                                                                                         03/02/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 20, 2016

             KENNETH L. LANGLEY v. STATE OF TENNESSEE

              Appeal from the Criminal Court for Cumberland County
                    No. 12-0018A       David Patterson, Judge
                      ___________________________________

                           No. E2016-01726-CCA-R3-HC
                       ___________________________________


The Petitioner, Kenneth Leroy Langley, appeals the summary dismissal of his petition for
writ of habeas corpus. The habeas corpus court found that it was without jurisdiction to
hear the petition because the Petitioner filed the writ in the incorrect county. Although
we hold that the habeas corpus court had jurisdiction, we nevertheless affirm the
dismissal of the petition.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JAMES CURWOOD WITT, JR., J., joined.

Kenneth L. Langley, Mountain City, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; and Bryant C. Dunaway, District Attorney General, for the appellee,
State of Tennessee.


                                        OPINION

       On August 15, 2012, the Petitioner pled guilty to burglary and theft of property
valued at over $1,000. The trial court sentenced the Petitioner to four years at thirty
percent for the burglary conviction and four years at thirty percent for the theft
conviction. The trial court ran the sentences concurrently and ordered the Petitioner to
serve the sentences on probation, with the first year to be supervised by the community
corrections program. In May of 2013, an affidavit of violation of community corrections
was sworn against the Petitioner for multiple violations. He pled guilty to the violation of
community corrections and was given a one-year extension of his community corrections
supervision on probation and sixty days in jail. On December 5, 2013, the Petitioner
again violated the terms of his community corrections supervision. Subsequently, he pled
guilty to the December 2013 violation. On April 3, 2014, the trial court then revoked the
Petitioner’s probation and ordered the Petitioner to “serve [the] balance” of his sentence
in prison “with credit for time served” in the county jail.

       On June 27, 2016, the Petitioner, while incarcerated in Johnson County,
Tennessee, filed a petition for writ of habeas corpus in the Criminal Court for
Cumberland County. He argued in his petition that the trial court failed to properly
award him credit for the time he served on community corrections. The habeas corpus
court dismissed the petition, finding that the court did not have jurisdiction to hear the
petition for writ of habeas corpus because the petition should have been filed in Johnson
County. See T.C.A. § 29-21-105 (“The [petition for writ of habeas corpus] should be
made to the court or judge most convenient in point of distance to the applicant, unless a
sufficient reason be given in the petition for not applying to such court or judge.”). After
the habeas corpus court’s dismissal of the petition, the habeas corpus court did, in fact,
issue an amended judgment to award the Petitioner eleven days of pretrial jail time credit
for time served before his guilty plea in 2012, which the Petitioner requested in a separate
claim in the petition. The Petitioner filed a timely notice of appeal.

                                       ANALYSIS

        On appeal, the Petitioner raises two issues. First, he contends that the trial court
erred by dismissing the petition for failure to comply with Tennessee Code Annotated
section 29-21-105, stating that he properly filed his petition in Cumberland County
because the Criminal Court for Cumberland County had the necessary records to correct
his illegal sentence. He also contends that upon the trial court’s decision to revoke his
community corrections sentence and order him to serve his sentence in confinement, the
trial court did not properly award him credit for the time he served on community
corrections. The State concedes that the Petitioner is “probably correct” regarding his
argument about proper venue. The State, however, argues that the trial court properly
sentenced the Petitioner and did, in fact, award credit for time served on community
corrections.

       “The determination of whether habeas corpus relief should be granted is a question
of law.” Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing Hart v. State, 21
S.W.3d 901, 903 (Tenn. 2000)). 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. Id. (citing State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006).



                                           -2-
        Article I, section 15 of the Tennessee Constitution guarantees a prisoner the right
to seek habeas corpus relief. However, the grounds for the writ are very narrow. Taylor
v. State, 995 S.W.2d 78, 83 (Tenn.1999). Habeas corpus relief is available “only when ‘it
appears upon the face of the judgment or the record 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)). “[T]he 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 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)). A voidable judgment “is facially valid and requires the
introduction of proof beyond the face of the record or judgment to establish its
invalidity.” Id.

       The burden is on the petitioner “to show by a preponderance of the evidence that
the sentence is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319,
322 (Tenn. 2000). A trial court may dismiss a habeas corpus petition without a hearing if
the petition fails to establish that the challenged judgment is void. T.C.A. § 29-21-109;
Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004).

