                                                                                         03/24/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 7, 2017

                 STATE OF TENNESSEE v. LARRY PREWITT

                 Appeal from the Criminal Court for Shelby County
                Nos. 09-04193, 09-04191 J. Robert Carter, Jr., Judge
                      ___________________________________

                           No. W2016-01516-CCA-R3-CD
                       ___________________________________


In September 2009, Larry Prewitt (“the Petitioner”) pled guilty to two counts of
aggravated burglary and was sentenced to three years in the workhouse with release
eligibility after service of thirty percent of the sentence. On May 18, 2016, the Petitioner
filed a “Motion to Challenge the Criminal Court Jurisdiction,” arguing that the judgments
were void, his guilty plea was unknowing and involuntary, and the indictments were
fatally defective, which the trial court denied. After a thorough review of the record and
applicable case law, we affirm the judgment of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JAMES CURWOOD WITT, JR., J., joined.

Larry Prewitt, Mason, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Amy Weirich, District Attorney General; and Stephanie Johnson,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                         I. Factual and Procedural Background

                              Guilty Plea Submission Hearing

       The Petitioner was indicted for aggravated burglary in case number 09-04193 and
09-04194. On September 15, 2009, the Petitioner entered a guilty plea to aggravated
burglary in case number 09-04193 and entered a best interest plea to aggravated burglary
in case number 09-04194. At the beginning of the plea submission hearing, the
prosecutor stated that in case number 09-04193, the Petitioner was “pleading guilty as
indicted to a class ‘C’ felony, aggravated burglary[,]” but in case number 09-04194, the
prosecutor misstated that the Petitioner was pleading guilty to “a class ‘E’ felony,
aggravated burglary.” During its recitation of facts in support of the guilty plea, the State
alleged that regarding case number 09-04193, on January 22, 2009, the Petitioner entered
the residence of Andrew Pickens and stole property valued at $2,000. The State alleged
that regarding case number 09-04194, on January 12, 2009, the Petitioner entered the
residence of Nathan Perlsen and stole property valued at $1,100. The State further
alleged that, during an interview with a police officer, the Petitioner waived his Miranda
rights and signed a typed statement admitting to participating in the burglary of Mr.
Perlsen’s residence. The Petitioner stipulated to the State’s factual basis of his
convictions.

        The Petitioner agreed that he wanted to enter a guilty plea, that he had discussed
the plea petition with his counsel and had signed the petition, that he understood that he
was waiving his right to a jury trial and appeal, and that if he proceeded to trial he had the
right to confront the State’s witnesses, present his own witnesses, and to testify or not
testify. The Petitioner agreed that his convictions could be used to enhance any future
convictions. The Petitioner stated that he was freely and voluntarily pleading guilty. The
trial court found the Petitioner guilty and accepted his pleas. The Petitioner was
sentenced to three years in the workhouse with release eligibility after service of thirty
percent of the sentence.

                              Prior Post-Conviction Motions

       On February 27, 2015, the Petitioner filed a “Motion for Writ of Coram Nobis,”
alleging that “(1) his guilty pleas violated Rule 11 of the Federal Rules of Criminal
Procedure; (2) his guilty pleas were entered unknowingly and unintelligently because he
received ineffective assistance of counsel; and (3) there was insufficient evidence to
support his convictions.” Larry Prewitt v. State, No. W2015-00839-CCA-R3-ECN, 2015
WL 8555268, at * 1 (Tenn. Crim. App. Dec. 11, 2015), perm. app. denied (Tenn. Mar.
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23, 2016). The trial court addressed the motion as a corum nobis petition and held that
the petition did not state a colorable claim for relief. Id. The trial court further
determined that, if viewed as a petition for habeas corpus or post-conviction relief, both
forms of relief were unavailable because the sentences had expired and the petition was
not filed within the one-year statute of limitations for post-conviction relief. Id. On
appeal, this court concluded that “the trial court applied the proper legal standard for
coram nobis relief and correctly concluded that the Petitioner is not entitled to coram
nobis relief because he did not make a colorable argument for such relief based on newly
discovered evidence.” Id. at *3. This court further held that “[t]he trial court correctly
concluded that habeas corpus relief is not available to [the] Petitioner because he is no
longer restrained of his liberty by those convictions as required by Tennessee Code
Annotated section 29-21-101(a)” and that “the nature of Petitioner’s primary claim based
on ineffective assistance of counsel is not that his convictions are void, but merely that
they are voidable, which does not warrant habeas corpus relief.” Id. at *4. Lastly, this
court held that the trial court correctly denied post-conviction relief because the
Petitioner’s filing was not within the statute of limitations. Id. at *5.

