                                                                                           08/08/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 20, 2017

                   JOEY GODWIN v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Trousdale County
                  No. 2016-CR-4572 John D. Wootten, Jr., Judge


                             No. M2017-00267-CCA-R3-HC


The Petitioner, Joey Godwin, appeals the Trousdale County Circuit Court’s denial of his
petition for habeas corpus relief from his 2007 convictions for three counts of possession
with the intent to sell 0.5 gram or more of cocaine and his effective ten-year sentence. The
Petitioner contends that the habeas corpus court erred by summarily denying relief because
his concurrent sentences were in direct contravention of Tennessee Code Annotated section
40-20-111(b) (2014). We affirm the judgment of the habeas corpus court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and TIMOTHY L. EASTER, JJ., joined.

Joey Godwin, Hartsville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; and
Tom P. Thompson, District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       This case involves the Petitioner’s criminal conduct in three cases. On November 22,
2003, the Petitioner was arrested in case number 16769 for possession with the intent to sell
0.5 gram or more of cocaine. On December 6, 2003, the Petitioner posted a bond and was
released from custody pending the outcome of the case. On January 13, 2004, the Petitioner
was arrested in case number 16770 for possession with the intent to sell 0.5 gram or more of
cocaine. Case number 16769 was pending at the time of the Petitioner’s arrest in case
number 16770. On October 5, 2004, the Petitioner posted a bond and was released from
custody relative to case number 16770. On May 1, 2005, while the two previous cases were
pending, the Petitioner was arrested in case number 7923 for possession with the intent to
sell 0.5 gram or more of cocaine. The judgments reflect that the Petitioner pleaded guilty as
charged in each case and received concurrent ten-year sentences pursuant to a plea
agreement. The judgments were entered on November 9, 2007.

        On February 1, 2011, the Petitioner was arrested in case number 9061 for possession
with the intent to sell and to deliver 0.5 gram or more of cocaine. Also on February 1, 2011,
the Petitioner was arrested in case number 9088 for possession with the intent to sell and to
deliver 0.5 gram or more of cocaine. On August 22, 2012, the Petitioner was found guilty
after a trial in case number 9061 for the sale but was acquitted of the delivery charge. The
Petitioner was, likewise, convicted in case number 9088 of the sale but acquitted of the
delivery charge. After a sentencing hearing, the trial court imposed consecutive thirty-year
sentences for each conviction and ordered the effective sixty-year sentence be served
consecutively with any other sentence the Petitioner was serving at the time of sentencing.
The transcript from the sentencing hearing attached to the habeas corpus petition reflects that
the Petitioner was released on parole in case numbers 16769, 16770, and 7923 at the time the
offenses were committed in case numbers 9061 and 9088. The Petitioner appealed his
convictions and sentences in case numbers 9061 and 9088, and this court denied relief. See
State v. Joey Godwin, No. W2013-01602-CCA-R3-CD, 2014 WL 895497 (Tenn. Crim. App.
Mar. 6, 2014), perm. app. denied (Tenn. Sept. 18, 2014). The Petitioner also sought post-
conviction relief in the same case numbers. The post-conviction court denied relief, and this
court affirmed the post-conviction court’s determinations. See Joey Godwin v. State, No.
W2015-01535-CCA-R3-PC, 2016 WL 7732245 (Tenn. Crim. App. July 13, 2016), perm.
app. denied (Tenn. Nov. 22, 2016).

        On December 1, 2016, the Petitioner filed the instant petition for a writ of habeas
corpus. He contended that his convictions and ten-year concurrent sentences imposed in
case numbers 16769, 16770, and 7923 were void because the sentences were in direct
contravention of Tennessee Code Annotated section 40-20-111(b), which requires
consecutive service when a defendant commits a felony while released on bail and the
defendant is convicted of both offenses. He argued his concurrent sentences were illegal
because he was released on bond in case number 16769 when the offenses were committed
in case numbers 16770 and 7923. In the petition, he acknowledged that his motivation for
obtaining habeas corpus relief is to have his convictions and sentences vacated in case
numbers 16769, 16770, and 7923 because those convictions were used to enhance his
sentences in case numbers 9061 and 9088. The Petitioner also conceded that his sentences in
case numbers 16769, 16770, and 7923 had expired but stated that he intends to challenge the
enhanced sentences in case numbers 9061 and 9088 if this court were to grant habeas corpus
relief in case numbers 16769, 16770, and 7923. He requested that his sentences be vacated
because they were illegal and that he be permitted to withdraw his guilty pleas.
        The habeas corpus court summarily denied relief after reviewing the record. The
court found that the Petitioner negotiated an effective ten-year sentence in case numbers
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16769, 16770, and 7923 and received the benefit of concurrent sentencing. The court found
that Code section 40-20-111(b) required consecutive service when a defendant commits an
offense while released on bail. The court found, however, that the judgments were not void
and that the trial court had jurisdiction to enter the judgments. The court found that
Tennessee Rule of Criminal Procedure 32(c)(2) required consecutive service of the
Petitioner’s sentences regardless of whether the judgments explicitly specify consecutive
service. The court found that Code section 29-21-101(b)(1) of the Habeas Corpus Act
prevented habeas corpus relief when a defendant is restrained of his liberty pursuant to
pleading guilty with a negotiated agreement relative to sentencing. The court determined
that the sentences were merely voidable, not void, and denied relief. This appeal followed.