        The procedural requirements governing the writ of habeas corpus “‘are mandatory
and must be followed scrupulously.’” Summers, 212 S.W.3d at 259 (quoting Archer, 851
S.W.2d at 165). A petition may be summarily dismissed if the Petitioner fails to comply
with all of the statutory procedural requirements. Id. at 260. Tennessee Code Annotated
section 29-21-105 states that an application for the writ of habeas corpus “should be
made to the court or judge most convenient in point or distance to the applicant, unless a
sufficient reason be given in the petition for not applying to such court or judge.” Our
supreme court has interpreted this provision to mean that the petition should be filed in
“the county where the petitioner is being held, unless a sufficient reason is given for not
doing so.” Carter v. Bell, 279 S.W.3d 560, 562-63 (Tenn. 2009).

       When the Petitioner filed the petition he was incarcerated in Johnson County, and
he filed his petition in Cumberland County, where he was convicted. In his petition, he
asserted that the Criminal Court of Cumberland County was the proper venue because it
was “the convicting court possessing the relevant records and retaining the authority to
correct an illegal sentence at any time.” This court has held that when a habeas corpus
petition raises a claim that the Petitioner’s sentence is illegal, “the fact that the convicting
court possesses relevant records and retains the authority to correct an illegal sentence at
                                             -3-
any time is a sufficient reason under Tennessee Code Annotated section 29-21-105 for
the petitioner to file in the convicting court rather than the court closest in point of
distance.” Davis v. State, 261 S.W.3d 16, 22 (Tenn. Crim. App. 2008). Accordingly, we
hold that the Petitioner properly filed his petition in the Criminal Court for Cumberland
County.

       Upon revocation of a community corrections sentence, the trial court has the
authority to modify the sentence, but it may not deny credit for time actually served in the
community corrections program, no matter how lackluster or unsuccessful the
defendant’s performance. T.C.A. § 40-36-106(e)(4); Carpenter v. State, 136 S.W.3d 608,
612 (Tenn. 2004). This court has previously held that a “trial court’s failure to award
community corrections credit is a cognizable ground for habeas corpus relief.” Jackson
v. Parker, 366 S.W.3d 186, 190-91 (Tenn. Crim. App. 2011). Our supreme court’s
decision in State v. Brown, 479 S.W.3d 200 (Tenn. 2015), casts doubt on the holding in
Jackson. We do not, however, reach this issue to resolve the instant case.

       Although the Petitioner and the State seem to believe the Petitioner was serving
his sentence on community corrections before revocation, we note that the record clearly
indicates that the Petitioner was ordered to serve his sentence on probation under the
supervision of community corrections. A probationer “is not entitled to credit for time
served on probation supervised by community corrections.” State v. Kendra Mahan, No.
M2014-02534-CCA-R3-CD, 2015 WL 7294560, at *4 (Tenn. Crim. App. Nov. 19, 2015)
(citing State v. Christopher Schurman, No. M2011-01469-CCA-R3-CD, 2012 WL
1657057, at *2 (Tenn. Crim. App. May 10, 2012)).

        Here, the Petitioner has failed to establish that he is entitled to relief. The
Petitioner argues that he has not received credit for the time he served while on
community corrections. The trial court ordered the Petitioner to “serve [the] balance of
[his] sentence in TDOC” and awarded the Petitioner pretrial jail time credit for time
served. We hold that the Petitioner is not entitled to community corrections credit
because he was, in fact, serving his time on probation. “‘In the event of revocation, a
defendant on probation receives no credit for time served, but a participant in the
community corrections program does.’” Christopher Schurman, 2012 WL 1657057, at
*2 (quoting State v. George C. Peery, III, No. E2002-01682-CCA-R3-CD, 2003 WL
21383220, at *6 (Tenn. Crim. App. June 13, 2003)). As such, the trial court properly
ordered the Petitioner to serve the balance of his sentence in prison with credit for pretrial
jail time. Accordingly, we conclude that the habeas corpus court properly dismissed the
petition, and the Petitioner is not entitled to relief.




                                            -4-
                            CONCLUSION

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




                                    ____________________________________
                                    JOHN EVERETT WILLIAMS, JUDGE




                                   -5-
