        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               March 24, 2015 Session


             JOSHUA D. KRUSE v. STATE OF TENNESSEE
          DONALD WAYNE BOWMAN v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Blount County
            Nos. C20362 & No. C21562     Tammy M. Harrington, Judge




                            No. E2014-01141-CCA-R3-HC
                            No. E2014-01139-CCA-R3-HC
                             FILED-AUGUST 20, 2015




The petitioners, Joshua David Kruse and Donald Wayne Bowman, appeal the denial of
their petitions for the writ of habeas corpus. They argue that the habeas corpus court
erred in dismissing their petitions because their sentences of confinement have expired.
After thoroughly reviewing the briefs of the parties, the record, and the applicable law,
we conclude that the petitioners‟ sentences have not expired, and we affirm the judgment
of the habeas corpus court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and ROBERT L. HOLLOWAY, JR., JJ., joined.

Mack Garner, District Public Defender, and George H. Waters, Assistant District Public
Defender, Maryville, Tennessee, for the Appellants, Joshua David Kruse and Donald
Wayne Bowman.

Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Assistant
Attorney General; Mike Flynn, District Attorney General; and Shari Tayloe, Assistant
District Attorney General, for the Appellee, State of Tennessee.


                                       OPINION
                         FACTS AND PROCEDURAL HISTORY

                                         A. Petitioner Kruse1

   On December 2, 2011, Petitioner Kruse was prosecuted by information for theft of
property of $1,000 or more, a Class D felony. He pled guilty, was placed on two years of
supervised probation, and further proceedings were deferred pursuant to Tennessee Code
Annotated section 40-35-313(a)(1)(A).

       On June 13, 2012, the first of Petitioner Kruse‟s three probation violations was
reported. On January 11, 2013, after Petitioner Kruse waived his right to a hearing and
stipulated to the facts contained in the violation report, the trial court found that he was in
violation of the terms of his probation. The trial court revoked probation, entered a
judgment of conviction, and ordered him to serve a split confinement sentence of twenty-
four days in jail with the remainder of his sentence to be served on supervised probation.

        On May 6, 2013, a second probation violation was reported. Petitioner Kruse
waived his right to a hearing and stipulated to the facts contained in the violation report.
The trial court again found that Petitioner Kruse had violated his probation, and the court
revoked probation. The trial court ordered a split confinement sentence of ninety days in
jail and a return to supervised probation for the balance of the sentence. At that time, the
trial court also issued a nunc pro tunc order effective January 11, 2013, revoking
Petitioner Kruse‟s judicial diversion.2

       On December 4, 2013, a third probation violation was reported. Petitioner Kruse
waived his right to a hearing and stipulated to the facts contained in the report. The trial
court found that he was in violation of the terms of his probation and ordered that he
serve 120 days in jail and a transfer to Community Corrections for the remainder of the
sentence.

        On March 24, 2014, a warrant for violation of Community Corrections was issued.
Petitioner Kruse waived his right to a hearing, and the trial court found that he had
violated the terms of his Community Corrections. The trial court revoked his Community
Corrections and ordered Petitioner Kruse “to serve the sentence as previously ordered.”
The order stated that he was entitled to 234 days of jail credit based on the time served
for his prior revocations and eleven days for his time served on Community Corrections.



1
  The habeas corpus court consolidated both petitions for the hearing, and we will do the same for this
appeal.
2
  Entry of the judgment of conviction on June 11, 2013, terminated the deferral of further proceedings.
The nunc pro tunc order was not needed.
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                                   B. Petitioner Bowman

   On January 24, 2013, Petitioner Bowman was prosecuted by information and pled
guilty to one count of violation of the sex offender registry, a Class E felony, and one
count of domestic assault, a Class A misdemeanor. He was sentenced as a Range I
offender and received a two-year sentence for the violation of the sex offender registry
conviction and an eleven month and twenty-nine day sentence for the domestic assault
conviction, both to be served concurrently. The trial court ordered a sentence of split
confinement, with ninety days to be served in jail and the remainder of the sentence to be
served on supervised probation.

    After serving ninety days, Petitioner Bowman was released from jail. On April 16,
2013, a probation violation report was filed because Petitioner Bowman failed to report to
his probation officer within 48 hours of his release from jail. On May 20, 2013, the trial
court dismissed the violation warrant.

    On December 23, 2013, a second probation violation report was filed. Petitioner
Bowman waived his right to a hearing and stipulated to the facts contained in the report.
The trial court found that he was in violation of his probation. The trial court revoked his
probation and ordered him to serve a sentence of split confinement, with eighty days in
jail and the balance of his sentence on Community Corrections.

   On April 4, 2014, a Community Corrections violation report was filed. Petitioner
Bowman waived his right to a hearing and stipulated to the facts contained in the report.
The trial court found that the petitioner had materially violated the terms of his
Community Corrections. The trial court revoked his Community Corrections and ordered
him “to serve the sentence as previously ordered.” The trial court awarded Petitioner
Bowman 250 total days of jail credit based on his prior periods of incarceration and his
time on Community Corrections.

