        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs May 15, 2012

     GARY R. BUNTON v. DAVID SEXTON, WARDEN AND STATE OF
                          TENNESSEE

             Direct Appeal from the Criminal Court for Johnson County
                        No. 5901     Lynn W. Brown, Judge


                 No. E2011-02089-CCA-R3-HC - Filed August 23, 2012


The Petitioner, Gary R. Bunton, appeals the Johnson County Criminal Court’s dismissal of
his petition for a writ of habeas corpus, arguing that he is being illegally restrained because
his probation and community corrections sentences expired before revocation warrants were
filed. Upon review of the record and the parties’ briefs, we conclude that the habeas corpus
court properly dismissed the petition.

Tenn. R. App. P. 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 J OSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J., joined.

Gary R. Bunton, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; and Anthony Wade Clark, District Attorney General, for the appellee, State of
Tennessee.

                                         OPINION

                                  I. Factual Background

       On October 5, 2004, the Petitioner pled guilty in case number 15972 to unlawful
possession of a weapon by a convicted felon, a Class E felony, and received a three-year
sentence to be served on probation and consecutive to prior sentences. On November 20,
2006, the Petitioner pled guilty in case number 18465 to failure to appear, a Class E felony;
in case number 4653 to aggravated assault, a Class C felony; in case number 4590 to theft
of property valued more than $500 but less than $1,000, a Class E felony; and in case number
4954 to failure to appear, a Class E felony. The Petitioner received two-year sentences for
each of the Class E felony convictions and a six-year sentence for the Class C felony
conviction. All of the sentences were to be served in a community-based alternative to
confinement, specifically house arrest, and were to be served consecutively to each other and
the three-year sentence in case number 15972 for a total effective sentence of fifteen years.

        On August 6, 2009, the Petitioner’s community corrections supervisor alleged that the
Petitioner violated the terms of his community corrections sentences. On August 10, 2009,
the trial court filed revocation warrants, and on January 5, 2010, the trial court revoked the
appellant’s sentences in all five cases and ordered him to serve the effective fifteen-year
sentence in confinement. Subsequently, the Petitioner filed a petition for a writ of habeas
corpus, alleging that he was being illegally restrained because his three-year probation
sentence in case number 15972 and his two-year community corrections sentence in case
number 18465 expired before the revocation warrants were filed. On September 12, 2011,
the habeas corpus court filed an order dismissing the petition, concluding that “[n]othing in
the petition would support a finding by this court that [Petitioner’s] conviction is void or that
his sentence has expired.” The Petitioner challenges the ruling of the habeas corpus court.

                                         II. Analysis

        Generally, 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).
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).

       A trial court



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               shall . . . possess the power to revoke [a suspended] sentence
               imposed at any time due to the conduct of the defendant or the
               termination or modification of the program to which the
               defendant has been sentenced, and the court may resentence the
               defendant to any appropriate sentencing alternative, including
               incarceration, for any period of time up to the maximum
               sentence provided for the offense committed, less any time
               actually served in any community-based alternative to
               incarceration.

Tenn. Code Ann. § 40-36-106(e)(4). For consecutive sentences, the court may revoke the
suspended sentence only in those cases in which the term of the individual sentence had not
expired before the revocation warrant was filed. State v. Anthony, 109 S.W.3d 377, 381-82
(Tenn. Crim. App. 2001).

       In the instant case, the first term to be served in the Petitioner’s effective fifteen-year
sentence was the three-year probation sentence in case number 15972. Granted, the
Petitioner was sentenced in that case almost five years before the revocation warrants were
filed. However, according to the judgment for case number 15972, the sentence was to be
served consecutively to “Johnson Co Case 3940 and any prior convictions.” Nothing in the
appellate record reveals when the Petitioner began serving his three-year probation sentence
in case number 15972 or when the sentence expired. Therefore, the Petitioner has failed to
show that any part of his effective fifteen-year sentence had expired when the revocation
warrants were filed.

                                        III. Conclusion

       Based upon the record and the parties’ briefs, we conclude that the habeas corpus
court properly dismissed the petition.


                                                     _________________________________
                                                     NORMA McGEE OGLE, JUDGE




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