        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs January 21, 2016

                   CARL JONES, JR. v. DOUG COOK, ET AL.

                  Appeal from the Circuit Court for Bledsoe County
                      No. 2015CR27     J. Curtis Smith, Judge


                  No. E2015-01371-CCA-R3-HC – Filed May 4, 2016


Pro se petitioner, Carl Jones, Jr., appeals the Bledsoe County Circuit Court‟s summary
dismissal of his petition for writ of habeas corpus. In this appeal, the petitioner argues
that his judgment of conviction is void because the trial court failed to award him jail
credit for time served on community corrections. Upon review, we reverse the judgment
of the habeas court and remand this matter for entry of an amended judgment awarding
the petitioner 259 days of jail credit.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                    Remanded

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Carl Jones, Jr., Pikeville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; James Michael Taylor, District Attorney General; and James W. Pope,
III, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

        On December 18, 2009, the petitioner received two consecutive two-year
sentences for violating Tennessee‟s habitual traffic offender law and for failure to appear
in case numbers 55416 and 57439, respectively. On July 21, 2010, he was granted
determinate release in case number 55416 and ordered to serve the remainder of that
sentence on probation.       The expiration of the petitioner‟s determinate release
probationary sentence in case number 55416 was November 4, 2013, and his
probationary sentence in case number 57439 expired on November 4, 2011. The day
after he received determinate release, the petitioner was sentenced to another three years‟
incarceration in the instant case, case number 58018, with the first five months to be
served in the Tennessee Department of Correction (TDOC) and the balance on
community corrections. Although the judgment ordered the petitioner‟s three-year
sentence to be served consecutively to “any unexpired sentence,” it specifically required
the petitioner to remain incarcerated until December 21, 2010, at which time he was to be
placed on community corrections until the expiration of his sentence on November 4,
2016.

        On April 7, 2011, a violation of community corrections supervision warrant was
issued based on the petitioner‟s positive test for marijuana use and absconder status. On
April 8, 2011, an arrest warrant and affidavit for a violation of probation was issued for
the petitioner based on the same grounds as alleged in the violation of community
corrections supervision warrant. The petitioner was arrested on February 25, 2012, and
remained incarcerated pending his revocation proceeding on November 8, 2012. The
trial court issued two separate orders, on November 13 and 14, 2012, revoking the
petitioner‟s determinate release probation and community corrections sentence. In the
trial court‟s order revoking the petitioner‟s determinate release probation, the trial court
ordered the petitioner to receive credit for time in confinement from February 26, 2012 to
November 8, 2012, a total of 256 days.1 In the trial court‟s order revoking the
petitioner‟s community corrections supervision, the trial court did not award any credit
for time served on community corrections. The record does not include an amended
judgment reflecting the petitioner‟s sentence after it was revoked.

       On June 9, 2015, the petitioner filed a petition for writ of habeas corpus, arguing
that he should have been credited for the time he spent incarcerated and on community
corrections prior to absconding. Specifically, the petitioner claimed that he began serving
his sentence in case number 58018 on July 22, 2010, because, rather than being released
to serve the remainder of his two previous sentences, he remained incarcerated until
December 21, 2010, pursuant to the terms of his sentence in that case. He was then
placed on community corrections until a warrant was issued for his arrest on April 7,
2011. On June 24, 2015, the habeas corpus court summarily dismissed the petition after
determining that the petitioner was not entitled to community corrections credit “because
he never completed the effective four-year sentence [in case numbers 55416 and 57439].
The trial court would not have revoked [those] sentences had they expired. Thus,
petitioner never reached the community corrections sentence to earn program credits.”
This timely appeal followed.


       1
           The record does not contain the transcripts from the petitioner‟s sentencing hearing in case
number 58018 nor the revocation proceeding for any of the petitioner‟s three cases. We glean these facts
from the judgments, revocation orders, and the “Violation of Community Corrections Supervision”
affidavit issued after the petitioner absconded, all of which were included in the record on appeal.
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                                          ANALYSIS

       On appeal, the petitioner contends that the habeas corpus court erred in summarily
dismissing his petition because the sentencing court failed to award him credit for the
time he spent incarcerated and on community corrections between July 22, 2010, and
April 7, 2011, a total of 259 days.2 The State contends that the habeas corpus court‟s
summary dismissal was proper.

