        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs February 5, 2013

               JAMEEL CHILDRESS V. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                Nos. 98-01724, 98-01632, 98-02535-37, 98-028250-51
                               Mark Ward, Judge


                No. W2012-02104-CCA-R3-HC - Filed March 1, 2013




The petitioner, Jameel Childress, appeals the habeas corpus court’s summary dismissal of his
petition for the writ of habeas corpus. In January, 1999, the petitioner pled guilty, in seven
separate cases, to two counts of robbery, two counts of aggravated robbery, two counts of
unlawful possession of a controlled substance, and one count of theft of property over $1000.
Because all sentences imposed in the case were ordered to be served concurrently, the
petitioner received an effective sentence of nine years in the Department of Correction. On
appeal, he contends that the habeas corpus court erred in dismissing his petition because the
sentences imposed are illegal, as they were statutorily required to be served consecutively
because the petitioner was on bond when the offenses were committed. Following review
of the record, we affirm the dismissal of the petition for relief.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which A LAN E. G LENN
and C AMILLE R. M CM ULLEN, JJ., joined.

Jameel Childress, Mason, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Amy P. Weirich, District Attorney General; and Alanda Dwyer, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION
                      Procedural History and Factual Background


       In February, 1997, the petitioner was indicted and arrested for two counts of robbery.
Thereafter, he was released on bond. In the ensuing months of 1997, the petitioner
committed and was indicted for two counts of aggravated robbery, two counts of unlawful
possession of a controlled substance, and theft of property over $1000. The petitioner was
released on bond after the arrest in each case. In January, 1999, the petitioner, pursuant to
a negotiated plea agreement, pled guilty, in the seven separate cases, to each of the charged
offenses. The trial court thereafter imposed the agreed-upon sentences of three years for the
robbery convictions, nine years for the aggravated robbery convictions, eight years for the
possession convictions, and two years for the theft conviction. The sentences were ordered
to be served concurrently for an effective sentence of nine years in the Department of
Correction. No direct appeal appears to have been filed in the case.

       On July 18, 2012, the petitioner, proceeding pro se, filed the instant petition for the
writ of habeas corpus, although it is styled as a “Motion for Relief from Void Judgments.”
As his sole assertion in the petition, he contends that his judgments of conviction are void
because concurrent sentencing was imposed while consecutive sentencing was mandated by
Tennessee Code Annotated section 40-20-111 and Tenn. R. Crim. P. 32(c)(3). He makes this
assertion because he was released on bond in the earlier cases when he committed the latter
offenses. The petitioner did include documentation establishing that the later crimes were
committed while he was released on bond.

        The trial court summarily dismissed the petition for relief concluding the petitioner’s
claim was precluded by Tennessee Code Annotated section 29-21-101(b)(1), as amended in
2009, because his judgments were imposed “pursuant to a guilty plea and negotiated
sentence.” The court noted that the petitioner had failed to state a cognizable claim for relief
and, further, had failed to include the necessary attachments required by law. The petitioner
filed a timely notice of appeal.

                                           Analysis

       On appeal, the petitioner asserts that the trial court erred in summarily dismissing his
petition for the writ of habeas corpus. The determination of whether habeas corpus relief
should be granted is a question of law. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007).
Thus, this court’s review is de novo with no presumption of correctness given to the findings
and conclusions of the habeas corpus court.

       A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15

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of the Tennessee Constitution. See also T.C.A. § 29-21-101, et seq, (2010). However, 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). “[T]he purpose of a habeas
corpus petition is to contest void and not merely voidable judgments.” Id. at 163 (internal
quotations omitted). 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. In contrast,

       a voidable judgment is facially valid and requires the introduction of proof
       beyond the face of the record or judgment to establish its invalidity. Thus, in
       all cases where a petitioner must introduce proof beyond the record to establish
       the invalidity of his conviction, then that conviction by definition is merely
       voidable, and a Tennessee court cannot issue the writ of habeas corpus under
       such circumstances.

Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citations and quotations
omitted); see also Summers, 212 S.W.3d at 256. 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, 153 S.W.3d at 20. 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
the convictions are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

        It has been recognized that a sentence imposed in direct contravention of a statute is
void and illegal. Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000). The petitioner
is correct that Tennessee Code Annotated section 40-20-111(b) provides that if a defendant
commits a felony while on bail “and the defendant is convicted of both offenses, the trial
judge . . . shall order that the sentences be served cumulatively.” Further, Tennessee Rule
of Criminal Procedure 32(c)(3) also provides that:

       [w]hen a defendant is convicted of multiple offenses from one trial or when
       the defendant has additional sentences not yet fully served as the result of

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       convictions in the same or other courts and the law requires consecutive
       sentences, the sentence shall be consecutive whether the judgment explicitly
       so orders or not. This rule shall apply:

              ....

              (C) to a sentence for a felony committed while the defendant
              was released on bail and the defendant is convicted of both
              offenses[.]

