                                                                                             03/15/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 26, 2019

              CHARLES MONTAGUE v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Johnson County
                     No. CC-18-CR-94      Stacy L. Street, Judge


                              No. E2018-01500-CCA-R3-HC


The petitioner, Charles Montague, appeals the summary dismissal of his petition for writ
of habeas corpus, which petition challenged the judgments for his 1993 misdemeanor
convictions of possession of drugs and drug paraphernalia. Discerning no error, we
affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE, and D. KELLY THOMAS, JR., JJ., joined.

Charles Montague, Mountain City, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; and Clark B. Thornton, Assistant
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

               On August 4, 1989, the petitioner was arrested and charged with possession
of drugs and drug paraphernalia. A Washington County Circuit Court jury convicted the
petitioner of “possession of cocaine and crack cocaine for sale, possession of marijuana[,]
and possession of drug paraphernalia,” and the trial court imposed consecutive sentences
of nine years for the conviction of cocaine possession and 11 months and 29 days for
both of the misdemeanor convictions. State v. Charles D. Montague, No. 03C01-9105-
CR-134, 1991 WL 236724, at *1 (Tenn. Crim. App., Knoxville, Nov. 15, 1991)
(Montague I). On direct appeal, this court granted the petitioner a new trial based upon
his trial counsel’s failure to challenge the constitutionality of the warrantless search of the
petitioner’s vehicle. Montague I, 1991 WL 236724, at *3.

              Before the petitioner could be tried a second time, he was charged with and
convicted of first degree murder for the May 4, 1992 death of Donnie McMillian and
sentenced to life imprisonment; this court subsequently affirmed the conviction on direct
appeal. State v. Charles Montague, No. 03C01-9306-CR-00192, 1994 WL 652186, at *1
(Tenn. Crim. App., Knoxville, Nov. 21, 1994) (Montague II). “Following the second
jury trial on September 21, 1993, the defendant was again convicted of” “possession of
cocaine for sale, possession of marijuana, and possession of drug paraphernalia.” State v.
Charles D. Montague, No. 03C01-9406-CR-00233, 1995 WL 509426, at *1 (Tenn. Crim.
App., Knoxville, Aug. 29, 1995) (Montague III). The trial court imposed a six-year
sentence for the cocaine possession conviction and sentences of 11 months and 29 days
for both of the misdemeanor convictions and ordered that the sentences be served
consecutively to each other and to the petitioner’s life sentence. Id.

              The petitioner then filed a timely but unsuccessful petition for post-
conviction relief, and this court affirmed the denial of relief. Charles Montague v. State,
E2003-01330-CCA-R3-PC, 2001 WL 1011464 (Tenn. Crim. App., Knoxville, Sept. 4,
2001) (Montague IV). The petitioner then filed his first unsuccessful petition for writ of
habeas corpus, and this court determined that the petitioner’s complaints, among which
was a claim that he had not received pretrial credits, were without merit. Charles
Montague v. Howard Carlton, Warden, No. E2007-02823-CCA-R3-HC (Tenn. Crim.
App., Knoxville, Sept. 11, 2008) (Montague V).

              On April 8, 2010, the petitioner filed a second petition for writ of habeas
corpus, alleging, among other things, that his judgments were “void because: (1) they do
not include pretrial jail credits, (2) the sentences have expired, (3) there are fatal
variances in the indictment, and (4) the trial court imposed a fine in excess of the
statutory maximum.” Charles Montague v. Cherry Lindamood, Warden, No. M2010-
01653-CCA-R3-HC, slip op. at 3 (Tenn. Crim. App., Knoxville, Dec. 1, 2010)
(Memorandum Opinion) (Montague VI). This court ruled that the petitioner’s claims for
habeas corpus relief based on the failure to award pretrial jail credits, the expiration of his
sentences, and variances in the indictment had “already been determined to be without
merit” by this court and that a claim of excessive fines was not a cognizable ground for
habeas corpus relief. Id., slip op. at 4.

               The petitioner filed a third petition for writ of habeas corpus on November
7, 2011, which petition alleged, among other things, that the judgments for his
convictions in this case were void because they did not include an award of pretrial jail
credit for each of his convictions. Following the summary dismissal of that petition, the
petitioner “attempted to supplement the record in this court with a one-page document
from the Washington County Detention Center reflecting his pretrial jail credits,” which
document indicated that the petitioner had served “a total of 73 days, in the Washington
County Detention Center” on the misdemeanor drug charges. On direct appeal, this court
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concluded that the habeas corpus court had erred by summarily dismissing the petition
and remanded the case for an evidentiary hearing to determine “how many, if any, credits
to apply to the [p]etitioner’s sentences on all counts and to amend the judgments as
appropriate.” Charles Montague v. State, No. E2012-00147-CCA-R3-HC, slip op. at 7
(Tenn. Crim. App., Knoxville, Sept. 25, 2012) (Montague VII).

