        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs April 26, 2011

           GARY WAYNE CALHOUN v. DAVID MILLS, WARDEN

             Direct Appeal from the Criminal Court for Morgan County
                     No. 2010-CR-48    E. Eugene Eblen, Judge


               No. E2010-01022-CCA-R3-HC - Filed February 6, 2012


The Criminal Court of Morgan County granted habeas corpus relief to the Petitioner, Gary
Wayne Calhoun, for convictions in the Criminal Court of Sullivan County for “bringing
stolen property into the State valued in excess of $200.00” in case number 21,478 and for
“simple robbery” in case number 22,532. The Respondent, David Mills, Warden, has
appealed. After a thorough review of the record, we reverse the judgment of the habeas
corpus court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS, J., joined. D AVID H. W ELLES, S P.J., not participating.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; and Russell Johnson, District Attorney General, for the appellant, the State of
Tennessee.

Dan R. Smith, Johnson City, Tennessee, for the appellee, Gary Wayne Calhoun.

                                        OPINION

       The case sub judice is not Petitioner’s first habeas corpus proceeding concerning
Sullivan County case numbers 21,478 and 22,532. See Gary Wayne Calhoun v. Howard W.
Carlton, Warden, No. E2005-00001-CCA-R3-HC, 2006 WL 433680 (Tenn. Crim. App. Feb.
23, 2006) reh’g denied (Calhoun I). In Calhoun I, Petitioner appealed from the trial court’s
dismissal of his habeas corpus petition challenging the Sullivan County convictions in
addition to two convictions in Washington County, and one conviction in Carter County.
This Court reversed the trial court’s judgment in the Carter County conviction but affirmed
the dismissal of the habeas corpus petition as to the Sullivan County and Washington County
convictions. Id. at *5.

      Pertinent to the issue presented by the State in the instant appeal, this Court in
Calhoun I set forth the following facts regarding the sentencing structure of the Sullivan
County convictions:

        On March 23, 1988, the [petitioner] pled guilty in Sullivan County to one
        count of bringing stolen property into the state, and the trial court sentenced
        the [Petitioner] to seven years incarceration. On May 31, 1988, the
        petitioner pled guilty in Sullivan County to one count of armed [sic]
        robbery, and the trial court sentenced him to fifteen years, ordering the
        [petitioner] to serve the seven-year sentence imposed on March 23, 1988,
        consecutively to the fifteen-year sentence imposed on May 31, 1988.

Calhoun I at *1

         There are no transcripts of the guilty plea hearings in the record on appeal. There are,
however, two judgments concerning Sullivan County case number 21,478 (conviction of
bringing stolen property into the State with a sentence of seven years) in the record. Neither
judgment is marked as an “amended” judgment. The first “case number 21,478” judgment
has on its face at the top information that it was entered of record on June 6, 1988. The
second “case number 21,478” judgment has, in the same location, information that it was
entered of record on November 29, 1988. We will refer to these two “case number 21,478”
judgments as the “June” judgment and the “November” judgment. Most of the information
on the two judgments is identical. However, in the June judgment, in the section designated
for information regarding consecutive or concurrent sentencing, no other conviction is
mentioned and “n/a” is typed in the blank space. In the November judgment, the following
is set forth in the section regarding consecutive or concurrent sentencing: “6. This sentence
shall be served [ ] [consecutively to] [sic] sentence(s) in the following [cases] [sic] and/or
[counts] [sic] 22,532 (15 yrs) (Armed [sic] Robbery) Sullivan Co. Crim. Ct.”

       Both judgments regarding case number 21,478 show that Petitioner pled guilty to the
offense on March 23, 1988, and the sentence imposed was seven years. The June judgment
gave Petitioner 100 days of jail credit without specificity of the dates, but the November
judgment gave only 49 days of jail credit, with the specific dates listed. Each judgment
showed that Petitioner was “sentenced for an especially aggravated offense.” The June
judgment was silent as to the basis of this classification, but the November judgment
explained this designation by stating “(On Probation out of U.S. District Court, Roanoke,
VA).”