       It additionally appears that the Petitioner previously filed a Rule 36.1 motion,
alleging that his sentences were illegal because, during his guilty plea submission
hearing, the prosecutor stated that the conviction for aggravated burglary in case number
09-04191 was a Class E felony, but the judgment form reflects a conviction for a Class C
felony. State v. Larry Prewitt, No. W2016-00692-CCA-MR3-CD, slip op. at 1 (Tenn.
Crim. App. May 5, 2016), no perm. app. filed. The trial court denied the Petitioner’s
Rule 36.1 motion on the grounds that the judgment sheets correctly reflected the
aggravated burglary convictions and because the Petitioner’s sentences had expired. Id.
The Petitioner filed a motion asking this court to accept his late-filed appeal, which this
court denied. Id. at 2.

                 “Motion To Challenge The Criminal Court Jurisdiction”

        On May 18, 2016, the Petitioner filed a “Motion To Challenge The Criminal Court
Jurisdiction,” which alleged that the judgments in case numbers 09-04193 and 09-04194
were void because the trial court lacked jurisdiction. The Petitioner also alleged that his
guilty pleas were unknowingly and involuntarily entered because he was improperly
sentenced outside of his sentencing range, and he asserted that the indictments in the
underlying cases were fatally defective because the foreperson of the grand jury was
appointed and not sworn. In its order denying the Petitioner’s motion on June 9, 2016,
the trial court noted that the Petitioner’s sentences had been served and that the Petitioner
previously attempted to collaterally attack his convictions. The trial court concluded that
“[t]here is nothing to indicate facial invalidity of the matters or any lack of jurisdiction in
the court at that time.” The Petitioner timely appealed the trial court’s order.
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                                        II. Analysis

                                      Void Judgments

        On appeal, the Petitioner argues that the Shelby County Criminal Court lacked
jurisdiction to enter its judgments of conviction in his cases because “[t]he District
Attorney’s (DA) Office . . . violated Tennessee law by allowing Grand Jury Foreman
‘Mary Thomas’ to sign and judge cases without being sworn in as a valid juror[,]” and
therefore, the Petitioner’s judgments are void. The Petitioner points to Tennessee Code
Annotated section 40-12-206 for support of his argument that “[t]he law does not provide
for the judicial appointment of a ‘foreman’ into a Tennessee grand jury.” Because lack of
subject matter jurisdiction is a cognizable claim for habeas corpus relief, see State v.
Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000), we will address this issue as a request for
habeas corpus relief.

       Habeas corpus relief may only be granted in limited circumstances. Edwards v.
State, 269 S.W.3d 915, 920 (Tenn. 2008). Unlike petitions for post-conviction relief,
“the purpose of the 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.
Newsome v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968)). “Habeas corpus relief is
available in Tennessee 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.” Archer v. State, 851 S.W.2d 157, 164
(Tenn. 1993) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (1868)). A
petitioner bears the burden of establishing by a preponderance of the evidence that a
judgment is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000). A habeas corpus petition may be summarily dismissed without a hearing
when the petition “fails to demonstrate that the judgment is void.” Hickman v. State, 153
S.W.3d 16, 20 (Tenn. 2004) (citing Tenn. Code Ann. § 29-21-109). “Whether habeas
corpus relief should be granted is a question of law[,]” which we review de novo.
Edwards, 269 S.W.3d at 919.

       Initially, we note that it appears from the record that the Defendant has served his
sentences for the convictions that he now attacks; therefore, habeas corpus relief is no
longer available. See Tenn. Code Ann. § 29-21-101(a); see also Hickman, 153 S.W.3d at
23 (“Use of the challenged judgment to enhance the sentence imposed on a separate
conviction is not a restraint of liberty sufficient to permit a habeas corpus challenge to the
original conviction long after the sentence on the original conviction has expired.”).
Regardless, the Petitioner has not presented any evidence that the Shelby County
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Criminal Court lacked subject matter jurisdiction over his case; therefore, the trial court’s
judgments are not facially void, and he is not entitled to habeas corpus relief. Tennessee
Code Annotated section 40-1-108 states that “[t]he circuit and criminal courts have
original jurisdiction of all criminal matters not exclusively conferred by law on some
other tribunal.” Tenn. Code Ann. § 40-1-108. The Petitioner has not presented any
evidence or case law to suggest that his cases were “criminal matters” that had been
“exclusively conferred by law on some other tribunal”; therefore, the Shelby County
Criminal Court had subject matter jurisdiction over his cases. Further, the statute that the
Petitioner cites in support of his argument involves the impaneling of an investigative
grand jury; this type of grand jury is only empaneled to investigate charges of certain
criminal offenses, of which the Petitioner was neither indicted nor convicted. There is no
evidence in the trial record that the grand jury that indicted the Petitioner was improperly
impaneled. The Petitioner is not entitled to relief.

