        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs September 24, 2013

          CARL P.E. MUNSEY v. JOHN T. HOWERTON, WARDEN

                  Appeal from the Criminal Court for Morgan County
                     No. 2013-CR-29     E. Eugene Eblen, Judge


                No. E2013-01139-CCA-R3-HC - Filed December 3, 2013


The petitioner, Carl P.E. Munsey, challenges his sentences for three 1978 convictions for
armed robbery. The petitioner’s claim is primarily based on an assertion that the sentencing
provisions of the statute he was sentenced under had been repealed by the legislature and his
sentences are therefore illegal. The habeas corpus court dismissed the petition without a
hearing. We conclude that the sentences are not illegal, and we affirm the judgment of the
habeas corpus court.

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

J OHN E VERETT W ILLIAMS, delivered the opinion of the Court, in which N ORMA M CG EE O GLE
and R OBERT W. W EDEMEYER, JJ., joined.

Carl P.E. Munsey, Wartburg, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; and John H. Bledsoe, Senior Counsel,
for the appellee, State of Tennessee.

                                         OPINION

                      FACTUAL AND PROCEDURAL HISTORY

       On October 10, 1978, a jury convicted the petitioner and co-defendant Roger Bowlin
of committing three armed robberies which took place in August 1978. The jury fixed the
punishment for each conviction at fifty years’ imprisonment, and the trial court elected to run
the sentences consecutively to one another so that the petitioner received an aggregate
sentence of one hundred and fifty years.

       In 1987, this Court affirmed the denial of a post-conviction petition filed by the
petitioner. Munsey v. State, CCA No. 96, 1987 WL 17306, at *1-2 (Tenn. Crim. App. Sept.
22, 1987). A few years later, the petitioner sought habeas corpus relief. The petitioner
asserted that Tennessee Code Annotated section 39-3901 (1975 & Supp. 1978), which at the
time of his trial contained language purporting to authorize the death penalty for armed
robbery, had been invalidated by the United States Supreme Court’s decision in Furman v.
Georgia, 408 U.S. 238 (1972) and that “it was unconstitutional for the jury to sentence him
for armed robbery pursuant to the statute.” Munsey v. State, No. 01C01-9209-CR-00299,
1993 WL 143544, at *1 (Tenn. Crim. App. May 6, 1993). This Court upheld the dismissal
of the petition, citing State v. Bowers, 673 S.W.2d 887, 889 (Tenn. Crim. App. 1984) for the
proposition that “previous case law did not abolish or change the definition of armed robbery
or invalidate a defendant’s conviction and sentence.” Munsey v. State, 1993 WL 143544, at
*1. The Court concluded that “[w]hile case law did effectively eliminate the unconstitutional
punishment of death from Tennessee’s old robbery statute, the other provisions of the statute
remained constitutionally sound, including the remaining sentencing penalties.” Id.

        The petitioner filed the instant habeas corpus petition on March 27, 2013. While the
petitioner does not allege that the armed robbery statute under which he was convicted is
void in its entirety, he contends that the sentencing provision employed was repealed y the
legislature and that, consequently, his sentences are illegal.

                                         ANALYSIS

       The right to habeas corpus relief is guaranteed under article I, section 15 of the
Tennessee Constitution. Although the writ may be sought at any time, the grounds upon
which relief may be granted are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn.
1999). The writ may issue “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) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (Tenn. 1868)). In other
words, a petitioner will not be granted relief unless he is able to establish that the judgment
he challenges is void rather than merely voidable. Hogan v. Mills, 168 S.W.3d 753, 755
(Tenn. 2005). A void judgment shows upon the face of the record a lack of jurisdiction in
the court rendering the judgment; a voidable judgment, on the other hand, “ is facially valid
and requires proof beyond the face of the record or judgment to establish its invalidity.”
Edwards v. State, 269 S.W.3d 915, 920 (Tenn. 2008) (quoting Summers v. State, 212 S.W.3d
251, 256 (Tenn. 2007)). A sentence imposed in direct contravention of a statute is void.
Summers, 212 S.W.3d at 256.