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       There is only one judgment in the appellate record regarding case number 22,532.
That judgment shows that Petitioner was indicted for the offense of armed robbery. The
judgment specifically states Petitioner pled guilty to simple robbery on May 31, 1988. The
judgment was entered of record on November 29, 1988. The imposed sentence of 15 years,
for an especially aggravated offense, was ordered to be served consecutively to “21,478 (7
years).”

       From the record, we conclude that an amended judgment in case number 21,478 was
entered on November 29, 1988, the same date that the judgment in case number 22,532 was
entered. The judgments on their face reflect properly imposed consecutive sentences. We
also note that the appellate record contains an order of the Criminal Court of Sullivan County
which pertains to both case number 21,478 and case number 22,532. The order sets forth that
Petitioner could serve his sentences in the Johnson County Jail. Pertinent to the case sub
judice this order, entered July 14, 1989, reflects that the sentences had been ordered to be
served consecutively.

       As noted above, in Calhoun I, this Court reversed the trial court and granted habeas
corpus relief to the Petitioner on his Carter County conviction. The State filed a lengthy
petition to rehear, which was denied. Some of the language of this Court’s order denying the
State’s petition to rehear forms the basis of Petitioner’s argument that he is entitled to habeas
corpus relief in the case sub judice. The order states as follows:

                                            ORDER

               The state has petitioned this court for a rehearing. It claims this
        court erred in concluding that the petitioner’s Carter County Criminal Court
        sentence was illegal and therefore void. The state claims this court erred
        because (1) the petitioner is under a valid sentence from Sullivan County
        until 2010 and is not entitled to habeas corpus relief on his Carter County
        Criminal Court sentence until then, and (2) McClaney v. Bell, 59 S.W.3d
        90 (Tenn. 2001) (authorizing a withdrawal of a guilty plea where the
        bargained for sentence is subsequently declared illegal), is bad law and
        “should be overruled.”

               Initially, we note that in the opinion filed in this case, we stated that
        “based upon Thompson and Arnold, the language in the petitioner’s March
        23, 1988 judgment of conviction ordering the sentence in that case to be
        served consecutively to the May 31, 1988 sentence was surplusage” and
        “without efficacy.” (Emphasis added). Therefore, the defendant’s Sullivan
        County sentences expired in 2003, and pursuant to the Carter County

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        Criminal Court judgment, he is under valid restraint of freedom until 2009
        based upon the six-year probated portion of his ten-year sentence, which we
        held illegal.

                Concerning this court’s remedy pursuant to McClaney, the state is
        asking this court to overrule McClaney, which is beyond this court’s
        authority. In consideration of the foregoing, it is hereby ORDERED that
        the state’s petition to rehear is DENIED.

       In the habeas corpus court, and on appeal, Petitioner asserts that his Sullivan County
convictions in case numbers 21,478 and 22,532 expired in 2003, and that he has been
unlawfully detained by the “Tennessee Probation and Parole Board” in 2008 for a violation
of parole in those cases, based upon new convictions from offenses charged in Virginia in
December 2006. Petitioner asserts that the State did not seek review from this Court’s order
on the petition to rehear in Calhoun I which stated that Petitioner’s sentences in Sullivan
County cases number 21,478 and 22,532 had expired in 2003. Thus, Petitioner argues, this
court’s order is final and is binding on the issue of whether the sentences have expired.

       In the habeas corpus court the State filed a motion to dismiss based upon the assertion
that Petitioner’s sentences had not yet expired.

