        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 July 18, 2012 Session

              WILLIAM FISHER v. JERRY LESTER, WARDEN

                 Appeal from the Circuit Court for Hickman County
                    No. 11-CV-42      Timothy L. Easter, Judge




              No. M2012-00306-CCA-R3-HC - Filed September 28, 2012


The Petitioner, William Fisher, appeals from the Hickman County Circuit Court’s denial of
his petition for the writ of habeas corpus. He contends that his sentence has expired. We
affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and D. K ELLY T HOMAS, J R., JJ., joined.

James O. Martin, III, Nashville, Tennessee, for the appellant, William Fisher.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel; Kim
R. Helper, District Attorney General; and Michael J. Fahey, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

        The Petitioner was indicted in case number 01-579 for burglary of an automobile and
theft of $500 or less occurring on April 12, 2001. He was indicted in case number 01-776
for attempt to commit first degree murder and especially aggravated burglary occurring on
May 9, 2001. On November 19, 2001, he pleaded guilty to all of these charges, except the
attempted first degree murder charge was amended to attempt to commit second degree
murder. For the burglary of an automobile conviction, he received two years, six months’
confinement with “credit for time served.” For the theft conviction, he received eleven
months and twenty-nine days, with six months’ confinement and “credit for time served.”
For attempted second degree murder, he received an eight-year sentence, with six months’
confinement and “credit for time served.” He likewise received an eight-year sentence for
especially aggravated burglary, was ordered to serve six months, and was allowed “credit for
time served.” The burglary of an automobile judgment stated that the two-year sentence was
to be served concurrently with the sentence for the theft conviction and consecutively to the
sentences in case 01-776. The attempted second degree murder judgment stated that the
eight-year sentence was to be served concurrently with the sentence for the especially
aggravated burglary conviction and consecutively to the sentences in case 01-579.

       On February 10, 2010, a probation violation warrant was filed listing the four
conviction offenses. On November 1, 2010, the trial court revoked the Petitioner’s probation
and ordered him to serve his sentences. The Petitioner did not appeal.

       The Petitioner filed a Motion to Clarify Probation Revocation Order in which he
alleged that according to the Tennessee Department of Correction’s records, the two-year
sentence for the offenses in case 01-579 was consecutive to the eight-year sentence for the
offenses in case 01-776. He claimed that the eight-year sentence expired before the trial
court issued the revocation warrant. The Petitioner requested that the trial court enter an
order “clarifying the exact sentence” it ordered him to serve.

      The court filed an order in which it found that the Petitioner was arrested for case 01-
579 and posted bond, and that while released on bond, he committed the offense in case 01-
779. The court found that the Petitioner remained in jail after his arrest in case 01-779 and
eventually pleaded guilty in an agreement that disposed of both cases and ordered
consecutive sentences. The court found:

              Pursuant to Rule 32(c)(3)(C) of the Tennessee Rules of
              [Criminal] Procedure, Madison County case number 01-776
              must be consecutive to Madison County case number 01-579, as
              a matter of law, because the [Petitioner] was on bond for a
              felony (Madison County case number 01-579) when he
              committed another felony offense (Madison County case
              number 01-776).

The court concluded that the two-year sentence in case 01-579 had expired and was not
subject to revocation. The court also filed corrected judgments for case 01-579. The
judgment for the felony conviction, count 1, stated, “This is a corrected judgment in that the
reference in the original judgment indicating that the sentence must be served consecutively
to #01-776 has been deleted to reflect the intent of the Court and the parties that #01-776 is
consecutive to this docket number and not the opposite.”




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        The Petitioner filed the present habeas corpus action. He alleged that his eight-year
sentence in case 01-776 had expired and that he was being held illegally. He alleged that the
trial court erroneously interpreted Tennessee Rule of Criminal Procedure 32 to require that
the eight-year sentence for case 01-776 be served consecutively to the two-year sentence for
case 01-579 merely because he was on bond for the case that resulted in the two-year
sentence when the case that resulted in the eight-year sentence arose. The Petitioner alleged
that he began serving his eight-year sentence in case 01-776 first. He alleged that when he
was arrested for case 01-776, he did not surrender his bond for case 01-579 and that he
earned sentence credits for case 01-776 while both cases were pending. He alleged that
pursuant to Tennessee Code Annotated section 40-23-101(a), his sentence for case 01-776
began when he came into the custody of the sheriff and continued until he served the jail term
that was eventually imposed for that case, after which time he began serving the balance of
his sentences on probation. The Petitioner attached a document to his petition that reflected
email communication between his attorney and an employee of the Madison County Circuit
Court Clerk’s office. The pertinent communication from the clerk states, “Madison County
Circuit Court does not show any record of the bond being surrendered on docket # 01-579
(William Fisher).” He also attached a TOMIS Offender Sentence Letter dated August 8,
2011, reflecting that he received two days’ pretrial jail credit for case 01-579 and no credit
for pretrial jail behavior and that he received 194 days’ pretrial jail credit and 48 days’
pretrial jail behavior credit for case 01-776. The TOMIS letter also reflects that the sentence
for count 1 of case 01-579 is to be served consecutively to counts 1 and 3 of case 01-776.
It does not contain any notation of consecutive sentencing for the sentences in case 01-776.

