had actually been “sentenced to the county jail.” He then acknowledged
that there had been no written agreement that he would serve his sentences in the Meigs County Jail,
although his understanding was that he would be able to do so.3 The petitioner asked the court to
modify his sentence to “some kind of alternative sentencing.” At the conclusion of the hearing, the
court denied relief.

               On appeal, Miller argues that due to the “resentencing” without a hearing, the lower
court should have modified his sentence under Code section 40-35-314(c) to permit local jail service.
He further argues that the court erred in failing to set aside the plea agreements based upon a finding
that they were voided by his transfer to the Department of Correction.

               In order to determine whether Miller may obtain the relief requested, we must
examine the types of action which are before the court, a petition for the writ of error coram
nobis and a petition for the writ of habeas corpus.

                  With respect to the writ of error coram nobis, the Code provides


         1
         (...continued)
presume this reference is to the case referenced elsewhere in the record as number 2703A.
         2
           Such a document appears in the record certified to this court by the clerk of the lower court, although it does
not bear a file stamp indicating the date on which it was filed in the lower court. The petitioner affixed his signature
to it on May 26, 1999, and the state filed a motion to dismiss the petition on August 9, 1999. We therefore presume that
the petition was filed som etime betwee n these two dates.
         3
           He also claimed that he had an oral agreement with “Amy” in McMinn County that he would serve sentences
from McM inn Cou nty that w ere conc urrent w ith the M eigs Cou nty sentences in the Meigs County Jail. The petitions
adjudicated below and this appeal do not, however, address any complaints the petitioner may have about the location
of service of his M cMinn C ounty sentenc es.

                                                           -2-
         Upon a showing by the defendant that the defendant was without fault in failing to
         present certain evidence at the proper time, a writ of error coram nobis will lie for
         subsequently or newly discovered evidence relating to matters which were litigated
         at the trial if the judge determines that such evidence may have resulted in a different
         judgment, had it been presented at the trial.

Tenn. Code Ann. § 40-26-105 (1997). In this case, the petitioner’s claim, even if taken as true, does
not fit within the category of cognizable claims. He is not seeking to bring new evidence before the
court which might have had an effect on the judgment. Further, the petitioner did not have a trial,
and the statute contemplates coram nobis relief upon discovery of evidence that might have been
presented “at trial.” Id. Coram nobis relief, therefore, cannot lie.4

                 Habeas corpus relief addresses detentions that result from void judgments or expired
sentences. See Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). A sentencing "judgment is void
if the face of the judgment reveals that the court was without jurisdiction or authority to issue it."
State v. Donald Ree Jones, No. M2000-00381-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App.,
Nashville, Oct. 13, 2000). Moreover, a claim that merely asserts a void sentence, even though it
may not assert a void conviction, is cognizable as a habeas corpus proceeding. See Stephenson v.
Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (a void sentence, as well as a void conviction, may result
in a void judgment and be the subject of a habeas corpus proceeding).

                The defendant in this case does not argue that his sentence is expired; therefore, he
is a candidate for habeas corpus relief only if the judgment or sentence is void. In that regard, a
claim that his plea bargain agreement was not honored in the judgment entered or sentence imposed
presents at most a claim of a merely voidable, and not void, judgment or sentence. See Paul Barnett
v. State, No. E1999-01583-CCA-R3-CD, slip op. at 3 (Tenn. Crim. App., Knoxville, June 20, 2000)
(allegation did not rise to level of void sentence where petitioner claimed that he agreed to three-year
sentence, but judgment was altered without his knowledge to reflect five-year sentence); cf. Paul G.
Hull v. State, No. 02C01-9605-CC-00183, slip op. at 3-4 (Tenn. Crim. App., Jackson, June 24, 1997)
(allegation that state failed to abide by terms of plea agreement did not present cognizable habeas
corpus claim).

                 We therefore conclude that the petitioner’s claim was cognizable neither in a petition
for writ of error coram nobis nor petition for writ of habeas corpus. For that reason alone, the lower
court properly dismissed the petitions.




         4
             The state also claim s that the petitio n is untim ely. A pe tition for the w rit of error coram nobis must be filed
within one year of the date on wh ich the trial co urt’s judg ment b ecom es final, State v. Mixon, 983 S.W.2d 661, 670
(Tenn. 1999), although due process m ay require that the statute of lim itations be tolled in certain circum stances.
Workman v. State, 41 S.W.3d 100 (Tenn. 2 001). Be cause the claim presented is not a cognizable one for coram nobis
relief, it is unnecessary for us to decide whether it was timely.

                                                              -3-
                Furthermore, the petitioner failed to establish the factual premises which he claims
would entitle him to relief. His habeas corpus petition alleges that his “pleas [sic] agreement
specifically states he was to be incarcerated in the county facility.” His coram nobis petition alleges
that “his plea agreement sentencing judgement [sic] for 2703A and 2727 was changed from him
serving time in [the Meigs County] Jail, and [he] was resentenced to T.D.O.C., without his
knowledge, consent or any hearing.” Neither allegation was proven at the hearing. To the contrary,
the petitioner himself testified that there was not a written agreement that he would serve his
sentence in the local jail. He offered no proof other than his uncorroborated testimony that the
judgments had been altered, and that testimony was discredited by contrary evidence in the form of
the transcript of the plea submission and sentencing hearings at which the court ordered service of
the sentences in the Department of Correction. Thus, the petitioner’s failure to establish a factual
basis upon which the lower court could grant relief provides an additional justification for the lower
court’s ruling. See Bobby Lee Tate v. State, No. E2000-00796-CCA-R3-CD (Tenn. Crim. App.,
Knoxville, Dec. 6, 2000) (appellate court affirmed lower court’s dismissal of “Motion to Vacate
Judgment” countenanced as petition for writ of habeas corpus because petitioner failed to establish
factual premise for his claim).

               We have also considered whether Miller’s complaint is cognizable as a motion to
correct or reduce sentence under Tennessee Rule of Criminal Procedure 35. We conclude that it is
not. That rule contains a 120-day time limit within which the court may act, and the judgments of
which Miller complains were entered years before his petitions were filed.

                Finally, we have rejected the petitioner’s argument in his brief that the trial court
should have addressed the remainder of his sentences under Code section 40-35-314(c). That
provision allows the trial court to retain jurisdiction over a defendant during the time that such
individual is confined in the local jail. Tenn. Code Ann. § 40-35-314(c) (1997). Such jurisdiction
allows the trial court to reduce or modify a sentence or allow probation supervision. Id. As stated
above, the petitioner was sentenced to the Department of Correction, and the lower court therefore
had no jurisdiction under this Code section to adjust the defendant’s remaining sentences.

                For these reasons, we affirm the Meigs County Criminal Court’s dismissal of the
petitions for writ of error coram nobis and writ of habeas corpus.



                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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