         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

                ANDRE L. MAYFIELD v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Johnson County
                              No. 4687 Robert E. Cupp, Judge


                   No. E2005-02154-CCA-R3-HC - Filed November 15, 2006


The petitioner, Andre L. Mayfield, appeals the trial court's order denying his petition for writ of
habeas corpus. The state has filed a motion requesting that this court affirm the trial court's judgment
pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition fails to establish a
cognizable claim for habeas corpus relief. Accordingly, the state's motion is granted and the
judgment of the trial court is affirmed.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
               Pursuant to Rule 20, Rules of the Court of Criminal Appeals

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and NORMA MCGEE OGLE , J., joined.

Andre Lamont Mayfield, Mountain City, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.

                                   MEMORANDUM OPINION

        In May 1993, the Davidson County Grand Jury returned an eight-count indictment charging
the petitioner, Andre Lamont Mayfield, with three counts of aggravated rape, three counts of
aggravated kidnapping, and two counts of aggravated robbery. Upon these charges, the petitioner
pleaded guilty to three counts of aggravated rape and one count of aggravated robbery and was
sentenced as a Range I, standard offender to twenty years for each count of aggravated rape and ten
years for aggravated robbery, all concurrent. In January 1999, the trial court was informed that the
petitioner's sentence was illegal, as he was required to serve one hundred percent of his imposed
sentence as a multiple rapist pursuant to Tennessee Code Annotated section 39-13-523, rather than
the imposed release eligibility of thirty percent. The petitioner was permitted to withdraw his guilty
plea and the trial court granted a motion to sever one count each of aggravated rape, aggravated
kidnapping, and aggravated robbery. See Andre Lamont Mayfield v. State, No. M2004-01408-CCA-
R3-HC (Tenn. Crim. App. Jul. 18, 2005), app. denied (Tenn. Feb. 6, 2006). In June 1999, the
petitioner was tried on the remaining charges and convicted of aggravated robbery, aggravated rape,
rape, and two counts of aggravated kidnapping. The trial court sentenced the defendant to an
effective sentence of fifty years as a multiple offender. On direct appeal, this court affirmed the
judgment of the trial court as modified to indicate that the petitioner was sentenced as a Range II,
multiple rapist for the rape conviction. See State v. Andre L. Mayfield, No. M1999-02425-CCA-
R3-CD (Tenn. Crim. App. June 11, 2001), app. denied (Tenn. Oct. 29, 2001).

        Subsequently, the petitioner challenged his convictions by filing multiple petitions for post-
conviction relief and habeas corpus relief without success. On July 12, 2005, the petitioner filed the
instant petition for writ of habeas corpus, his third. In denying the petition for failure to present a
cognizable claim for relief, the trial court noted that such filings had "become a continuous endeavor
by this petitioner . . . bordering on being frivolous." The instant appeal followed.

        The gist of the petitioner's claim is that his 1999 judgments are void because the judgment
forms for counts 2 through 5 do not reflect that the trial court awarded the petitioner any pre-trial jail
credits on those convictions from the time of his arrest in November 1992 until his August 1999
sentencing following his jury trial convictions as recited above. The petitioner concludes that the
imposition of sentences without the award of proper jail credits renders the sentences illegal and the
resulting judgments void. In denying the petition, the trial court noted that Department of Correction
records provided by the state indicated that the petitioner had in fact been awarded pre-trial jail
credits. The court further found that even if pre-trial jail credits had not been awarded, the dispute
was not properly addressed in a habeas corpus action because, even if proven, the petitioner's claim
would not "render the judgments void, nor would it expire the judgments.”

        The purpose of a habeas corpus petition is to contest void and not merely voidable
judgments. Archer v. State, 851 S.W. 2d 157, 163 (Tenn. 1993) (citing State ex rel. Newsom v.
Henderson, 221 Tenn. 24, 424 S.W. 2d 186, 189 (1968)). A writ of habeas corpus may be granted
only when the petitioner has established lack of jurisdiction for the order of confinement or that he
is otherwise entitled to immediate release because of the expiration of his sentence. See Ussery v.
Avery, 222 Tenn. 50, 432 S.W.2d 656 (1968); State ex rel. Wade v. Norvell, 1 Tenn. Crim. App.
447, 443 S.W.2d 839 (1969). The petitioner's claim that the trial court improperly failed to award
him some seven years of jail credit, even if proven, would render the judgments voidable rather than
void. See, e.g., Luttrell v. State, 644 S.W.2d 408, 409 (Tenn. Crim. App. 1982). Therefore, as the
trial court correctly concluded, they are not cognizable in a habeas corpus proceeding and will not
support issuance of the writ. Moreover, the burden is on the petitioner to establish that the judgment
is void or that the sentence has expired. State ex rel. Kuntz v. Bomar, 214 Tenn. 500, 504, 381 S.W.
2d 290, 291-92 (1964). There is nothing in the record to support the petitioner’s claim of an illegal
sentence and void judgment. As noted, the petitioner was convicted of five offenses on judgments
entered in August 1999. The petitioner has included only four of the judgments, reflecting his
convictions for counts 2 through 5, but has failed to include the judgment on count 1 in the record.
The judgments before us reflect that the sentences imposed on counts 3, 4, and 5 were ordered served
consecutively to the sentences imposed on counts 1 and two, and that counts one and two were
ordered served concurrently to each other. Accordingly, it is evident that no jail credits should have
been awarded for counts 3, 4, or 5. We are in agreement with the state's position that the lack of any


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complaint about a failure to award jail credits as to count 1 and the failure to include count 1 in the
record logically leads to a conclusion that jail credits were likely awarded as to count 1. The lack
of relevant information prevents a determination of whether the same credits should have been
awarded as to the concurrent sentence imposed on count 2.

        Upon due consideration of the pleadings, the record, and the applicable law, the court
concludes that the petitioner has not established that he is entitled to habeas corpus relief based on
his claim of illegal sentences resulting in void judgments. Accordingly, the state’s motion is granted.
The judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court of
Criminal Appeals.


                                                       ___________________________________
                                                        JAMES CURWOOD WITT, JUDGE




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