                Following the remand, the petitioner asked the court for a total of 857 days’
pretrial jail credits for the period from August 4, 1989, to December 9, 1991, and asked
that the credits be applied to all three drug-related convictions. Via a September 20, 2013
order, the Washington County Criminal Court granted the petitioner 857 days’ pretrial
jail credits plus “jail credit for all periods of time wherein [the petitioner] was transported
from a TDOC penitentiary and held in the Washington County Detention Center post-
trial in Washington County Criminal Court, Case No. 18075.”

                The petitioner filed the petition for writ of habeas corpus at issue in this
case, his fourth, on May 30, 2018. In his petition, the petitioner asserted that the
judgments imposed for his misdemeanor convictions of possession of drugs and drug
paraphernalia were void because they did not reflect the appropriate award of pretrial jail
credits. He also claimed that the petition was his first petition for writ of habeas corpus
“concerning the misdemeanor sentence” despite that the claim presented is essentially
identical to that presented in his three previous petitions for writ of habeas corpus.1 The
petitioner also asserted that he was being held by the Department of Correction
(“TDOC”) on the basis of a detainer issued by the Washington County Sheriff’s
Department relative to the service of the misdemeanor sentences in this case. He argued
that, as a result of the sheriff’s department’s failure to act on the detainer, he should be
awarded “credits for time spent in the [TDOC] detention held for the misdemeanor
detainer.” He also argued that he “is entitled to credit for time worked (labor) while in
prison” and that “his sentence should be reduced by two days” for each day of work
credit. The petitioner asked the habeas corpus court to enter amended judgments
reflecting “credits for 74 days times 2 days=148 days plus the 73 days, totaling 221
days.” The petitioner exhibited to his petition a document from the Washington County
Detention Center dated April 18, 2012, that indicates that the petitioner served 73 days in
that facility in 1991 in case number 18075 “Misdemeanor Counts 2 and 3.” This appears
to be the same document mentioned by this court in Montague VII. He also exhibited the
original 1993 judgment forms for those convictions, and neither form reflects an award of
pretrial jail credits.

                The petitioner filed an amended petition for writ of habeas corpus on July
1
        The petitioner has filed two direct appeals, one petition for post-conviction relief, four petitions
for the state writ of habeas corpus, and at least one petition for the federal writ of habeas corpus
challenging the convictions in this case.
                                                    -3-
11, 2018, alleging that he was still being held in TDOC custody pursuant to a detainer
warrant. The petitioner also stated that “[t]he legality of the missing pretrial and post-
judgment credits concerning the misdemeanor sentences has to a limited extent been
adjudged in a prior proceeding, however the calculation of the 2 for one credits that need
to be added to the equation since the petitioner made parole.” The petitioner averred that
this was his second petition for writ of habeas corpus despite that it is actually his fourth.
The petitioner insisted that he was entitled to “post judgment credits in the amount (273
days).” Although it is not clear how the petitioner arrived at this amount, the total
appears to be based, at least in part, on the petitioner’s claim that he is entitled to “2 for 1
credits for work/labor, towards the completion of the” misdemeanor sentences for the
period from February 15, 2018, to May 1, 2018, as well as from June 15, 2018, to July
10, 2018.

               The habeas corpus court summarily dismissed the petition, observing that
the “matter has been addressed numerous times by this Court and by the Appellate
Courts, most recently in the Washington County Criminal Court and has been
respectfully and repeatedly denied.” The court also found “that no new facts or errors are
raised in this new petition that have not been addressed.”

              In this appeal, the petitioner contends that the habeas corpus court erred by
summarily dismissing his petition. He claims entitlement to habeas corpus relief on
grounds that the trial court failed to amend the judgment forms for his misdemeanor
convictions to reflect “1. time served credits, 2. work credits, 3. good behavior credits”;
that the trial court “arbitrarily” increased the percentage of service required for the
misdemeanor convictions following his conviction upon retrial; and that the trial court
imposed an illegal sentence in the form of excessive fines. The petitioner also asserts that
he is entitled to 176 days’ “work credits and/or good behavior credits” toward the
misdemeanor for the period of time he was held by TDOC on a Washington County
Detainer following his grant of parole in the murder case. The State asserts that summary
dismissal was appropriate.

               “The determination of whether habeas corpus relief should be granted is a
question of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v.
State, 21 S.W.3d 901, 903 (Tenn. 2000)). Our review of the habeas corpus court’s
decision is, therefore, “de novo with no presumption of correctness afforded to the
[habeas corpus] court.” Id. (citing Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d
406, 408 (Tenn. 2006)). 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
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prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and
restraint.” T.C.A. § 29-21-101. 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. (5 Cold.) 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).

