        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 7, 2014

           TERENCE DAVIS v. CHERRY LINDAMOOD, WARDEN

                 Appeal from the Circuit Court for Hardeman County
                 No. CC-2013-CR-50      Joseph H. Walker, III, Judge


               No. W2013-01081-CCA-R3-HC - Filed March 19, 2014


The Petitioner, Terence Davis, appeals as of right from the Hardeman County Circuit Court’s
summary dismissal of his petition for writ of habeas corpus. The Petitioner contends that one
of his judgments of conviction is void because it fails to properly reflect his pretrial jail
credit. Following our 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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which A LAN E. G LENN and
R OGER A. P AGE, JJ., joined.

Terence Davis, Whiteville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Clark B. Thornton, Senior
Counsel, for the appellee, State of Tennessee.

                                        OPINION

       The Petitioner was arrested on April 22, 2006, on a warrant for rape and sexual
battery. He was released on bail on April 26, 2006. He was subsequently indicted on these
charges in Case No. 06-06292. On May 1, 2007, the Petitioner was indicted in Case No. 07-
03102 on new charges of aggravated burglary, aggravated rape, and statutory rape alleged
to have occurred in 2005. He was arrested on May 22, 2007, on a capias issued with the
second indictment. The Petitioner remained in custody until he entered guilty pleas in both
cases. He was sentenced to concurrent eight-year terms for each case.

        The judgment for Case No. 07-03102 shows that the Petitioner was awarded pretrial
jail credit from May 22, 2007 to February 23, 2009, in that case. The judgment for Case No.
06-06292 shows that Petitioner was awarded pretrial jail credit on that charge from April 23,
2006 to April 26, 2006, and also from September 7, 2007 to February 23, 2009. On April 10,
2013, the Petitioner filed a petition for writ of habeas corpus in the Hardeman County Circuit
Court asserting that he is missing approximately three months of pretrial jail credit in Case
No. 06-06292. On April 16, 2013, the circuit court summarily dismissed the petition.

        The Petitioner contends that his judgment is void because the trial court failed to
properly award him pretrial jail credit from May 22, 2007 to September 6, 2007, in Case No.
06-06292. Essentially, he argues that during that time period he was being held on both
charges, and thus should have had that time credited on both judgments. The State responds
that although the Petitioner claims that he was released on bail on the initial charge, he did
not provide any documentation showing that his bond had been revoked or suspended at the
time of his May 22, 2007 arrest. Therefore, the State concludes that the Petitioner has failed
to show that he was being held on the charges in Case No. 06-06292 during the time period
in question, and that the trial court’s allocation of pretrial jail credits was proper.

        Under Tennessee law, the “grounds upon which habeas corpus relief may be granted
are very narrow.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The writ will issue only
where the petitioner has established: (1) a lack of jurisdiction for the order of confinement
on the face of the judgment or in the record on which the judgment was rendered; or (2) that
he is otherwise entitled to immediate release because of the expiration of his sentence. See
State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000); Archer v. State, 851 S.W.2d 186, 189
(Tenn. 1993). The purpose of the 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, 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.” See Summers v. State,
212 S.W.3d 251, 256 (Tenn. 2007). A petitioner bears the burden of establishing a void
judgment or illegal confinement by a preponderance of the evidence. See Wyatt v. State, 24
S.W.3d 319, 322 (Tenn. 2000). A habeas corpus court may summarily dismiss a petition
without a hearing when the petition “fails to demonstrate that the judgment is void.”
Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004); Tenn. Code Ann. § 29-21-109.

        The failure of a trial court to credit a petitioner with mandated pretrial jail credit
results in an illegal sentence; therefore, it is a cognizable claim for habeas corpus relief.
Tucker v. Morrow, 335 S.W.3d 116, 123 (Tenn. Crim. App. 2009). To establish such a
claim, a petitioner must show “(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. As such, a petitioner “must exhibit to his

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petition sufficient documentation from the record to establish that he is indeed entitled to
pretrial jail credit . . . and that the trial court erroneously failed to award it.” Id. at 124.

       Furthermore, where a petitioner is serving concurrent sentences for multiple charges
and pretrial jail credit was not applied equally to both charges,“[t]he dispositive issue [on
appeal] is whether [the petitioner] was committed and held in pretrial custody on both
charges at the same time.” State v. Henry, 946 S.W.2d 833, 834-35 (Tenn. Crim. App.
1997). For example, if a petitioner was “incarcerated on [a] first offense and later separately
charged for [a] second offense, then he can receive pretrial jail credit on the second offense
only from the time of that charge.” Id. at 835.

        The Petitioner asserted that he was arrested in 2006 for Case No. 06-06292 and that
he made bail on that charge. In 2007, he was arrested on an indictment for a rape that
occurred in 2005 in Case No. 07-03102. The record shows that the Petitioner was committed
to the Shelby County Jail on May 22, 2007, solely for the indictment in Case No. 07-03102.
The record does not contain any documents demonstrating that the Petitioner’s bond had
been surrendered or revoked in Case No. 06-06292 at the time he was arrested on May 22,
2007. A petitioner is only entitled to equal pretrial jail credit for both concurrent sentences
when it is proven that, for the time period in question, the defendant was being held on both
charges. See Henry, 946 S.W.2d at 834-35. Without documentation that the Petitioner’s
bond had been revoked or surrendered when he was arrested the second time, the record is
insufficient to support his claim that he was in custody for both charges from May 22, 2007
to September 6, 2007. Therefore, the habeas corpus court did not err in summarily
dismissing the petition.

      In consideration of the foregoing and the record as a whole, the judgment of the
habeas corpus court is affirmed.




                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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