                                C. Habeas Corpus Petitions

        On June 4, 2014, both petitioners filed petitions for the writ of habeas corpus.
They argued that Tennessee Code Annotated section 40-35-501(a)(3) provided for the
determinate release of a defendant serving a felony sentence of two years or less once the
release eligibility date was reached. Because they received two-year sentences with a
release eligibility date of 30%, they would reach their release eligibility dates after
serving 219 days. They contended that because they had accrued more than 219 days in
jail that they were entitled to an immediate release.

       The habeas corpus court held a hearing on the petition. The State agreed that the
petitioners were eligible for determinate release but argued that certain administrative
procedures must be met before the release was effected. The State noted that the statute

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provided that the petitioners could not be released until at least ten days after the
Tennessee Department of Correction received the judgment and ten days after the
department notified the sheriff and the District Attorney, for a total of twenty days. The
State also observed that the court clerk had thirty days to forward judgments to the
Department of Correction, which then triggered the twenty-day period. The State argued
that there was a total of a fifty-day period that must elapse before a petitioner was entitled
to determinate release and argued that both petitioners were still within that time period.

        The petitioners responded that the only way to prevent an offender from receiving
determinate release was if the State filed a petition opposing the release, and they noted
that the State had not made any opposition to the release. The petitioners also argued that
if the time limits for notifying the Department of Correction and District Attorney‟s
office about an inmate‟s release eligibility date controlled the release date, an inmate
could be detained indefinitely because the Department of Correction did not notify the
District Attorney‟s office. The petitioners noted that the Department of Correction was
not responsible for calculating the release eligibility date of an inmate for determinate
release but that “the determination of eligibility for such probation is based solely upon
the length of the sentence as imposed by the sentencing Court.”

       The habeas corpus court stated that 40-35-501 set out:

       with more specificity than we usually find in these type of statutes, as far as
       the mechanism of the 30 days with the Clerk‟s office, the ten days with the
       District Attorney or the jail being notified, et cetera. The Department of
       Corrections has to be allowed to do their job as far as certifying sentence
       credits, doing paperwork to release as far as determinate release, because
       they will be released on determinate release and paperwork has to be
       forwarded to the Board of Probation and Parole and to other authorities, as
       well as by the statute they have to give the District Attorney‟s office or the
       Sheriff time to object.

The habeas corpus court found that the Department of Correction was in compliance with
the statute.    The court also found that the petitioners‟ incarceration was not
unconstitutional and that their right to due process had not been violated. As a result, the
court denied the petition for writ of habeas corpus and later issued a written order to the
same effect.

       The petitioners filed a timely notice of appeal. The petitioners also filed motions
for an appeal bond, which the habeas corpus court granted. The petitioners both signed
$500 bonds and were released on their own recognizance. The petitioners were required
to report to supervised probation on June 20, 2014, by 4:30 p.m. On June 23, 2014, the



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State filed a motion to revoke Petitioner Kruse‟s bond because he did not report to
supervised probation as ordered. The habeas corpus court granted the motion.3

                                                ANALYSIS

       The petitioners argue that they are entitled to habeas corpus relief because their
“sentence of imprisonment or other restraint has expired,” as they had already
accumulated enough jail credits to exceed their statutorily mandated release eligibility
date of 219 days. The State likens the petition to a “challenge to the calculation and
determination of a release eligibility date and the denial of parole” and contends that the
petitioners have not stated a cognizable claim for habeas corpus relief.

        Article I, section 15 of the Tennessee Constitution guarantees the right to seek
habeas corpus relief. However, the grounds for the writ are very narrow. Archer v. State,
851 S.W.2d 157, 162 (Tenn. 1993). Habeas corpus relief is appropriate “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.” Id. at 164 (citation omitted). The writ may be used to correct judgments
that are void, rather than merely voidable. Taylor v. State, 995 S.W.2d 78, 83 (Tenn.
1999). A judgment is void when it “is facially invalid because the court lacked
jurisdiction or authority to render the judgment or because the defendant‟s sentence has
expired.” Id. A voidable judgment “is one which is facially valid and requires the
introduction of proof beyond the face of the record or the judgment to establish its
invalidity.” Id. This court reviews the dismissal of a habeas corpus petition de novo with
no presumption of correctness given to the conclusions of the habeas corpus court.
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007).

        Tennessee Code Annotated section 40-35-501 governs release eligibility for
imprisoned offenders. Section 40-35-501(a)(3) provides for what is known as
determinate release, as “[n]otwithstanding any other law, inmates with felony sentences
of two (2) years or less shall have the remainder of their sentence suspended upon
reaching their release eligibility date.” (emphasis added). This code section further states
that “[t]he department of correction shall notify the district attorney general and the
appropriate sheriff, jail administrator, workhouse superintendent or warden of the release
eligibility date of all felons with sentences of two (2) years or less in the institution.” Id.
Additionally, the statute provides that no inmate shall be released under this section until
at least ten days after the department of correction is notified of the sentence and ten days
after the district attorney is notified of the release. T.C.A. § 40-35-501(a)(4). The district
attorney may challenge the release only on the grounds that the offender violated prison
rules or is a threat to public safety. T.C.A. § 40-35-501(a)(6). Finally, the statute

3
    The record does not reflect whether Petitioner Kruse was ever arrested after his bond revocation.
                                                       5
indicates that the court clerk has thirty days to send a copy of the felony conviction to the
Department of Correction. T.C.A. § 40-35-501(s).

