        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                On Brief October 26, 2010

          JAMES L. JOHNSON v. HOWARD CARLTON, WARDEN

                   Appeal from the Criminal Court for Johnson County
                             No. 5630 Lynn Brown, Judge



                 No. E2010-01309-CCA-R3-HC - Filed November 24, 2010


Petitioner, James Lee Johnson, appeals from the dismissal of a petition for writ of habeas
corpus in which he argued that the trial court erred by failing to merge his three convictions
and that the sole remaining conviction had expired. After a review, we affirm the dismissal
of the petition for writ of habeas corpus because Petitioner has failed to establish that his
judgments were void or that his sentences have expired. Accordingly, the judgment of the
trial court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS and
N ORMA M CG EE O GLE, JJ., joined.

James L. Johnson, Pro Se., Mountain City, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Joe Crumley, District Attorney General, for the appellee, State of Tennessee.




                                         OPINION

                                    Factual Background

        On November 17, 2005, Petitioner pled guilty to one count of attempted sexual
battery, one count of attempted aggravated sexual battery, and one count of rape. As a result
of the plea agreement, Petitioner was sentenced to time served on the one count of attempted
sexual battery. On the remaining count of attempted aggravated sexual battery, Petitioner
was sentenced to six years as a Range I, standard offender. Petitioner was sentenced to ten
years at 100% for the rape conviction, to be served concurrently with the six-year sentence,
but consecutively to the sentence for attempted sexual battery, for a total effective sentence
of ten years, eleven months and twenty-nine days. The sentences were suspended after the
service of ten months.

        On August 30, 2007, Petitioner’s probation was revoked, and Petitioner was ordered
to serve his sentences in confinement. On February 3, 2010, Petitioner filed a motion
seeking post-conviction relief. In the motion, Petitioner argued that he was sentenced
illegally. The petition for post-conviction relief was dismissed by the trial court as time-
barred.

       On March 22, 2010, Petitioner filed a petition for writ of habeas corpus. In the
petition, Petitioner alleged that the trial court erred by failing to merge the three convictions
and that the sentence on the one remaining conviction had expired. Petitioner argued that the
convictions should have been merged because they were committed within a twenty-four
hour period and/or that the convictions should have been merged based on Tennessee Rules
of Criminal Procedure 8(b) and 14(b)(1). Finally, Petitioner argued that State v. Denton, 149
S.W.3d 1 (Tenn. 2004), requires that he receive habeas corpus relief.

       The State filed a motion to dismiss the petition. The trial court issued an order
dismissing the petition for habeas corpus, finding that “nothing in the petition would support
a finding . . . that petitioners’ [sic] conviction is void or that his sentence has expired.”

       Petitioner filed a timely notice of appeal.

                                            Analysis

        On appeal, Petitioner claims that he was sentenced illegally. Specifically, he claims
that his sentences should have been merged because they: (1) were committed in a twenty-
four hour period of time; (2) violated Tennessee Rules of Criminal Procedure 8(b) and
14(b)(1); and (3) were given in violation of State v. Denton, 149 S.W.3d 1 (Tenn. 2004). The
State disagrees, concluding that Petitioner has not satisfied the burden necessary to show that
he is entitled to habeas corpus relief.

        The determination of whether to grant habeas corpus relief is a question of law. See
Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004). As such, we will review the habeas
corpus 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).

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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). A writ of
habeas corpus is available only when it appears on the face of the judgment or the record that
the convicting court was without jurisdiction to convict or sentence the defendant or that the
defendant is still imprisoned despite the expiration of his sentence. Archer v. State, 851
S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In other
words, habeas corpus relief may be sought only when the judgment is void, not merely
voidable. See 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, 955 S.W.2d at 83).

        However, if after a review of the habeas petitioner’s filings the habeas corpus court
determines that the petitioner would not be entitled to relief, then the petition may be
summarily dismissed. T.C.A. § 29-21-109; State ex rel. Byrd v. Bomar, 381 S.W.2d 280
(Tenn. 1964). Further, a habeas corpus court may summarily dismiss a petition for writ of
habeas corpus without the appointment of a lawyer and without an evidentiary hearing if
there is nothing on the face of the judgment to indicate that the convictions addressed therein
are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

       The procedural requirements for habeas corpus relief are mandatory and must be
scrupulously followed. Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007); Hickman, 153
S.W.3d at 19-20; Archer, 851 S.W.2d at 165. A habeas corpus court “properly may choose
to summarily dismiss a petition for failing to comply with the statutory procedural
requirements.” Summers, 212 S.W.3d at 260; see also Hickman, 153 S.W.3d at 21.

       The trial court herein properly dismissed the petition for habeas corpus relief. First,
Petitioner argues herein that his convictions should have been merged because they were
committed within a twenty-four hour period of time. Petitioner cites Tennessee Code
Annotated section 40-35-106 to support his argument. This statute provides for the definition
of a “multiple offender” for sentencing purposes. Petitioner is not challenging his sentencing
range; he is challenging the trial court’s failure to merge his convictions. This issue is
without merit.

       Next, Petitioner argues that his convictions should have been merged based on
Tennessee Rules of Criminal Procedure 8(b) and 14(b)(1). Both of these provisions address
joining offenses for a single prosecution rather than merging convictions. They do not entitle
Petitioner to habeas corpus relief.



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        Next, Petitioner cites State v. Denton, 149 S.W.3d 1 (Tenn. 2004), to support his
merger argument. On review, we are convinced that Petitioner meant to cite to State v.
Denton, 938 S.W.2d 373 (Tenn. 1996). In Denton, the court examined multiple convictions
to determine whether they offended double jeopardy. The court utilized a four part balancing
test as set forth in Blockburger v. United States, 284 U.S. 299 (1932). The court examined
the following in order to determine if the same act or transaction constitutes a violation of
two distinct statutes: (1) whether each provision required proof of an additional fact which
the other does not; (2) whether the state used different evidence to prove the individual
offenses; (3) whether the offenses had multiple victims or discrete acts; and (4) the purposes
of the respective criminal statutes. Denton, 938 S.W.2d at 379-81. Petitioner has not argued
that his multiple convictions did not constitute different offenses. Instead, he argues that
because they all occurred within twenty-four hours, he should not receive multiple
punishments. This is not what the Blockburger test is designed to protect against. Moreover,
a challenge to a conviction based on double jeopardy grounds merely renders a conviction
voidable. Steven Lamont Anderson v. State, No. W2006-00866-CCA-R3-HC, 2009 WL
536993, at *4 (Tenn. Crim. App., at Jackson, Mar. 2, 2009); Ralph Phillip Claypole v. State,
No. M1999-02591-CCA-R3-PC, 2001 WL 523367, at *2 (Tenn. Crim. App., at Nashville,
May 16, 2001).

       Finally, Petitioner’s sentence has not expired. Petitioner received a ten-year sentence
for rape in the year 2006.

       Petitioner has failed to show that he is entitled to habeas corpus relief.

                                         Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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