        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 7, 2012

             CHARLES BORUM v. HENRY STEWART, WARDEN

                    Appeal from the Circuit Court for Lake County
                     No. 12-CR-9716     R. Lee Moore, Jr., Judge


              No. W2012-00863-CCA-R3-HC - Filed September 6, 2012


In 1986, petitioner, Charles Borum, pled guilty to two offenses, a Dickson County charge of
aggravated kidnapping and a Davidson County charge of aggravated rape, and received forty-
year sentences on each offense. Davidson County agreed to run the aggravated rape
conviction concurrently with the Dickson County aggravated kidnapping conviction.
Petitioner filed the instant petition for a writ of habeas corpus, alleging that the Davidson
County conviction is illegal, and thus void, because it did not award him pretrial jail credit
as required by law. The habeas corpus court summarily dismissed the petition. Following
our review of the record, we affirm the judgment of the habeas corpus court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
N ORMA M CG EE O GLE, JJ., joined.

Charles Borum, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Rachel E. Willis, Senior Counsel,
for the appellee, State of Tennessee.
                                          OPINION

                                   A. Procedural History1

        In 1985, petitioner was charged with aggravated kidnapping in Dickson County and
aggravated rape in Davidson County. A Tennessee Offender Management Information
System (“TOMIS”) report indicates that the offenses occurred on the same date, November
28, 1985. Petitioner pled guilty to the Dickson County offense on February 21, 1986, and
subsequently pled guilty to the Davidson County offense on March 20, 1986. He received
forty-year sentences for each conviction. The Dickson County judgment indicates that
petitioner received pretrial jail credit of eighty-four days, which equals the number of days
between his arrest and his guilty plea. Because the Davidson County offense was concluded
later, Davidson County agreed to run petitioner’s forty-year sentence concurrently with the
Dickson County sentence. However, Davidson County court documents do not reflect the
110 days of pretrial jail credit to which petitioner claims he is entitled. Petitioner’s Dickson
County sentence is set to expire on October 13, 2012, while the alleged failure to award
pretrial jail credit extends the expiration of petitioner’s Davidson County sentence to
February 1, 2013. For that reason, petitioner alleges that the conviction and sentence arising
out of Davidson County are illegal, thus void, and seeks habeas corpus relief thereon.


                           B. Habeas Corpus Standard of Review

       The court’s decision with respect to a petition for a writ of habeas corpus is a question
of law that we review de novo without a presumption of correctness. Hart v. State, 21
S.W.3d 901, 903 (Tenn. 2000). Habeas corpus relief is available to a petitioner only in the
limited circumstances when the judgment is void on its face or the petitioner’s sentence has
expired. Id. “A void judgment is one in which the judgment is facially invalid because the
court did not have the statutory authority to render such judgment.” Id. (quoting Dykes v.
Compton, 978 S.W.2d 528, 529 (Tenn. 1998)). Conversely, a voidable conviction or
sentence appears facially valid and requires the introduction of proof beyond the face of the
record or judgment to determine its deficiency. Taylor v. State, 995 S.W.2d 78, 83 (Tenn.
1999) (citing Dykes, 978 S.W.2d at 529). The proper method for attacking a voidable
judgment is by a petition for post-conviction relief, not habeas corpus. Id. (citing State v.
McClintock, 732 S.W.2d 268, 272 (Tenn. 1987)).




       1
          Much of the recited procedural history is gleaned from Tennessee Offender Management
Information System (“TOMIS”) records filed by petitioner as exhibits to his petition.

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        In habeas corpus proceedings, a petitioner must establish a void judgment or illegal
confinement by a preponderance of the evidence. Passarella v. State, 891 S.W.2d 619, 627
(Tenn. Crim. App. 1994). A habeas corpus court may summarily dismiss a habeas corpus
petition, without the appointment of counsel and without an evidentiary hearing, if the face
of the record or judgment fails to indicate that the convictions or sentences are void. Tenn.
Code Ann. § 29-21-109 (2000); Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005).

                                      C. Petitioner’s Claim

        Petitioner claims that the Davidson County conviction and resulting sentence are
illegal and thus void. He further contends that “to allow pretrial jail credit in only one case
would contravene the concurrent sentence and effectively require [him] to serve a longer
sentence on the second charge.” See generally Grimes v. Parker, No. W2007-00169-CCA-
R3-HC, 2008 WL 141129 (Tenn. Crim. App. Jan. 14, 2008) (citing State v. Henry, 946
S.W.2d 833 (Tenn. Crim. App. 1997)).

