        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 11, 2015

        ANTONIO JOHNSON v. DAVID B. WESTBROOK, WARDEN

               Appeal from the Criminal Court for Davidson County
             No. 4777 & 4798   Seth Norman & Monte Watkins, Judges


                 No. M2014-01403-CCA-R3-HC – Filed May 19, 2015



Petitioner, Antonio Johnson, appeals the summary dismissal of his two petitions for writ
of habeas corpus challenging the legality of his sentences on the basis that the trial court
failed to properly award all requisite pre-trial jail credits. Following our extensive review
of the record, we affirm the judgments of the trial court.

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

ROGER A. PAGE, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and CAMILLE R. MCMULLEN, JJ., joined.

Antonio Johnson, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Victor S. Johnson III, District Attorney General, for the Appellee,
State of Tennessee.

                                         OPINION

        Petitioner filed two petitions for writ of habeas corpus attacking the alleged failure
to award jail credits in two of his criminal cases, thus, he claims, rendering his judgments
illegal. In petition number 4777 filed June 2, 2014, he challenges his sentence in
Montgomery County case number 40600007 (hereinafter referred to as -0007), claiming
that the judgment of conviction in that case is void because the trial court failed to award
the requisite jail credits. Petitioner challenges the resulting sentence from case number
4060303 (hereinafter referred to as -0303) on the same grounds in petition number 4798,
filed July 15, 2014.
                                     I. Procedural History

        The record reflects that the offense date in case number -0007 was July 19, 2005.
The capias was issued on December 8, 2005, and was served on January 5, 2006.
Petitioner posted bond the same date. Petitioner pleaded guilty to possession of cocaine
with the intent to sell, and the trial court entered the judgment of conviction on April 28,
2006. Petitioner‟s four-year sentence was suspended to probation. The State filed the
first probation violation report on June 26, 2007. Petitioner was arrested on the warrant
on June 29, 2007, and posted bond the same day. The first probation violation was
dismissed by the State on January 3, 2008. The State filed a second probation violation
report on November 6, 2008, and obtained and served the warrant the following day.1
Petitioner posted bond on November 25, 2008. Two amendments to the report and
warrant were made in January and April 2009. The probation violation was settled by the
parties on March 24, 2010, and the trial court issued the revocation order that day.

        The case docket history for case number -0303 indicates December 31, 2007, as
the offense date and March 4, 2009, as the date the capias was issued for petitioner‟s
arrest for additional charges of possession of cocaine with the intent to sell or deliver.
The capias was served on March 7, 2009, and petitioner posted bond on March 10, 2009.
Petitioner‟s jury trial on counts nine and ten of the indictment began on March 23, 2010,
and following a finding of guilty, the trial court revoked petitioner‟s bond on March 24.
Petitioner was sentenced to twelve years in the Tennessee Department of Correction to be
served at thirty-five percent release eligibility, consecutive to the four-year sentence in
case number -0007. The remaining counts of the indictment were resolved by a plea
agreement entered on February 22, 2011, which imposed a four-year sentence to be
served consecutively to the four-year sentence in case number -0007 and to the twelve-
year sentence in count nine of -0303, for an effective sentence of twenty years.

       Petitioner filed a motion in case number -0007 to correct jail credits on February
23, 2012. On April 5, 2012, the trial court held a hearing and issued an order correcting
petitioner‟s jail credits. On April 24, 2012, petitioner filed a subsequent pro se motion
asking the trial court to again adjust his jail credits. In denying petitioner‟s second
motion, the trial court noted, “This motion is denied. Accuracy of the sentence credits
previously reviewed and agreed upon by State and defense counsel.”

                                         III. Analysis

                           A. Habeas Corpus Standard of Review


1
   Petitioner was arrested on new charges on October 13, 2008, and was apparently served with this
probation violation warrant while he was incarcerated on those charges.
                                                   -2-
       The court‟s decision with respect to a petition for a writ of habeas corpus is a
question of law that we review de novo without a presumption of correctness. Hart v.
State, 21 S.W.3d 901, 903 (Tenn. 2000). Habeas corpus relief is available to a petitioner
only in the limited circumstances when the judgment is void on its face or the petitioner‟s
sentence has expired. Id. “A void judgment is one in which the judgment is facially
invalid because the court did not have the statutory authority to render such judgment.”
Id. (quoting Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)). Conversely, a
voidable conviction or sentence appears facially valid and requires the introduction of
proof beyond the face of the record or judgment to determine its deficiency. Taylor v.
State, 995 S.W.2d 78, 83 (Tenn. 1999) (citing Dykes, 978 S.W.2d at 529). The proper
method for attacking a voidable judgment is by a petition for post-conviction relief, not
habeas corpus. Id. (citing State v. McClintock, 732 S.W.2d 268, 272 (Tenn. 1987)).