       The trial court denied the petition. Regarding imposition of consecutive sentences
pursuant to Tennessee Rule of Criminal Procedure 32(c)(3)(C), it relied in part on State v.
Blanton for the proposition that “it is irrelevant whether the conviction for the Petitioner’s
offense, releasing him on bail, occurred prior to the conviction for the second offense,
occurring while the Petitioner was on bail, or vice versa.” See 926 S.W.2d 953, 961 (Tenn.
Crim. App. 1996). The court noted its previous order clarifying the revocation order and the
corrected judgments reflecting that the eight-year sentence in case 01-776 was to be served
consecutively to the two-year sentence in case 01-579. It found that the Petitioner failed to
prove that the revocation order resulting in his incarceration was void.

        On appeal, the Petitioner contends that the trial court erred in denying habeas corpus
relief. He argues that the sentence in case 01-776 had expired before the revocation warrant
was issued and could not, therefore, form a proper basis for the revocation order that led to
his incarceration. The State counters that the trial court did not err. We conclude that the
trial court properly dismissed the petition without a hearing.




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         Whether habeas corpus relief should be granted is a question of law that is reviewed
de novo with no presumption of correctness. State v. Livingston, 197 S.W.3d 710, 712
(Tenn. 2006); Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). In Tennessee, habeas corpus
relief is available only when it appears on the face of the judgment or the record that the trial
court was without jurisdiction to convict or sentence the petitioner or that the sentence has
expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). The purpose of the habeas
corpus petition is to contest a void, not merely a voidable, judgment. Taylor v. State, 995
S.W.2d 78, 83 (Tenn. 1999); 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.” Summers v. State, 212
S.W.3d 251, 256 (Tenn. 2007). A voidable judgment “is one that is facially valid and
requires proof beyond the face of the record or judgment to establish its invalidity.” Id. at
255-56. The burden is on the petitioner to establish that the judgment is void or that the
sentence has expired. State ex rel. Kuntz v. Bomar, 381 S.W.2d 290, 291-92 (Tenn. 1964).
The trial court, however, may dismiss a petition for a writ of habeas corpus without a hearing
and without appointing a lawyer when the petition does not state a cognizable claim for
relief. Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004); State ex rel. Edmondson v.
Henderson, 421 S.W.2d 635, 636-37 (Tenn. 1967); see T.C.A. § 29-21-109 (2010).

        The record reflects that the Madison County Circuit Court accepted the Petitioner’s
guilty pleas, sentenced him, and later revoked his probation. The record does not contain the
transcript of the revocation hearing, and we do not know whether the Petitioner challenged
the revocation warrant as untimely in those proceedings. The Petitioner did not appeal the
revocation order. See T.C.A. § 40-35-311(e)(2) (Supp. 2011) (appeal as of right of an order
revoking probation); T.R.A.P. 3(b) (same). Instead, he made a motion for the court to clarify
how the consecutive sentences were to be served. The court addressed the issue in a written
order and corrected judgments.

        The original judgments in case 01-576 stated that the two-year sentence was to be
served consecutively to the eight-year sentence in case 01-776. The original judgments in
case 01-776 stated the opposite, that the eight-year sentence was to be served consecutively
to the two-year sentence in case 01-579. The original judgments are erroneous because they
do not resolve which sentence is to be served first and which is to be served last. Although
the record does not reflect that the court explicitly found that the judgments in case 01-579
contained clerical mistakes, it is obvious that the court viewed those judgments to contain
clerical mistakes. In its corrected judgment for count 1 of case 01-579, the court used the
following language in the special conditions section: “This is a corrected judgment in that
the reference in the original judgment indicating that the sentence in this indictment must be

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served consecutively to #01-776 has been deleted to reflect the intent of the Court and the
parties that #01-776 is consecutive to this docket number and not the opposite.” (Emphasis
added.) The court’s written order also reflects that it interpreted Tennessee Rule of Criminal
Procedure 32(c)(3)(C) as requiring that he serve the sentence for the second offense
committed while on bond consecutively to the sentence for the first offense. Rule 32 does
not require a specific order of sentences when a defendant commits an offense while on bond
for a previous offense, only that there be consecutive service of the two sentences. Blanton,
926 S.W.2d at 961. That said, the order in which the sentences are imposed by virtue of the
judgments and corrected judgments was not illegal.

        The trial court had the authority to correct clerical mistakes in the judgments at any
time. See Tenn. R. Crim. P. 36. In the present case, the court exercised its authority to
correct the clerical mistakes regarding the order of the consecutive sentences. The Petitioner
did not seek to appeal the trial court’s action in correcting the judgments. Whether the court
made an error of law in its interpretation of Rule 32 when it corrected the clerical errors, the
corrected judgments do not reflect illegal sentences and do not form a basis for habeas corpus
relief.

       The Petitioner contends, in any event, that his eight-year sentence expired before the
Madison County court revoked his probation, despite the language of the judgment in case
01-776 imposing an eight-year sentence to be served consecutively to the two-year sentence
and the language of the corrected judgment in case 01-579 requiring that the two-year
sentence be served first. On their face, the judgment for counts 1 and 2 of case 01-776 and
the corrected judgment for count 1 of case 01-579 reflect that the two-year sentence has
expired but that the Petitioner’s eight-year sentence has not expired. Because the judgments
do not reflect that the eight-year sentence has expired, habeas corpus relief is not available.
See Archer, 851 S.W.2d at 164.

        The trial court did not err in dismissing the petition without a hearing. The
Petitioner’s claims are not properly the subject of a habeas corpus action. See Young v.
State, 101 S.W.3d 430, 433 (Tenn. Crim. App. 2002) (holding that a habeas corpus action
was not the proper avenue for a collateral attack on probation revocation proceedings).

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

                                            ___________________________________
                                            JOSEPH M. TIPTON, PRESIDING JUDGE




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