        The Petitioner contends that the habeas corpus court erred by summarily denying
relief. He argues that his sentences in case numbers 16769, 16770, and 7923 are illegal
because our statutes and rules of procedure require consecutive service. The State concedes
that the ten-year sentences should have been imposed consecutively but that the Petitioner is
not entitled to habeas corpus relief because he received concurrent sentences based upon a
negotiated plea agreement pursuant to Tennessee Code Annotated section 29-21-101(b) and
because the sentences have expired.

        Habeas corpus relief is generally available to “[a]ny person imprisoned or restrained
of liberty” whose judgment is void or whose sentence has expired. T.C.A. § 29-21-101
(2012); see Tucker v. Morrow, 335 S.W.3d 116, 119-20 (Tenn. Crim. App. 2009). A
petitioner has the burden of proving by a preponderance of the evidence that a judgment is
void or that a sentence has expired. State v. Davenport, 980 S.W.2d 407, 409 (Tenn. Crim.
App. 1998). A void judgment exists if it appears from the face of the judgment or the record
that the convicting court lacked jurisdiction or authority to sentence the defendant or that the
defendant’s sentence has expired. Archer v. State, 851 S.W.2d 157, 161 (Tenn. 1993); see
Moody v. State, 160 S.W.3d 512, 515 (Tenn. 2005). In contrast, “[a] voidable judgment is
one that is facially valid and requires proof beyond the face of the record or judgment to
establish its invalidity.” Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007); see State v.
Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000).

       Post-conviction relief, not habeas corpus relief, is the appropriate avenue of relief for
certain voidable judgments. T.C.A. § 40-30-103 (2012); see Vaughn v. State, 202 S.W.3d
106, 115 (Tenn. 2006). A habeas corpus court may dismiss a petition for relief without an
evidentiary hearing or the appointment of counsel when the petition fails to state a
cognizable claim. Yates v. Parker, 371 S.W.3d 152, 155 (Tenn. Crim. App. 2012); see
T.C.A. § 29-21-109 (2012). The question of whether habeas corpus relief should be granted
is a question of law, and this court will review the matter de novo without a presumption of
correctness. Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005).

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       The Petitioner conceded in his habeas corpus petition that his sentences in case
numbers 16769, 16770, and 7923 have expired. The judgments reflect that the Petitioner
pleaded guilty in these cases in 2007 and received, generally, more than three years of
confinement credit. The Petitioner filed the instant habeas corpus petition in January 2016.
Therefore, we agree with the Petitioner and the State that the Petitioner’s sentences have
expired and conclude that his current incarceration is related to his effective sixty-year
sentence in case numbers 9061 and 9088.

        In Benson v. State, 153 S.W.3d 27, 30 (Tenn. 2004), the petitioner sought habeas
corpus relief, in relevant part, on the basis that although he received three concurrent
sentences for his theft- and drug-related convictions, Tennessee Code Annotated section 40-
20-111(b) and Tennessee Criminal Procedure Rule 32 mandated consecutive service because
he was released on bond at the time he committed the offenses. Our supreme court noted
that a statutory requirement for seeking habeas corpus relief is that a petitioner “must be
‘imprisoned or restrained of liberty’ by the challenged convictions.” Id. at 31 (quoting
T.C.A. § 29-21-101). The court concluded that because the petitioner was not “currently
imprisoned or restrained of liberty by the challenged convictions,” the petitioner was not
entitled to habeas corpus relief. Id. at 32 (citing Hickman v. State, 153 S.W.3d 16 (Tenn.
2004)); see Summers, 212 S.W.3d at 257). The court also determined that even if the
challenged convictions with expired sentences had been used to “enhance the sentences he
[was] currently serving, . . . this is not an adequate basis for habeas corpus relief to be
granted.” Benson, 153 S.W.3d at 32; see Hickman, 153 S.W.3d at 22-24.

       Therefore, we conclude that the Petitioner is not entitled to habeas corpus relief. The
challenged sentences have expired, and any use of these convictions to enhance sentences for
subsequent convictions is not a proper basis for habeas corpus relief.

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



                                           ______________________________________
                                           ROBERT H. MONTGOMERY, JR., JUDGE




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