        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 4, 2012

             ANTON CARLTON v. JOE EASTERLING, WARDEN

                 Appeal from the Circuit Court of Hardeman County
                 No. CC-2012-CR-63     Joseph H. Walker, III, Judge


              No. W2012-00798-CCA-R3-HC - Filed December 13, 2012


Anton Carlton (“the Petitioner”) filed a petition for writ of habeas corpus, alleging that he
received a sentence for an offense for which he was not convicted. The habeas corpus court
dismissed his petition without a hearing, and the Petitioner now appeals. After a thorough
review of the record and the applicable law, we affirm the habeas corpus court’s summary
dismissal of habeas corpus relief. However, we remand the case to the sentencing court to
enter a corrected judgment as specified in this opinion.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which A LAN E. G LENN and
R OBERT W. W EDEMEYER , JJ., joined.

Anton Carlton, pro se, Whiteville, Tennessee, as the appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; and Kyle Hixson, Assistant Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

                          Factual and Procedural Background

       The Petitioner was indicted for five counts of especially aggravated kidnapping, two
counts of aggravated robbery, one count of aggravated burglary, and two counts of theft. He
pleaded guilty to one count of especially aggravated kidnapping, two counts of aggravated
robbery, and one count of aggravated burglary. The plea agreement provided that the
Petitioner would plead guilty to the first count of especially aggravated kidnapping and that
the remaining four counts would be dismissed. In addition, the two counts of theft would be
dismissed. The trial court entered judgment against the Petitioner, indicating that the
Petitioner pleaded guilty to the second, and not the first, count of especially aggravated
kidnapping. Pursuant to the plea agreement, the Petitioner was sentenced to twenty-five
years for his especially aggravated kidnapping conviction, ten years for each aggravated
robbery conviction, and five years for his aggravated burglary conviction, to run
consecutively.

        On March 13, 2012, the Petitioner filed for habeas corpus relief.1 On March 19, 2012,
the habeas corpus court dismissed the Petitioner’s petition without a hearing, and the
Petitioner timely filed a notice of appeal. On appeal, the Petitioner asserts that his especially
aggravated kidnapping conviction “is void and should be set aside to correct a miscarriage
of justice.”

                                                  Analysis

       The decision to grant habeas corpus relief is a question of law, and, thus, our Court’s
standard of review is de novo, with no presumption of correctness. Faulkner v. State, 226
S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000);
Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d 406, 408 (Tenn. 2006)).

        Under the United States and Tennessee Constitutions, a convicted criminal enjoys the
right to pursue habeas corpus relief. U.S. Const. art. 1, § 9, cl. 2; Tenn. Const. art. I, § 15.
In Tennessee, however, this right has been governed by statute for over a century. See
Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968); Tenn. Code Ann. § 29-21-101 et seq.
(Supp. 2009) (“Any person imprisoned or restrained of liberty, under any pretense
whatsoever, except in cases specified in subsection (b) and in cases specified in § 29-21-102,
may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and
restraint.”).

      In Tennessee, the “grounds upon which habeas corpus relief will be granted are very
narrow.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). Moreover, “the purpose of a
habeas corpus petition is to contest void and not merely voidable judgments.” Potts v. State,
833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsom v. Henderson, 424 S.W.2d 186,
189 (Tenn. 1968)). “A void judgment is one in which the judgment is facially invalid

        1
          In his petition before the habeas corpus court, the Petitioner stated that he filed for post-conviction
relief in December 2005, alleging that he “was illegally sentenced outside the range provided in the plea
agreement.” Upon the post-conviction court’s determination that the sentence was legal, the Petitioner filed
a motion to reconsider, which also was denied. The Petitioner further stated that the post-conviction court
never appointed post-conviction counsel or held any hearings. None of these filings or orders are included
in the record before this Court.

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because the court lacked jurisdiction or authority to render the judgment or because the
defendant’s sentence has expired.” Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton, 978
S.W.2d 528, 529 (Tenn. 1998); Archer v. State, 851 S.W.2d 157, 161-64 (Tenn. 1993)). On
the other hand, “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) (citing Dykes, 978 S.W.2d at 529). A petitioner must prove that his
or her judgment is void or sentence has expired by a preponderance of the evidence. Wyatt
v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

       The Petitioner contends that, pursuant to his plea agreement, count two of his
indictment was to be dismissed upon his plea to count one of especially aggravated
kidnapping. However, he asserts that the judgment form indicated that he pleaded guilty to
count two, rendering his judgment void.