        In habeas corpus proceedings, a petitioner must establish a void judgment or
illegal confinement by a preponderance of the evidence. Passarella v. State, 891 S.W.2d
619, 627 (Tenn. Crim. App. 1994). A habeas corpus court may summarily dismiss a
habeas corpus petition, without the appointment of counsel and without an evidentiary
hearing, if the face of the record or judgment fails to indicate that the convictions or
sentences are void. Tenn. Code Ann. § 29-21-109 (2000); Hogan v. Mills, 168 S.W.3d
753, 755 (Tenn. 2005).

                                  B. Petitioner‟s Claims

       There are two primary complaints regarding jail credits that are raised in habeas
corpus proceedings: failure to award pre-trial jail credits and improper calculation of
sentencing credits and parole dates. “[C]laims „relative to the calculation of sentencing
credits and parole dates‟ must be reviewed pursuant to the Uniform Administrative
Procedures Act rather than via a petition for writ of habeas corpus.” Tucker v. Morrow,
335 S.W.3d, 116, 122 (Tenn. Crim. App. 2009) (quoting Tenn. Code Ann.§ 41-21-
236(a)(2)(C) (2006)). Failure to award pre-trial jail credits, however, is cognizable in
habeas corpus proceedings. Because the award of pre-trial jail credits lies strictly within
the jurisdiction of the trial court rather than the department of correction, “any resort to
administrative avenues of relief to address the trial court‟s failure to award pretrial jail
credits would be futile.” Id. at 122 (citing Tenn. Code Ann. § 40-23-101(c)). Moreover,
“the trial court is required at the time of sentencing to allow a defendant pretrial jail
credit[s]. The [Department of Correction] is powerless to change what the trial court
awarded or failed to award.” Id. (citing State v. Greg Smith, No. E2003-01092-CCA-R3-
CD, 2004 WL 305805, at *2 (Tenn. Crim. App. Feb. 18, 2004) (Tipton, J., concurring)).
Therefore, petitioner‟s claim that he is entitled to relief because the trial court failed to
award pretrial jail credits that he earned pursuant to section 40-23-101(c) is cognizable in
a habeas corpus petition.

                                             -3-
       Tennessee Code Annotated section 40-23-101 provides, in pertinent part:

              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.

“„The language [of Code section 40-23-101(c)] leaves no room for discretion, and when
the word „shall‟ is used in constitutions or statutes it is ordinarily construed as being
mandatory and not discretionary.‟” Tucker, 335 S.W.3d at 123 (quoting Stubbs v. State,
393 S.W.2d 150, 154 (Tenn. 1965)) (alteration in original). Thus, pursuant to the statute,
a pretrial detainee has “an absolute right to credit for time in jail” spent in pretrial
incarceration arising out of the original offense for which he was convicted. Id. (citing
Trigg v. State, 523 S.W.2d 375, 375 (Tenn. Crim. App. 1975)). “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.” Id. (quoting Trigg, 523 S.W.2d at 376). “Thus, the trial court is statutorily required
to credit the defendant with all time spent in confinement pending arraignment and trial
on the offense or offenses that led to the challenged convictions.” Id. However, this
court has repeatedly rejected “double dipping” for credits from incarceration for two
separate and unrelated charges. State v. Jermain Sean Lipford, No. M2012-00137-CCA-
R3-CD, 2012 WL 4327207, at *2 (Tenn. Crim. App. Sept. 19, 2012).

       Petitioner challenges the following dates of incarceration, claiming that the trial
court failed to award pretrial credits for each period. Based on the petitions for writ of
habeas corpus, the judgment forms, the case docket history reports, and the Montgomery
County Sheriff‟s Office incarceration report for petitioner, we glean the following
pertinent dates of incarceration and reasons therefor:


