        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs June 17, 2014

       MARK ALAN DEAKINS v. BRUCE WESTBROOKS, WARDEN

             Direct Appeal from the Criminal Court for Davidson County
                         No. 4659    Steve R. Dozier, Judge


                 No. M2013-02122-CCA-R3-HC - Filed August 7, 2014


The petitioner, Mark Alan Deakins, filed a petition for a writ of habeas corpus, asserting that
he had “flattened” his sentences for his convictions of especially aggravated sexual
exploitation of a minor, sexual exploitation of a minor, and statutory rape. He alleged that
the Tennessee Department of Correction improperly calculated his pretrial jail credits and
sentencing credits. The habeas corpus court denied the petition, and the petitioner appeals.
Upon review, we affirm the judgment of the habeas corpus court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which JERRY L. S MITH and
R OGER A. P AGE, JJ., joined.

Mark Alan Deakins, Chattanooga, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Brent C. Cherry, Senior Counsel,
for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

        The petitioner was originally charged with twenty-three counts of especially
aggravated sexual exploitation of a minor, seven counts of sexual exploitation of a minor,
four counts of sexual battery, and two counts of statutory rape. State v. Mark Alan Deakins,
No. E2008-02761-CCA-R3-CD, 2010 WL 92535, at *1 (Tenn. Crim. App. at Knoxville, Jan.
11, 2010). On July 8, 2002, the petitioner pled guilty to one count of especially aggravated
sexual exploitation of a minor, one count of sexual exploitation of a minor, and one count
of statutory rape in exchange for the dismissal of the remaining charges. Id. Pursuant to the
plea agreement, the petitioner was sentenced to eight years, two years, and one year,
respectively. Id. As a Range I, standard offender, the petitioner was eligible for release after
serving thirty percent of his sentence. The trial court ordered the eight-year sentence and the
two-year sentences to be served concurrently with each other but consecutively to the one-
year sentence. Additionally, the court ordered the petitioner to serve the one-year sentence
for statutory rape in jail, followed by eight years on supervised probation. Id. The judgments
of conviction for especially aggravated sexual exploitation of a minor and for statutory rape
reflect that the trial court awarded the petitioner pretrial jail credits for November 4, 1998,
and from July 2, 2001, to July 8, 2002, for a total of 373 days.

       In August 2004, July 2007, and April 2008, the petitioner unsuccessfully sought
modification of the terms of his probation. Id. On May 14, 2008, a probation violation
warrant was issued, alleging that the petitioner had violated the terms of probation on his
eight-year sentence for especially aggravated sexual exploitation of a minor.1 Id. At the
conclusion of the revocation hearing,2 the trial court revoked the eight-year probationary
sentence and ordered the petitioner to serve the sentence in confinement. Id. at *7.

        Thereafter, on August 5, 2013, the petitioner filed a petition for a writ of habeas
corpus, alleging that he had “flattened” his eight-year sentence for especially aggravated
sexual exploitation of a minor and had been released from the Tennessee Department of
Correction (TDOC). He argued that the TDOC had failed to properly apply the 373 days of
pretrial sentencing credits granted by the trial court and the ninety-six days of pretrial jail
credits he had earned for good behavior.

        The habeas corpus court dismissed the petition, and the petitioner appeals.

                                              II. Analysis

        The determination of whether to grant habeas corpus relief is a question of law.
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we will review the trial
court’s findings de novo without a presumption of correctness. Id. Moreover, it is the
petitioner’s burden to demonstrate, 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).



        1
         The petitioner’s “one-year sentence for statutory rape and two-year sentence for sexual exploitation
of a minor had expired by the filing of the probation violation warrant.” Id. at *1 n.1.
        2
         The petitioner alleges that the revocation hearing took place on December 10-12, 2008. However,
nothing in the record verifies the date(s) of the revocation hearing.

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        Article I, section 15 of the Tennessee Constitution guarantees an accused the right to
seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). However,
“[s]uch relief is available only when it appears from the face of the judgment or the record
of the proceedings that a trial court was without jurisdiction to sentence a defendant or that
a defendant’s sentence of imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d
at 322; see also Tenn. Code Ann. § 29-21-101. In other words, habeas corpus relief may be
sought only when the judgment is void, not merely voidable. Taylor, 995 S.W.2d at 83. “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.’ We have recognized that a sentence imposed in direct contravention of a statute,
for example, is void and illegal.” Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000)
(quoting Taylor, 995 S.W.2d at 83).

        We note that as a prerequisite to habeas corpus relief, a petitioner “must be
‘imprisoned or restrained of liberty’ by the challenged convictions.” Benson v. State, 153
S.W.3d 27, 31 (Tenn. 2004) (quoting Tenn. Code Ann. § 29-21-101). In his brief, the
petitioner acknowledges that he “flatten[ed] his eight (8) year sentence on the especially
aggravated sexual exploitation offense on November 21, 2013 and was released from the
Tennessee Department of Correction.” Our supreme court has held that “[h]abeas corpus
relief does not lie to address a conviction after the sentence on the conviction has been fully
served.” Summers, 212 S.W.3d at 257. Accordingly, the petitioner is not entitled to habeas
corpus relief.

                                      III. Conclusion

       Finding no error, we affirm the judgment of the habeas corpus court.




                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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