       In granting relief to Petitioner, the habeas corpus court stated in pertinent part:

                The Petitioner has demonstrated by way of a judicial proceeding by
        a preponderance of the evidence that he is being unlawfully restrained of
        liberty on his sentences imposed by the Criminal Court of Sullivan County
        in case numbers 21478 and 22532. In light of the opinion of the Court of
        Criminal Appeals on the petitioner’s prior habeas corpus petition, as well
        as that court’s order denying a petition to rehear, the court finds that these
        two sentences ran concurrently with each other and have now expired.

                                         ANALYSIS

       Petitioner, through counsel, brought the instant proceeding before the habeas corpus
court pursuant to Tennessee Code Annotated section 29-21-104 which states as follows:

                29-21-104. Issuance of writ without application. – Whenever any
        court or judge, authorized to grant this writ, has evidence, from a judicial
        proceedings, that any person within the jurisdiction of such court or officer
        is illegally imprisoned or restrained of liberty, it is the duty of such court or

                                               -4-
        judge to issue, or cause to be issued, the writ as aforementioned, although
        no application be made therefor.

Tenn. Code Ann. § 29-21-104.

       Petitioner argues that this Court’s order on the petition to rehear in Calhoun I
determined conclusively that the sentences from his Sullivan County convictions in case
numbers 21,478 and 22,532 were to be served concurrently and that the sentences expired
in 2003. Petitioner argues this despite the fact that in his appellate brief he acknowledges
that the judgment in Sullivan County case number 22,532 (15-year sentence for simple
robbery) reflects that sentence was to be served consecutively to Sullivan County case
number 21,478.

       The issues in Calhoun I, as to the Sullivan County convictions, were whether the
judgment in case number 21,478 was void because it was ordered to be served consecutively
to a sentence not yet imposed, and whether the judgments in that case and in case number
22,532 were void because the State failed to file a notice to seek enhanced punishment.
Calhoun I at *1.

         The State did not initially address in its arguments on appeal that Petitioner was not
entitled to relief on the Carter County conviction because he had not yet completed service
on the Sullivan County convictions, one of the issues brought up in the petition to rehear.
Instead, the State argued as to the Sullivan County convictions that the specified language
in the judgment of case number 21,478, regarding consecutive sentencing, was surplusage
and did not render the judgment void. Furthermore, the State argued that a claim that failure
to file a notice of intent to seek enhanced punishment was not a cognizable claim for habeas
corpus relief.

     This Court agreed with the State’s argument and made its ruling accordingly.
Calhoun I at *3.

        The Calhoun I Court denied the State’s petition to rehear. The language in that order
stating that the sentences in the Sullivan County case numbers 21,478 and 22,532 were
ordered to be served concurrently, was erroneous as shown by the record in this case. We
do not fault the habeas corpus trial court in this case for ruling in a manner consistent with
what a panel of this Court previously concluded in the order denying a rehearing in Calhoun
I. In fact, a lower court is generally obligated to follow the holdings of a higher court, even
if erroneous. See State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995). However, this Court can
recognize but decline to follow rulings that were clearly erroneous based upon the appellate
record. See State v. Jefferson, 31 S.W.3d 558, 560 (Tenn. 2000) (citing Memphis Publg. Co.

                                              -5-
v. Tennessee Petroleum Underground Storage Tank Bd., 975 S.W.2d 303 (Tenn. 1998). To
the extent that the Calhoun I opinion and order denying rehearing suggest that the sentences
in cases 21,478 and 22,532 were imposed concurrently, they are clearly erroneous based upon
the appellate record in the present case. This court is not bound by Calhoun I. The Petitioner
is not entitled to habeas corpus relief on his claim that Calhoun I conclusively determined
that the sentences in cases 21,478 and 22,532 were to be served concurrently. Accordingly,
we must reverse the habeas corpus trial court’s order granting relief to Petitioner in this case.

                                       CONCLUSION

       The judgment of the habeas corpus trial court, which granted habeas corpus relief to
Petitioner in Sullivan County case numbers 21,478 and 22,532 is reversed.


                                                     _________________________________
                                                     THOMAS T. WOODALL, JUDGE




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