       The trial court is authorized to dismiss a petition without a hearing if the petition does

                                              -2-
not establish that the challenged judgment is void. Hogan, 168 S.W.3d at 755 (citing T.C.A.
§ 29-21-109). The denial of a petition for habeas corpus relief is a question of law and is
reviewed de novo with no presumption of correctness. Edwards, 269 S.W.3d at 919.

       At the time of the petitioner’s crimes, the robbery statute provided, in pertinent part:

              Robbery is the felonious and forcible taking from the person of
              another, goods or money of any value, by violence or putting the
              person in fear. Every person convicted of the crime of robbery
              shall be imprisoned in the penitentiary not less than five (5) nor
              more than fifteen (15) years; provided, that if the robbery be
              accomplished by the use of a deadly weapon[,] the punishment
              shall be death by electrocution, or the jury may commute the
              punishment to imprisonment for life or for any period of time
              not less than ten (10) years.

T.C.A. § 39-3901(a) (Supp. 1978). This language was originally put into place by Chapter
72, section 1 of the Public Acts of 1955. When the United States Supreme Court’s decision
was rendered in Furman v. Georgia, 408 U.S. 238 (1972), however, it became clear that the
death penalty, as it was imposed by the statute, was unconstitutional. Accordingly, in
Chapter 192 of the Public Acts of 1973, the legislature attempted to revise those sections of
the Code, including the robbery statute, which authorized the death penalty. Section 4 of
Chapter 192 of the 1973 Public Acts provided that the robbery statute “is amended by
deleting the following words from that section: ‘death by electrocution, or the jury may
commute the punishment to.’” After the change, the pertinent language read: “if the robbery
be accomplished by the use of a deadly weapon[,] the punishment shall be imprisonment for
life or for any period of time not less than ten (10) years.” T.C.A. § 39-3901 (1975).
However, this attempt to alter the robbery statute (and other statutes authorizing the death
penalty) was unsuccessful due to a captions clause violation in Chapter 192. State v. Hailey,
505 S.W.2d 712, 714-15 (Tenn. 1974); see Tenn. Const. art. I § 17. The invalidation of the
new law brought back into force the language and all of those provisions of the old law
which had not been declared unconstitutional under the United States Supreme Court’s new
death penalty jurisprudence. See T.C.A. 39-3901 (Supp. 1976); Collins v. State, 550 S.W.2d
643, 645 (Tenn. 1977). The statute, at the time of the petitioner’s conviction, thus contained
the language authorizing electrocution, although that provision was not applied due to the
Supreme Court’s decision in Furman.

       The State asserts that the petitioner premises relief on grounds which are identical to
those addressed in the petitioner’s previous habeas corpus action. The petitioner, however,
contends that in his prior petition, he sought to have his convictions declared void because

                                             -3-
the statute, in its entirety, was unconstitutional under Furman. He distinguishes his present
action by asserting that he does not challenge his convictions or premise relief on the
statute’s conflict with Furman; instead, he challenges only his sentences and bases relief on
an unreported Court of Appeals case dismissing a declaratory judgment action brought by
his co-defendant in Bowlin v. Walkup, No. 01A01-9805-CH-00246, 1999 WL 33087, at *1
(Tenn. Ct. App. Jan. 27, 1999).

       In Bowlin, the co-defendant filed a declaratory judgment action to have the armed
robbery statute declared unconstitutional. While the grounds of the co-defendant’s action
are not specified in the opinion,1 the Court of Appeals dismissed the case, holding:

                In light of the fact that the portion of the statute of which
                appellant now purports to complain was repealed by the General
                Assembly of Tennessee in Chapter 192, section 4 of the Public
                Acts of 1973, a full five years prior to Appellant’s indictment on
                the offenses for which he is now incarcerated, there is thus no
                justiciable controversy in this case and petitioner has neither
                standing nor interest in challenging this former statute.

