         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs April 10, 2012

       MIKEL SHANE HUTTO v. CHERRY LINDAMOOD, WARDEN

                  Appeal from the Circuit Court for Hardeman County
                  No. CC-11-CR-214      Joseph H. Walker, III, Judge


                  No. W2011-02451-CCA-R3-HC - Filed June 28, 2012


The Petitioner, Mikel Shane Hutto, appeals the Hardeman County Circuit Court’s summary
dismissal of his petition for writ of habeas corpus, alleging that he failed to receive statutorily
mandated pretrial jail credits for his sentences, thereby rendering the confinement illegal.
Upon review, we affirm the judgment of the habeas corpus court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and J EFFREY S. B IVINS, JJ., joined.

Mikel Shane Hutto, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; D.
Michael Dunavant, District Attorney General; and A. Wayne Carter, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                           OPINION

                                             FACTS

       The record indicates that on August 16, 2010, the Petitioner entered guilty pleas to
five counts of burglary of an automobile in three different case numbers: counts 2 and 14
of case number 10-301, counts 2 and 5 of case number 10-303, and count 1 of case number
10-305. The Petitioner was sentenced as a Range II, multiple offender to a sentence of three
years for each of the five counts.

       In case number 10-301, the trial court ordered count 14 to be served concurrently with
count 2. Although the trial court awarded the Petitioner pretrial jail credit in count 2 from
February 23, 2010, to August 16, 2010, no pretrial jail credit was awarded in count 14. In
case number 10-303, the trial court ordered count 5 to be served concurrently with count 2.
Although the trial court awarded the Petitioner pretrial jail credit in count 2 from February
23, 2010, to August 16, 2010, no pretrial jail credit was awarded in count 5. Finally, in case
number 10-305, the trial court ordered count 1 to be served concurrently with case numbers
10-301, 10-303, and 10-382.

        On October 21, 2011, the Petitioner filed a pro se petition for writ of habeas corpus
in Hardeman County Circuit Court, alleging that the judgments in count 14 of case number
10-301 and count 5 of case number 10-303 are void because they fail to reflect pretrial jail
credits from February 23, 2010 to August 16, 2010. On October 31, 2011, the habeas corpus
court entered an order summarily dismissing the petition. The Petitioner filed a timely notice
of appeal.

                                         ANALYSIS

       The Petitioner claims that the judgments in count 14 of case number 10-301 and count
5 of case number 10-303 are void because they fail to reflect mandatory pretrial jail credits.
In response, the State argues that the Petitioner is not entitled to relief because he has failed
to provide documentation showing that he was incarcerated “pending arraignment and trial”
for count 14 in case number 10-301 at the same time that he was incarcerated for count 2 of
that case number and failed to provide documentation showing that he was incarcerated
“pending arraignment and trial” for count 5 in case number 10-303 at the same time he was
incarcerated for count 2 of that case number. We agree with the State.

       “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)). Therefore, our review of the habeas corpus court’s decision
is de novo with no presumption of correctness. State v. Livingston, 197 S.W.3d 710, 712
(Tenn. 2006); Hart, 21 S.W.3d at 903.

        The grounds upon which a writ of habeas corpus may be issued are very narrow.
Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). “Habeas corpus relief is available in
Tennessee only when ‘it appears upon the face of the judgment or the record of the
proceedings upon which the judgment is rendered’ that a convicting court was without
jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of
imprisonment or other restraint has expired.” Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 337 (1868)). “[T]he purpose of
a habeas corpus petition is to contest void and not merely voidable judgments.” Potts v.



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State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsom v. Henderson, 424
S.W.2d 186, 189 (Tenn. 1968)).

       “A void judgment is one in which the judgment is facially invalid because the court
lacked jurisdiction or authority to render the judgment or because the defendant’s sentence
has expired.” Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton, 978 S.W.2d 528, 529
(Tenn. 1998); Archer, 851 S.W.2d at 161-64)). Moreover, it is the petitioner’s burden to
demonstrate, by a preponderance of the evidence, that the judgment is void or that the
confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

        If the habeas corpus court determines from the petitioner’s filings that no cognizable
claim has been stated and that the petitioner is not entitled to relief, the petition for writ of
habeas corpus may be summarily dismissed. Hickman v. State, 153 S.W.3d 16, 20 (Tenn.
2004). Further, the habeas corpus court may summarily dismiss the petition without the
appointment of a lawyer and without an evidentiary hearing if there is nothing on the face
of the judgment to indicate that the convictions are void. Passarella v. State, 891 S.W.2d
619, 627 (Tenn. Crim. App. 1994), superseded by statute as stated in State v. Steven S.
Newman, No. 02C01-9707-CC-00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim. App., at
Jackson, Mar. 11, 1998).