Thus, the petitioner is correct in that his sentences should have been imposed consecutively,
as he was released on bond at the time he committed the latter offenses. However, as pointed
out by the habeas corpus court, in 2009, our legislature amended our habeas corpus statutes
to further restrict the grounds upon which relief could be granted. As relevant in this case,
the amendment provided that:

       (b) Persons restrained of their liberty pursuant to a guilty plea and negotiated
       sentence are not entitled to the benefits of this writ on any claim that:

              (1) The petitioner received concurrent sentencing where there was a
              statutory requirement for consecutive sentencing[.]

T.C.A. § 29-21-101(b) (2009). “Essentially, the General Assembly stated that three
categories of alleged grounds for relief, whenever a person is sentenced pursuant to a guilty
plea and a negotiated sentence, cause the judgment to be merely voidable and not void.”
Kenneth Rich v. State, No. W2011-00891-CCA-R3-HC (Tenn. Crim. App., at Jackson, Jul.
25, 2012) (emphasis in original). The amendment to the statute applies to all habeas corpus
petitions filed on or after June 11, 2009. Tommy F. Poe v. Tony Parker, Warden, No.
W2010-00679-CCA-R3-HC (Tenn. Crim. App., at Jackson, Oct. 22, 2010).

       Again, it was this amended provision upon which the habeas corpus court relied to
deny relief in this case. Indeed, the petitioner himself acknowledges that if that section is
applicable to his case, then he is entitled to no relief, and we agree. In this case, the
petitioner entered into and was sentenced pursuant to a negotiated plea agreement. His only
complaint in the petition was that he was sentenced concurrently instead of consecutively as
required by law. It appears clear that the statute in question would preclude relief.

      The petitioner argues that the statute, as amended, should not be applicable to his case
because it “constitutes an unconstitutional ex post facto law.” He argues it is
unconstitutional to apply the 2009 amended provisions to his 1999 convictions. However,

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the constitutionality issue is raised by the petitioner for the first time on appeal. “A party
may not raise an issue for the first time in the appellate court.” State v. Turner, 919 S.W.2d
346, 356-57 (Tenn. Crim. App. 1995). As point out by the State, “this rule applies to an
attempt to make a constitutional attack upon the validity of a statute for the first time on
appeal unless the statute involved is so obviously unconstitutional on its face as to obviate
the necessity for any discussion.” Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983).
That exclusion is not applicable in this case. Thus, by his failure to previously raise the issue,
the petitioner has waived its review on appeal.

        Regardless, as also pointed out by the State, the constitutionality issue is moot and not
necessary to our determination of the petitioner’s appeal. We note that our supreme court
has cautioned that “courts do not decide constitutional questions unless resolution is
absolutely necessary to determining the issues in the case and adjudicating the rights of the
parties.” State v. Taylor, 70 S.W.3d 717, 720-21 (Tenn. 2002). As explained below, review
is not necessary to resolve this case, and we decline to address the issue.

         In this case, the petitioner was convicted and sentenced in 1999 to an effective term
of nine years. That sentence expired several years previously, and the petitioner is no longer
in custody on these charges. Indeed, in his brief, the petitioner acknowledges that he is now
in federal custody awaiting sentencing on a federal charge. However, he contends that he
is still “restrained” by his 1999 convictions because those convictions will be used to
“drastically raise his potential sentence under the federal sentencing guidelines.” His
argument is incorrect.

        Under Tennessee Code Annotated section 29-21-101 (a), habeas corpus relief is only
available if the petitioner is “imprisoned or restrained of liberty.” While the term “restrained
of liberty” has been broadly defined to include any restraint on freedom of action or
movement, the Tennessee Supreme Court has interpreted this requirement to mean that the
challenged judgment must itself restrain the petitioner of his or her freedom of action or
movement. Hickman, 153 S.W.3d at 22-23; see also Summers, 212 S.W.3d at 257; Benson
v. State, 153 S.W.3d 27, 32 (Tenn. 2004). The court in Hickman concluded that “when the
restraint on a petitioner’s liberty is merely a collateral consequence of the challenged
judgment, habeas corpus is not an appropriate avenue for seeking relief.” Hickman, 153
S.W.3d at 23 (“Use of the challenged judgment to enhance the sentence imposed on a
separate conviction is not a restraint of liberty sufficient to permit a habeas corpus challenge
to the original conviction long after the sentence on the original conviction has expired.”);
see also Benson, 153 S.W.3d at 32.

       That is the situation which the petitioner finds himself in. He has served his sentences
and is no longer “imprisoned or restrained of liberty” by them. He complains now only of

                                               -5-
subsequent use of these convictions to enhance a federal sentence, which, as noted, is only
a collateral consequence. As such, the issue is moot, and he is not entitled to habeas corpus
relief. See Mack T. Transou v. Ricky Bell, Warden, No. M2010-00652-COA-R3-CV (Tenn.
Ct. App., Dec. 21, 2011). As pointed out, “[t]he doctrine of justiciability prompts courts to
stay their hand in cases that do not involve a genuine and existing controversy requiring the
present adjudication of present rights.” McIntyre v. Traughber, 884 S.W.2d 134, 137 (Tenn.
Ct. App. 1994).

                                     CONCLUSION

       Based upon the foregoing, the summary dismissal of the petition for writ of habeas
corpus is affirmed.




                                                   _________________________________

                                                   JOHN EVERETT WILLIAMS, JUDGE




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