        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs August 24, 2010

               ROBERT EARL COLE v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Johnson County
                       No. X3243      Jean A. Stanley, Judge




               No. E2010-00081-CCA-R3-HC-FILED-AUGUST 3, 2011


Petitioner, Robert Earl Cole, appeals from the trial court’s order dismissing his petition for
writ of habeas corpus. After review of the entire record and the briefs of the parties, we
affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J. and A LAN E. G LENN, J., joined.

Robert Earl Cole, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; and Anthony Wade Clark, District Attorney General, for the appellee, the State of
Tennessee.

                                         OPINION

        Following a jury trial in the Shelby County Criminal Court in December 1991,
Petitioner was found guilty of second degree murder. The trial court imposed a Range II
sentence of forty years, with pre-trial jail credit from July 10, 1990, of 510 days. Petitioner
was released from incarceration to serve his sentence on parole in February 2003. As a result
of being convicted for aggravated assault in Shelby County, committed while on parole
status, a parole revocation proceeding was initiated against Petitioner. His parole for the
second degree murder sentence was revoked in September 2006.

        The judgment regarding Petitioner’s aggravated assault conviction reflects that he pled
guilty on September 13, 2006, and was sentenced to serve three years by incarceration in the
Shelby County workhouse. He was given 75 days of pre-trial jail credit. By law, service of
the three-year sentence for aggravated assault was required to be served consecutively to the
forty-year sentence for second degree murder, because it is a sentence for a felony committed
while on parole for a felony. Tenn. R. Crim. P. 32(c)(3)(A).

       A document designated as a “Notice of Board Action,” dated September 22, 2006, and
regarding Petitioner’s parole revocation proceedings, shows that because of his new felony
conviction, Petitioner’s parole was revoked, with an indication that he was to “Begin New
Sentence” on September 5, 2007. (Emphasis added). In another place on the “Notice of
Board Action” there is written the following comment: “Must [s]erve [u]ntil 9/5/2007 before
beginning service on new felony.”

       From the petition for habeas corpus, and both the Petitioner’s brief and his reply brief,
we glean that he is asserting he is entitled to habeas corpus relief from the three-year
sentence for aggravated assault because he has “flattened out” i.e., fully served, the sentence
for aggravated assault after he was again placed on parole on September 5, 2007, for the
forty-year sentence for second degree murder.

      The “Notice of Board Action” also states that the sentence expiration date for the
second degree murder conviction is December 6, 2024. (Emphasis added).

        Petitioner relies upon Tennessee Code Annotated section 40-28-123(a) which states
in pertinent part as follows:

              (a) Any prisoner who is convicted in this state of a felony, committed
       while on parole from a state prison, jail or workhouse, shall serve the
       remainder of the sentence under which the prisoner was paroled, or part of that
       sentence, as the [parole] board may determine before the prisoner commences
       serving the sentence received for the felony committed while on parole.
       (Emphasis added).

       Petitioner’s theory for his entitlement to habeas corpus relief is that he was placed
back on parole on September 5, 2007, for the second degree murder sentence, and began
serving the three-year sentence for aggravated assault on that same date. He attached a
document, apparently generated by the Department of Correction, that shows his sentence
for aggravated assault was fully served, i.e., “expired” on August 12, 2009. Hence, when he
was not released from custody by incarceration on August 12, 2009, Petitioner filed his
petition for habeas corpus relief on August 24, 2009. Petitioner asserts that he is only being
held pursuant to a sentence that has expired and is therefore entitled to release.



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       Petitioner’s analysis is flawed because he has equated an “expired” sentence with a
sentence that has been changed from service by incarceration to service by parole. Taking
everything in the light most favorable to Petitioner, he is not entitled to habeas corpus relief,
and the trial court did not err by dismissing the petition. As our Supreme Court has
explained,

       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” [quoting State v. Galloway, 45 Tenn. 326, 1868 WL 2122 at *4
       (Tenn. 1868)] 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).

       Petitioner asserts that since his sentence for aggravated assault has expired, and the
parole board paroled him in his second degree murder sentence of forty years in September
2007, he is entitled to be released from incarceration in the Tennessee Department of
Correction by way of habeas corpus relief. However, a change in the type of service of the
sentence of forty years for the second degree murder conviction from incarceration to parole
does not mean that the sentence has expired. Indeed, the “Notice of Board Action” relied
upon by Petitioner to show that he was paroled for the second degree murder and began
serving the sentence for aggravated assault in September, 2007, clearly sets forth that the
sentence of forty years for second degree murder does not expire until December 6, 2024.
Petitioner’s sentence will not expire for habeas corpus purposes until that date, whether the
sentence is served by incarceration or supervised parole.

       Taking every factual allegation of Petitioner as true, he has fully served his sentence
for aggravated assault, and he is being held in custody by the Department of Correction
despite the fact that the Board of Probation and Parole has decided to place him on parole for
the sentence. Petitioner may very well be entitled to relief; however, his sentence for second
degree murder has not expired. Accordingly, he is not entitled to relief by the writ of habeas
corpus.
                                       CONCLUSION

       As Petitioner is not entitled to habeas corpus relief, the judgment of the trial court is
affirmed.

                                                     ________________________________
                                                     THOMAS T. WOODALL, JUDGE

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