       The habeas corpus court considered the error in the judgment a “scrivener’s error”
which did not void the judgment. Rather, the habeas corpus court directed the clerk to “send
a copy to the Judge in Rutherford County for determination whether a corrected judgment
form should be entered.” The Rutherford County Circuit Court filed a “corrected judgment”
on April 9, 2012, finding the Petitioner guilty of especially aggravated kidnapping in count
one.2

       Clerical errors occur from a “mistake in filling out the uniform judgment document.”
Cantrell v. Easterling, 346 S.W.3d 445, 449 (Tenn. 2011). To remedy a clerical error in the
judgment, Rule 36 of the Tennessee Rules of Criminal Procedure governs our protocol. The
rule provides that “the court may at any time correct clerical mistakes in judgments, orders,
or other parts of the record, and errors in the record arising from oversight or omission.”
Tenn. R. Crim. P. 36.

        In the record before us, we do not have a transcript of the guilty plea hearing, but we
do have the plea agreement signed by both the Petitioner and the prosecutor. In that
agreement, the Petitioner was to plead guilty to Count 1 for especially aggravated
kidnapping, Counts 6 and 7 for aggravated robbery, and Count 8 for aggravated burglary.
Counts 2, 3, 4, 5, 9, and 10 were to be dismissed. Thus, it appears that the judgment
reflecting a conviction for Count 2, rather than Count 1, is nothing more than a clerical error.
The nature of the error is evidenced further by the Rutherford County Circuit Court filing a
corrected judgment on April 9, 2012, which convicted the Petitioner of especially aggravated


        2
          Contemporaneous to the filing of its appellate brief, the State filed in this Court a “Motion to
Consider Post-Judgment Facts.” In this motion, the State requested permission for this Court to consider the
April 9, 2012 corrected judgment, and this Court granted the motion.

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kidnapping as to Count 1. Therefore, the habeas corpus court did not err in summarily
dismissing the Petitioner’s claim. See Victor E. McConnell v. Howard Carlton, Warden, No.
E2008-00986-CCA-R3-HC, 2009 WL 1392544, at *4 (Tenn. Crim. App. May 19, 2009),
perm. app. denied (Tenn. Oct. 19, 2009) (stating that “‘mere clerical errors in the terms of
a sentence may not give rise to a void judgment’”) (quoting Coleman v. Morgan, 159 S.W.3d
887, 890 (Tenn. Crim. App. 2004)); Adrian Wilkerson v. Howard Carlton, Warden, No.
E2007-02453-CCA-R3-HC, 2008 WL 4949227, at *6 (Tenn. Crim. App. Nov. 20, 2008)
(“[T]he trial court did not err in dismissing the petition and finding that the erroneous
notations on Petitioner’s judgments of conviction for especially aggravated robbery and theft
are subject to correction pursuant to Rule 36 of the Tennessee Rules of Criminal
Procedure.”).

        In its appellate brief, the State notes that, pursuant to Rule 36 of the Tennessee Rules
of Appellate Procedure, further corrections may be necessary. The April 9, 2012 corrected
judgment does not mention that Count 2 was dismissed, as indicated in the original plea
agreement. Additionally, the other original judgments for Counts 6, 7, and 8 indicate that the
sentences for each of these convictions are to run consecutively to the sentence for the
conviction in Count 2, rather than Count 1. We agree with the State that further corrections
are necessary to rectify the clerical error in the original judgment of conviction. Therefore,
we remand this case to the Rutherford County Circuit Court to enter corrected judgments
reflecting that Count 2 is dismissed and that the sentences for the convictions in Counts 6,
7, and 8 run consecutively to the sentence for the conviction in Count 1.

                                       CONCLUSION

       In summary, the Petitioner has not presented any claim which entitles him to habeas
corpus relief. Accordingly, we affirm the habeas corpus court’s order dismissing the
Petitioner’s claim for relief. However, we remand the case to the Rutherford County Circuit
Court and direct the court to enter a corrected judgment in accordance with this opinion.




                                            ________________________________
                                            JEFFREY S. BIVINS, JUDGE




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