        We begin our analysis of this issue by recognizing the distinction between the
revocation of a community corrections sentence and a probation revocation. “A defendant
sentenced to the community corrections program is actually serving his sentence while in
the program in lieu of incarceration, while service of the sentence is suspended for a
defendant placed on probation. See State v. James Ray Bartlett, No. M2002-01868-
CCA-R3-CD, 2004 WL 1372847, at *2 (Tenn. Crim. App. June 16, 2004) (internal
citations omitted). Therefore, “[a] defendant is not entitled to any credits toward the
sentence while on probation prior to a revocation.” Michael W. Carpenter v. State, No.
M2002-02187-CCA-R3-PC, 2003 WL 21024584, at *1 (Tenn. Crim. App. May 7, 2003).
By contrast, “[a] defendant whose community corrections sentence is revoked is entitled
to credit toward the sentence for time spent in community corrections prior to
revocation.” Carpenter v. State, 136 S.W.3d 608, 612 (Tenn. 2004); see also T.C.A. § 40-
36-106(e)(3)(B) (an offender serving a community corrections sentence is entitled to
credit “for actual time served in the community-based alternative program”); T.C.A.§ 40-
36-106(e)(4) (stating that upon revocation, “the court may resentence the defendant to
any appropriate sentencing alternative, including incarceration, for any period of time up
to the maximum sentence provided for the offense committed, less any time actually
served in any community-based alternative to incarceration). The award of credit for
time served on community corrections is mandatory, and the trial court has no authority
to deny credit. Carpenter, 136 S.W.3d at 612. As this court has stated, “[g]iven the
mandate of [c]ode section 40-36-106, the failure to award credit for time actually spent
on community corrections contravenes that statute and results in an illegal sentence,
which is . . . „an historically cognizable claim for habeas corpus relief.‟” Jackson v.
Parker, 366 S.W.3d 186, 190-91 (Tenn. Crim. App. 2011) (citing Tucker v. Morrow, 335
S.W.3d 116, 123 (Tenn. Crim. App. 2009), overruled on other grounds by State v. Brown,
479 S.W.3d 200, 212-13 (Tenn. 2015)) (noting that failure to award pretrial jail credit
does not render the sentence illegal in order to establish a colorable claim for relief under
Rule 36.1). Accordingly, a trial court‟s failure to award community corrections credit is a
cognizable claim in a habeas corpus proceeding. Id.
        2
          The petitioner initially raised three challenges on appeal. However, due to the amount of time
remaining on his sentence, he asks that we only consider his argument regarding his community
corrections credits. Accordingly, we address only whether the petitioner is entitled to relief based on that
claim.
                                                    -3-
       “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)). Accordingly, our review is de novo without a
presumption of correctness. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing
State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006)). A prisoner is guaranteed the
right to habeas corpus relief under Article I, section 15 of the Tennessee Constitution.
Tenn. Const. art. I, § 15; see T.C.A. §§ 29-21-101 to -130. “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)). A habeas
corpus petition challenges void and not merely voidable judgments. Summers, 212
S.W.3d at 255 (citing Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992)). “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 v. State, 995 S.W.2d 78, 83 (Tenn. 1999) (citing Dykes v. Compton, 978 S.W.2d
528, 529 (Tenn. 1998); Archer, 851 S.W.2d at 161-64). However, a voidable judgment
“is facially valid and requires proof beyond the face of the record or judgment to
establish its invalidity.” Summers, 212 S.W.3d at 256 (citing Dykes, 978 S.W.2d at 529).
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).

       The record in this case shows that the day after the petitioner was awarded
determinate release in his prior cases, he was sentenced by the trial court in the instant
case and ordered to remain in custody until December 21, 2010. The same judgment
ordered the petitioner‟s instant case to be served consecutively to his prior cases. The
consecutive nature of the petitioner‟s prior cases complicates allocation of jail credit
because the petitioner was, in fact, placed on community corrections in 2010 before his
probationary sentences were set to expire in 2013. As such, the petitioner correctly
asserts that he was serving his probation sentences and community correction sentence
simultaneously. This is supported by the fact that the trial court issued two separate
orders revoking the petitioner‟s probation and his community corrections sentence based
on the same violations. Despite the inconsistency in the judgment, the record shows that
from December 21, 2010, the date the petitioner was placed on community corrections,
through April 7, 2011, the date the warrant for violating community corrections was
issued, a total of 107 days, the petitioner was entitled to receive credit for his community
corrections sentence. See State v. McNack, 356 S.W.3d 906, 911 (Tenn. 2011) (holding
that defendants are entitled to credit for time served on community corrections up to the
                                            -4-
date the revocation warrant is issued); see also State v. Dennis Karr, No. E2014-01245-
CCA-R3-CD, 2015 WL 159363, at *3 n.3 (Tenn. Crim. App. Apr. 7, 2015) (citing
McNack for the same proposition). This is so because the petitioner was serving his
sentence on community corrections in lieu of confinement. We are further compelled to
note that the revocation order for the instant case failed to provide the petitioner with jail
credit for the period between July 22, 2010, the date the petitioner was sentenced and
confined, through December 21, 2010, the date the petitioner was ordered released and
placed on community corrections, a total of 152 days. Based on the foregoing authority
and analysis, the habeas corpus court erred by summarily dismissing the petition because
the petitioner stated a cognizable claim for relief. The following chart reflects the
relevant case numbers and dates supporting the above analysis.

          Case Number           Sentence          Sentence           Began                Release
                                                  Imposed           Serving
          55416              2 yrs (35%)         12/18/2009        12/18/2009         7/21/20103
          57439              2 yrs (35%)4        12/18/2009            ---                ---
          58018              3 yrs (35%),        7/22/2010         7/22/20105         4/7/20116
                                 split-
                             confinement,
                               6 mos. in
                                TDOC


       Based on the above analysis, the petitioner is awarded a total of 259 days of jail
credit on his three-year sentence of community corrections in case number 58018.

                                             CONCLUSION

       Finally, we note that the petitioner filed an additional motion with this court while
the case was pending, asking that we only review his claim regarding community
corrections credit and asks that we set aside his other claims, “due to the short amount of
time remaining on his sentence.” The other two claims initially raised are therefore
waived. Based on the foregoing authority and analysis, we reverse the judgment of the


       3
           Granted determinate release.
       4
           Consecutive to case number 55416.
      5
          Per special conditions, defendant “ordered to stay in jail until 12/21/2010.”
       6
           Absconded from community corrections.
                                                     -5-
habeas corpus court and remand this case to the Circuit Court for Bledsoe County for
immediate entry of an amended judgment reflecting the proper jail credit.


                                              _________________________________
                                              CAMILLE R. McMULLEN, JUDGE




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