                           Unknowing and Involuntary Guilty Plea

        The Petitioner asserts that his guilty plea in case number 09-04193 and his best
interest plea in case number 09-04194 were unknowingly and involuntarily entered
because during the guilty plea submission hearing, the State’s attorney stated that “[i]n
indictment 09-04194, [the Petitioner] is pleading guilty to a class ‘E’ felony, aggravated
burglary.”1 Under the Post-Conviction Procedure Act, a petitioner may collaterally
attack a conviction on the grounds that the guilty plea underlying the conviction was
entered unknowingly or involuntarily. See Tenn. Code Ann. § 40-30-103. However, a
claim for post-conviction relief must be filed, if no direct appeal is filed in the case,
“within one (1) year of the date on which the judgment became final, or consideration of
the petition shall be barred.” Tenn. Code Ann. § 40-30-102(a). This statute of
limitations cannot be tolled unless: (1) “[t]he claim in the petition is based upon a final
ruling of an appellate court establishing a constitutional right that was not recognized as
existing at the time of trial, if retrospective application of that right is required[;] (2)
“[t]he claim in the petition is based upon new scientific evidence establishing that the
petitioner is actually innocent of the offense or offenses for which the petitioner was
convicted[;]” or (3) “[t]he claim asserted in the petition seeks relief from a sentence that
was enhanced because of a previous conviction and the conviction in the case in which
the claim is asserted was not a guilty plea with an agreed sentence, and the previous
conviction has subsequently been held to be invalid[.]” Tenn. Code Ann. § 40-30-102(b).




       1
         It appears that the prosecutor mistakenly referred to the aggravated burglary charge in case
number 09-04194 as a Class E felony as, only moments earlier, the prosecutor correctly referred to
aggravated burglary as a Class C felony. See Tenn. Code Ann. § 39-14-403(b).
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        The judgments in this case were entered on September 15, 2009, and the
judgments became final on October 15, 2009. The Petitioner was required to file his
petition for post-conviction relief within one year of October 15, 2009, but failed to do
so. Further, the Petitioner has not alleged any claims based upon an appellate court’s
final ruling establishing a constitutional right, upon new scientific evidence establishing
his innocence, or that his sentence was enhanced based on a previous jury trial conviction
that has since been held invalid. Therefore, the Petitioner is not entitled to tolling of the
statute of limitations, and he is not entitled to post-conviction relief.

                               Fatally Defective Indictments

       The Petitioner additionally argues that the indictments in case numbers 09-04193
and 09-04194 were fatally defective because the indictments were signed by the grand
jury foreperson, whom he alleges was improperly appointed rather than sworn into the
position.

       In James P. Stout v. State, No. M2009-01171-CCA-R3-HC, 2010 WL 1333168, at
*4 (Tenn. Crim. App. Apr. 5, 2010), perm. app. denied (Tenn. Aug. 26, 2010), the
petitioner argued that he was illegally restrained because his underlying indictments were
fatally defective due to “the unconstitutional selection of Tennessee’s grand jury
foreperson.” This court held that the trial court properly concluded that the petitioner’s
claim was not cognizable in a habeas corpus proceeding. Id. Additionally, this court
concluded that there was “nothing in the record to indicate that the trial court was without
jurisdiction to sentence the Petitioner[.]” Id.

       Similarly, we conclude that the trial court properly denied the Petitioner habeas
corpus relief on this ground; we can discern no error from the record regarding the
Petitioner’s underlying indictments or in the impaneling of the grand jury. Additionally,
it appears from the record that the Petitioner has served his sentences for the convictions
that he now attacks; therefore, habeas corpus relief is no longer available. See Tenn.
Code Ann. § 29-21-101(a); see also Hickman, 153 S.W. 3d at 23.

                                      III. Conclusion

       For the aforementioned reasons, the judgment of the criminal court is affirmed.


                                              ____________________________________
                                              ROBERT L. HOLLOWAY JR., JUDGE



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