                                    Pretrial Jail Credits

               Citing the Washington County Detention Center document, the petitioner
claims entitlement to 73 days’ pretrial jail credit toward his misdemeanor sentences. The
2013 order granting pretrial jail credits reflects, however, that credit for these days was
included in the 857-day total awarded by that court. Although it is not clear from the
court’s order how the credits are to be distributed across the three conviction judgments
in that case, because the sentences are aligned consecutively, the petitioner is not entitled
to the same award of credits on each judgment of conviction. See, e.g., Marvin Rainer v.
David G. Mills, Warden, No. W2004-02676-CCA-R3-HC (Tenn. Crim. App., Jackson,
Jan. 20, 2006) (“A defendant incarcerated prior to trial who receives consecutive
sentences is only allowed pre-trial jail credits to be applied toward the first sentence.”);
see also, e.g., Elijah Truitt v. State, No. M2013-01848-CCA-R3-HC (Tenn. Crim. App.,
Nashville, Apr. 10, 2014); Timothy L. Dulworth v. Henry Steward, No. W2012-00314-
CCA-R3-HC (Tenn. Crim. App., Jackson, July 9, 2012). Only when the trial court orders
concurrent alignment of the sentences should the trial court include the award of pretrial
jail credits on each judgment in order to provide the full benefit of the credits against the
aggregate sentence. See, e.g., State v. Henry, 946 S.W.2d 833, 835 (Tenn. Crim. App.
1997). The defendant’s six-year sentence for cocaine possession equals 2,190 days and is
thus sufficient to subsume the entirety of the award of 857 days’ pretrial jail credits. The
petitioner is not entitled to a further award of 73 days’ credit toward the misdemeanor
convictions, a fact the petitioner tacitly admits in his amended petition for writ of habeas
corpus.

                             Work and Good Behavior Credits

              The petitioner claims entitlement to work and good behavior credits
pursuant to Code section 41-2-111 and 41-4-121. By its terms, Code section 41-2-111
applies to prisoners who have “been sentenced to the county jail or workhouse for any
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period of time less than one (1) year on either a misdemeanor or a felony.” T.C.A. § 41-
2-111(b). Code section 41-2-147 contains the provision that allows “reduction of the
prisoner’s sentence in the following manner: for each one (1) day worked on such duties
by the prisoner the sentence shall be reduced by two (2) days,” but it is limited in
application to “any person sentenced to a local jail or workhouse pursuant to the
provisions of former § 40-35-302, § 40-35-306, § 40-35-307 or § 40-35-311 or present §
40-35-302, § 40-35-306, § 40-35-307 or § 40-35-314.”2 Id. § 41-2-147(a), (b).
Additionally, “[a]ny prisoner receiving sentence credits under [Code section 41-2-147]
shall not be eligible for the sentence reduction authorized by § 41-2-111.” Id. § 41-2-
147(c). The petitioner, who is incarcerated in a TDOC facility, is ineligible for the good
behavior or work credits provided for in Code sections 41-2-111 or 41-2-147, and, in any
event, the petitioner would never be entitled to both. The award of sentence reduction
credits for TDOC inmates is governed by Code section 41-2-236.

               Most importantly, however, the award of these type of administrative
sentence reduction credits by either the local workhouse or TDOC is not a cognizable
claim for habeas corpus relief. Instead, “the proper avenue to address post-judgment jail
credit for prisoners is through the TDOC administratively.” Yates v. Parker, 371 S.W.3d
152, 155 (Tenn. Crim. App. 2012).

                                            Remaining Claims

              As indicated, the petitioner also alleges that the trial court “arbitrarily”
increased the percentage of service required for the misdemeanor convictions following
his conviction upon retrial and that the trial court imposed an illegal sentence in the form
of excessive fines. Neither of these claims were presented below, and, as a result, they
are waived. See Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2004) (“[A]n
issue raised for the first time on appeal is waived.”). We also note that this court has
previously informed the petitioner that a claim of excessive fines is not cognizable in a
habeas corpus proceeding, see Montague VI, slip op. at 4, and that the fines imposed in
his case are “not contrary to law,” see Montague VII, slip op. at 9.




2
         Code section 41-2-146 contains a provision making similar credits available for “any prisoner . . .
sentenced to imprisonment in a county workhouse or jail or . . . serving time in the county jail or
workhouse pursuant to an agreement with the department of correction.” T.C.A. § 41-2-146(a). Code
section 41-4-121, which deals with the power of the sheriff to house inmates in nearby facilities “when
the jail of the county is insufficient for the safekeeping of a prisoner,” has no application to this case. Id.
§ 41-4-121(a).
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                                       Conclusion

                Based upon the foregoing analysis, we affirm the judgment of the habeas
corpus court.


                                                  _________________________________
                                                 JAMES CURWOOD WITT, JR., JUDGE




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