Bowlin, 1999 WL 33087, at *1. The Bowlin opinion does not indicate that 1973 Public Acts,
Chapter 192, which purported to amend the robbery statute, was invalidated by Hailey, 505
S.W.2d at 714-15.

        The petitioner points to this language in the Bowlin opinion as evidence that
legislative action or judicial action (by the Court of Appeals in Bowlin) has voided the
entirety of that section of the statute which delineates a separate punishment for robbery
committed with a deadly weapon. See T.C.A. § 39-3901(a) (Supp. 1978). According to the
petitioner, because the punishment for robbery with a deadly weapon is completely
invalidated, the only statutorily authorized punishment is that for simple robbery – five to
fifteen years’ imprisonment. In other words, the petitioner believes that the “portion of the
statute” referred to in Bowlin includes the section authorizing the death penalty and
imprisonment for ten years to life. However, the petitioner misreads Bowlin. Even if the
Public Act referred to by the Court of Appeals had been valid, the “portion of the statute”
cited by the Bowlin opinion is limited to the sections authorizing “death by electrocution” or
commuting the punishment, and it does not extend to the other punishments, including life
in prison, authorized by the statute for the crime of robbery by the use of a deadly weapon.


        1
         According to the petitioner, the co-defendant claimed that the statute was unconstitutional because
it allowed the jury to commute a punishment, which the co-defendant alleged was a solely executive function
under article II, section 2 and article III, section 6 of the Tennessee Constitution.

                                                    -4-
        Insofar as the petitioner claims that the legislature abolished a separate punishment
for robbery committed with a deadly weapon in Chapter 192 of the Public Acts of 1973,
leaving intact only the punishment for simple robbery, his claim must fail for two reasons.
First, the Act which amended the sentencing provisions was held to be void in Hailey.
Hailey, 505 S.W.2d at 714-15. Second, the language of the Act clearly excises only the
portion of the statute referencing death and commutation, leaving intact the punishment range
of ten years’ to life imprisonment for robbery committed with a deadly weapon. 1973 Tenn.
Pub. Acts ch. 192 § 4. Accordingly, there is no merit in any claim that the petitioner’s
sentences are void because the sentencing provisions had been repealed through legislation.

        The petitioner denies that his current petition presents issues identical to those decided
in his previous habeas corpus petition. We nevertheless note that, insofar as he challenges
the constitutionality of the sentencing based on the language authorizing electrocution, this
Court’s 1993 decision also governs his claims. This Court, in addressing his previous habeas
corpus petition, concluded that, “[w]hile case law did effectively eliminate the
unconstitutional punishment of death from Tennessee’s old robbery statute, the other
provisions of the statute remained constitutionally sound, including the remaining sentencing
penalties.” Munsey v. State, 1993 WL 143544, at *1 (emphasis added). In other words,
while after Furman it was no longer constitutional to impose the death penalty as set forth
in the statute prohibiting armed robbery, the remaining range of punishment detailed in the
statute, spanning from ten years’ to life imprisonment, was unaffected. This Court has, after
Furman, upheld life sentences imposed for armed robbery convictions. See, e.g., State v.
Painter, 614 S.W.2d 86, 90 (Tenn. Crim. App. 1981) (concluding that life sentence was
authorized for armed robbery committed in 1979); Walker v. State, 544 S.W.2d 905, 907
(Tenn. Crim. App. 1976) (“Life imprisonment is a prescribed punishment for armed robbery,
and therefore is not excessive.”). Because this Court, in addressing the petitioner’s previous
habeas corpus filing, upheld as constitutional all portions of the statute other than the
provision for the death penalty – “including the remaining sentencing penalties” – the
petition was properly dismissed as previously determined insofar as it is premised on a claim
that the statutory punishment is unconstitutional. Munsey v. State, 1993 WL 143544, at *1.

                                       CONCLUSION

      Because the sentences are neither constitutionally nor statutorily void, we affirm the
dismissal of the petition.


                                                     _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE



                                               -5-