        An inmate with a felony sentence greater than two years is eligible to serve the
remainder of the sentence on parole after reaching their release eligibility date. T.C.A. §
40-35-501(a)(1). The release eligibility date does not guarantee release; it simply
guarantees that the inmate is eligible for release. State v. Schofield, 368 S.W.3d 457, 463
(Tenn. 2012) (“Release on parole is a privilege, not a right.”). The Department of
Correction is responsible for calculating this release eligibility date. T.C.A. § 40-35-
501(r). However, release pursuant to Tennessee Code Annotated section 40-35-501(a)(3)
“is actually to probation, not parole, for the portion of the sentence left unserved.” State
v. Bartholomew, 278 S.W.3d 268, 277 (Tenn. 2009). As a result, “in sentences of two
years or less, defendants have more than the mere hope of release. Instead, they have a
right, based upon Tennessee Code Annotated section 40-35-501(a)(3) to have the
remainder of their sentence suspended upon reaching their release eligibility date.” State
v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005).

       As the petitioners correctly note, this court has consistently interpreted Tennessee
Code Annotated section 40-35-501(a)(3) to mean that a trial court cannot initially
sentence a defendant with a felony sentence of two years or less to a longer period of
confinement than their release eligibility date. State v. Gary M. Carter, No. M2006-
02341-CCA-R3-CD, 2008 WL 544629, at *4 (Tenn. Crim. App. Feb. 21, 2008); State v.
Kristi Dance Oakes, No. E2006-01795-CCA-R3-CD, 2007 WL 2792934, at *12 (Tenn.
Crim. App. Sept. 27, 2007); State v. Henry Marshall, Jr., No. W1999-01159-CCA-R3-
CD, 2001 WL 91950, at *6 (Tenn. Crim. App. Jan. 26, 2001); State v. John W. Hill, No.
01C01-9802-CC-00072, 1999 WL 92948, at *2 (Tenn. Crim. App. Feb. 25, 1999). This
court has also granted habeas corpus relief to a defendant whose sentence exceeded his
release eligibility date. Jonathan Thornton v. State, No. E2003-00393-CCA-R8-PC,
2003 WL 1233478, at *2 (Tenn. Crim. App. Mar. 17, 2003) (concluding that a defendant
convicted of a Class D felony and sentenced as a Range I offender to nine months‟
confinement with the remainder on probation was illegal and modifying confinement to
7.2 months, which was the release eligibility date for a Range I offender with a two-year
sentence).

       To the extent, however, that the petitioners interpret the statute to provide for an
automatic suspension of a sentence in which probation has previously been revoked, they
are mistaken. Here, both petitioners accrued jail and Community Corrections credit in
excess of 219 days as a result of prior probation revocations, but they never explicitly
received “determinate release.” Under the petitioners‟ reading of the statute, their prior
sentence credits entitled them to immediate determinate release and prevented any
additional period of incarceration from the trial court‟s order that they serve their
sentences “as ordered.” Determinate release is a form of legislative largess that affords
an offender an early release from a felony sentence of two years or less. Probation is also

                                             6
a form of largess that reduces an offender‟s time in confinement. Having already
received and violated the largess of probation, the petitioners argue that they are now
entitled to determinate release. In essence, the petitioners advocate for a second bite at
the apple of early release.

       Tennessee Code Annotated section 40-35-501(a)(7)(A) provides the trial court
with authority to revoke probation pursuant to Tennessee Code Annotated section 40-35-
311. The statute further provides that “[a]ny defendant whose probation has been
revoked pursuant to this subsection (a) is not eligible for release on the same sentence
pursuant to the terms of subdivision (a)(3).” Id. We interpret this sentence to mean that
once a sentence is suspended to probation and that probation is revoked, the offender is
no longer entitled to determinate release, regardless of prior periods of incarceration.
Instead, the trial court is authorized to order the offender to serve their sentence “as
originally entered, less any credit for time served, plus any credits earned and retained by
the inmate.” T.C.A. § 40-35-501(a)(7)(A). Here, both petitioners had suspended
sentences that were revoked. Therefore, we conclude that the trial court did not impose
an illegal sentence when it ordered the petitioners to serve their sentences “as ordered.”
The petitioners are not entitled to relief.

                                        CONCLUSION

       Based upon the foregoing, we affirm the judgment of the habeas corpus court.




                                                 _________________________________
                                                 JOHN EVERETT WILLIAMS, JUDGE




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