        The Petitioner alleges that the judgments in count 14 of case number 10-301 and in
count 5 of case number 10-303 are void because they fail to reflect mandatory pretrial jail
credits. A trial court’s failure to award pretrial jail credit is a cognizable claim for habeas
corpus relief. Tucker v. Morrow, 335 S.W.3d 116, 123 (Tenn. Crim. App. 2009). Pursuant
to Tennessee Code Annotated section 40-23-101(c), a trial court is required to award pretrial
jail credits for any time spent in confinement pending arraignment and trial:

       The trial court shall, at the time the sentence is imposed and the defendant is
       committed to jail, the workhouse or the state penitentiary for imprisonment,
       render the judgment of the court so as to allow the defendant credit on the
       sentence for any period of time for which the defendant was committed and
       held in the city jail or juvenile court detention prior to waiver of juvenile court
       jurisdiction, or county jail or workhouse, pending arraignment and trial. The
       defendant shall also receive credit on the sentence for the time served in the
       jail, workhouse or penitentiary subsequent to any conviction arising out of the
       original offense for which the defendant was tried.

       In Tucker v. Morrow, this court explained Code section 40-23-101(c):




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       The statute provides that a detainee has “an absolute right to credit for time in
       jail in ‘which he was committed pending his arraignment and trial’ and ‘for the
       time he served in the jail, workhouse or penitentiary subsequent to any
       conviction arising out of the original offense for which he was tried.’” Trigg
       v. State, 523 S.W.2d 375, 375 (Tenn. Crim. App. 1975) (quoting T.C.A. § 40-
       23-101(c)) (first emphasis added). “It is only when the time spent in jail or
       prison is due to or, as the statute says, ‘arises out of’ the offense for which the
       sentence against which the credit is claimed that such allowance becomes a
       matter of right.” Trigg, 523 S.W.2d at 376.

Tucker, 335 S.W.3d at 123. Thus, in order to receive habeas corpus relief, the petitioner
must establish: “(1) that he was incarcerated ‘pending arraignment and trial’ on the offense
or offenses that led to the challenged convictions or ‘subsequent to’ the challenged
conviction or convictions and (2) that the trial court failed to award credit for the
incarceration on the challenged judgment.” Id.

       Initially, we note that the Petitioner attached several TOMIS reports to his petition in
addition to the relevant judgment forms. This court has consistently held that TOMIS reports
may not be used to establish a claim for habeas corpus relief:

               To satisfy the procedural requirements for habeas corpus relief and to
       avert a summary dismissal, the petitioner must make the enumerated showings
       “with pertinent documents from the record of the underlying proceedings.”
       Summers, 212 S.W.3d at 262. Thus, a petitioner who claims entitlement to
       habeas corpus relief from a sentence rendered illegal by the trial court’s failure
       to award mandatory pretrial jail credits must exhibit to his petition sufficient
       documentation from the record to establish that he is indeed entitled to pretrial
       jail credit under Code section 40-23-101 as indicated above and that the trial
       court erroneously failed to award it. Summers clearly requires that documents
       supporting a claim for habeas corpus relief must come from the record of the
       underlying proceedings. Summers, 212 S.W.3d at 262. Because TOMIS
       reports are generated by the Department of Correction following an inmate’s
       transfer to prison, they would not be considered a part of the record of the
       underlying proceedings. In consequence, a TOMIS report cannot be used to
       establish a claim for habeas corpus relief. Any disagreement regarding the
       information in TOMIS reports should be addressed via the Uniform
       Administrative Procedures Act.

Id. at 123-24. Accordingly, we will not consider the TOMIS reports in this case.