Challenge Case             Date In:       Date Out:        Total      Reason:
Number: Number                                             Days:
1         -0007            1/5/06         1/5/06           1          Date of arrest;
                                                                      posted bond
2            unrelated     4/5/07         4/5/07           1          Arrested for agg.
                                                                      burglary; posted bond
                                              -4-
3              unrelated       4/17/07          4/17/07            1           Arrested for disorderly
                                                                               conduct; posted bond
4              -0007           6/29/07          6/29/07            1           VOP2 warrant served;
                                                                               posted bond
5              unrelated       10/13/08         11/25/08           43          Arrested on new
               & -0007                                                         charges; VOP warrant
                                                                               served (11/7/08);
                                                                               posted bond
6              unrelated       12/30/08         12/30/08           1           Arrested for possession
                                                                               of a controlled
                                                                               substance; posted bond
7              -0007           1/22/09          1/23/09            2           Amended VOP
                                                                               warrant; Posted Bond
8              -0303           3/7/09           3/10/09            3           Date of Arrest;
                                                                               Posted Bond
9              -0007           4/3/09           4/3/09             1           Amended VOP
                                                                               warrant; Posted Bond
10             unrelated       7/7/09           10/14/093          99          Arrested for simple
                                                                               possession of a
                                                                               controlled substance
11             -0303           3/24/10          5/11/10            48          Jury Verdict-Guilty;
                                                                               Bond Revoked

       Referring to the numbering as set forth in the table above, we note as a preliminary
matter that petitioner included all eleven of his challenges in his petition for writ of
habeas corpus and appeal in case number -0007 and listed his eighth, ninth, tenth, and
eleventh challenges in his petition and appeal in case number -0303. We surmise that by
including the challenges in both petitions and appeals, petitioner is under the mistaken
assumption that pre-trial jail credits must be awarded in every case he had pending,
regardless of the reason for the incarceration. This, of course, is false. See Jermain Sean
Lipford, 2012 WL 4327207, at *2. We will now address each challenged period of
incarceration in turn.

       Petitioner‟s challenges numbered one, eight, and eleven all involve periods of
incarceration for which the trial court awarded pre-trial jail credits in either -0007 or -
0303. As noted above, the sentences in case numbers -0007 and -0303 were to be served
2
    We will abbreviate proceedings related to petitioner‟s violation of his probation as “VOP” herein.
3
    This date was supplied by petitioner in his petition for relief. The Montgomery County Sheriff‟s
Department incarceration report that petitioner appended to his petition was printed on August 2, 2009,
and therefore does not bear a date of release for this period of incarceration. There is no independent
verification of this date contained in the record.
                                                   -5-
consecutively; therefore, he is not entitled to “double dip” and receive credits in both
cases. Petitioner is not entitled to further relief on these complaints. Challenge numbers
two, three, five,4 six, and ten involve periods of incarceration arising from arrests for
additional new charges that are unrelated to the cases addressed in these appeals. He is
not entitled to jail credits in these cases for those unrelated incarcerations. Id.

        We note that the only periods of incarceration that cannot be summarily addressed
herein are his fourth, seventh, and ninth complaints, each involving a one- or two-day
incarceration following being served with a violation of probation warrant or amended
warrant and posting bond in relation to case number -0007. The original judgment in -
0007 reflected one day of pre-trial credits. However, the record reflects that on April 5,
2012, the trial court issued an order correcting petitioner‟s pre-trial jail credits in that
case. On April 23, 2012, petitioner filed a pro se motion asking the trial court to again
adjust his pre-trial jail credits. In denying petitioner‟s second motion, the trial court
noted, “This motion is denied. Accuracy of the sentence credits previously reviewed and
agreed upon by State and defense counsel.” Our review of the record indicates that
petitioner failed to include a copy of the amended calculation of pre-trial credits for our
review. Thus, we are unable to conduct a review of the propriety of the pre-trial jail
credits for those four remaining days. Petitioner bears the burden of preparing a record
that “conveys a fair, accurate, and complete account of what transpired with respect to
those issues that are the bases of the appeal.” State v. Bobadilla, 181 S.W.3d 641, 643
(Tenn. 2005) (quoting Tenn. R. App. P. 24(b)). In the absence of an adequate record on
appeal, this court must presume that the trial court‟s rulings were supported by sufficient
evidence. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991) (citing Vermilye
v. State, 584 S.W.2d 226, 230 (Tenn. Crim. App. 1979)).

                                               CONCLUSION

       Following our extensive review of the record, the briefs of the parties, and the
applicable legal authority, we affirm the judgments of the habeas corpus court.



                                                         _________________________________
                                                         ROGER A. PAGE, JUDGE




4
    To be clear, petitioner‟s fifth challenge involves his garnering new charges for possession of a
controlled substance, a weapons violation, and criminal trespass, none of which are related to these cases.
However, during his period of incarceration on the unrelated charges, he was also served with a probation
violation warrant in case number -0007.
                                                   -6-