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        The Petitioner cites Tucker v. Morrow in support of his claim for habeas corpus relief.
In Tucker, the petitioner filed a petition for writ of habeas corpus challenging his conviction
for aggravated burglary, which arose from the same indictment as his conviction for robbery.
Id. at 119. The petitioner received concurrent three-year sentences for these convictions but
was awarded pretrial jail credits only for the sentence related to the robbery conviction. Id.
at 122. The petitioner claimed that he was entitled to habeas corpus relief because the trial
court failed to award mandatory pretrial jail credits to the aggravated burglary sentence,
thereby rendering his confinement for that conviction illegal. Id. After concluding that the
relevant judgment forms supported the petitioner’s claim that he was improperly denied
pretrial jail credits in contravention of Code section 40-23-101(c), this court reversed the
judgment summarily dismissing the petition and remanded the case to the habeas corpus
court for entry of an order directing the trial court to amend the judgment form for the
aggravated burglary conviction to reflect the same pretrial jail credit as awarded for the
robbery conviction. Id. at 125.

        The State argues that Tucker v. Morrow is not controlling because the Petitioner has
failed to show that he was incarcerated pending arraignment and trial for count 14 in case
number 10-301 and count 5 in case number 10-303. We agree. The record shows that the
Petitioner committed the offenses of burglary of an automobile in counts 2 and 14 of case
number 10-301 on February 23, 2010. The Petitioner was placed in jail for count 2 on
February 23, 2010, because the Petitioner was given pretrial jail credit for count 2 starting
on this date. Significantly, the Petitioner was given pretrial jail credit for count 2 but not
count 14, despite the fact that these were concurrent sentences. The pretrial jail credit in
count 2 began on the date of the offense, February 23, 2010, and ended on August 16, 2010,
the date that the Petitioner entered his guilty pleas to counts 2 and 14. The Petitioner was
indicted for counts 2 and 14 of case number 10-301 on April 27, 2010.

        Similarly, the record shows that the Petitioner committed the offenses of burglary of
an automobile in counts 2 and 5 of case number 10-303 on February 21, 2010. The Petitioner
was placed in jail for count 2 on February 23, 2010, because the Petitioner was given pretrial
jail credit for count 2 starting on this date. Again, the Petitioner was given pretrial jail credit
for count 2 but not count 5, despite the fact that these were concurrent sentences. The
pretrial jail credit for count 2 began on February 23, 2010, two days after the Petitioner
committed the offenses in cases number 10-303, and ended on August 16, 2010, the date that
the Petitioner entered his guilty pleas to counts 2 and 5. The Petitioner was indicted for
counts 2 and 5 of case number 10-303 on April 27, 2010.

       The State argues that because the Petitioner has not attached a copy of the arrest
warrants for count 14 of case number 10-301 and count 5 of case number 10-303, he cannot
establish that he was incarcerated on these counts beginning on February 23, 2010. The State

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suggests that although the Petitioner committed counts 2 and 14 of case 10-301 on the same
date, it is possible that the Petitioner’s identity as the perpetrator in count 14 was not
discovered until sometime after he was arrested for count 2. The State makes the same
suggestion for counts 2 and 5 in case number 10-303. In such a scenario, the State argues
that “the petitioner would not necessarily be entitled to pretrial credit” in count 14 of case
number 10-301 or count 5 of case number 10-303.

        We agree with the State that the Petitioner is not entitled to pretrial jail credit in counts
14 or 5 unless he was actually incarcerated for these counts, which we cannot determine
without the relevant arrest warrants for counts 14 and 5. See Tucker, 335 S.W.3d at 123;
Trigg, 523 S.W.2d at 376; see also State v. Henry, 946 S.W.2d 833, 835 (Tenn. Crim. App.
1997) (stating that the defendant should “receive pretrial jail credit on the second offense
only from the time of that charge”). In order to successfully seek habeas corpus relief via an
illegal sentence claim, “the petitioner must attach sufficient documentation establishing the
illegality to his petition for writ of habeas corpus.” Id. (citing Summers, 212 S.W.3d at 261
(“In the case of an illegal sentence claim based on facts not apparent from the face of the
judgment, an adequate record for summary review must include pertinent documents to
support those factual assertions.”)). Because the Petitioner has failed to attach sufficient
documentation showing that he was incarcerated on count 14 of case number 10-301 and on
count 5 of case number 10-303 beginning on February 23, 2010, he is not entitled to relief.
The judgment summarily dismissing the petition for writ of habeas corpus is affirmed.


                                                       ______________________________
                                                       CAMILLE R. McMULLEN, JUDGE




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