        Essential to our de novo review of the habeas corpus court’s conclusion that
petitioner’s “problem should be handled through administrative procedures with the
Tennessee Department of Correction,” we must first address whether the failure to award
pretrial jail credits is a matter properly addressed to the criminal courts of this state and
ultimately this court. “[C]laims ‘relative to the calculation of sentencing credits and parole
dates’ must be reviewed pursuant to the Uniform Administrative Procedures Act rather than
via a petition for writ of habeas corpus.” Tucker v. Morrow, 335 S.W.3d, 116, 122 (Tenn.
Crim. App. 2009) (quoting Tenn. Code Ann.§ 41-21-236(a)(2)(C) (2006)). However, this
statement is inapplicable to a review of the award of or failure to award pretrial jail credits.
Id. In discussing this issue, we have held:

       Unfortunately, this Court has far too often conflated sentence reduction credits,
       which are governed solely by the Department of Correction, with pretrial and
       post-judgment jail credits, which can be awarded only by the trial court. As a
       result, some of the opinions of this court erroneously hold that a petitioner may
       only challenge the trial court’s failure to award pretrial jail credits via the
       Uniform Administrative Procedures Act.

Tucker, 335 S.W.3d at 122. Because the award of pretrial jail credits lies strictly within the
jurisdiction of the trial court rather than the Department of Correction, “any resort to
administrative avenues of relief to address the trial court's failure to award pretrial jail credits
would be futile.” Id. (citing Tenn. Code Ann. § 40-23-101(c) (2006)). Moreover, “the trial
court is required at the time of sentencing to allow a defendant pretrial jail credit. The
[Department of Correction] is powerless to change what the trial court awarded or failed to

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award.” Id. (citing State v. Greg Smith, No. E2003-01092-CCA-R3-CD, 2004 WL 305805,
at *2 (Tenn. Crim. App. Feb. 18, 2004) (Tipton, J., concurring)). Therefore, petitioner’s
claim that he is entitled to relief because the trial court failed to award pretrial jail credit that
he earned pursuant to code section 40-23-101(c) is cognizable in a habeas corpus petition.

       Tennessee Code Annotated section 40-23-101 provides, in pertinent part:

       The trial court shall, at the time the sentence is imposed and the defendant is
       committed to jail, the workhouse or the state penitentiary for imprisonment,
       render the judgment of the court so as to allow the defendant credit on the
       sentence for any period of time for which the defendant was committed and
       held in the city jail or juvenile court detention prior to waiver of juvenile court
       jurisdiction, or county jail or workhouse, pending arraignment and trial. The
       defendant shall also receive credit on the sentence for the time served in the
       jail, workhouse or penitentiary subsequent to any conviction arising out of the
       original offense for which the defendant was tried.

“‘The language [of Code section 40-23-101(c) ] leaves no room for discretion, and when the
word ‘shall’ is used in constitutions or statutes it is ordinarily construed as being mandatory
and not discretionary.’” Tucker, 335 S.W.3d at 123 (quoting Stubbs v. State, 393 S.W.2d 150,
154 (Tenn. 1965)). Thus, pursuant to the statute, a pretrial detainee has “an absolute right
to credit for time in jail” spent in pretrial incarceration arising out of the original offense for
which he was convicted. Id. (citing Trigg v. State, 523 S.W.2d 375, 375 (Tenn. Crim. App.
1975). “It is only when the time spent in jail or prison is due to or, as the statute says, ‘arises
out of’ the offense for which the sentence against which the credit is claimed that such
allowance becomes a matter of right.” Id. (quoting Trigg, 523 S.W.2d at 376). “Thus, the trial
court is statutorily required to credit the defendant with all time spent in confinement pending
arraignment and trial on the offense or offenses that led to the challenged convictions.” Id.

        As support for his petition for habeas corpus relief, petitioner attached the following
documents: (1) a judgment from Davidson County that does not include pretrial jail credit;
(2) a report entitled “Tennessee Sentences” generated by TOMIS showing no pretrial jail
credit for the Davidson County conviction; (3) a copy of the plea agreement he entered in
Davidson County not showing pretrial jail credit; (4) a report entitled “Judgment Order”
generated by TOMIS showing eighty-four days of pretrial jail credit in the Dickson County
case; (5) a report entitled “Tennessee Sentences” generated by TOMIS showing eighty-four
days of pretrial jail credit in the Dickson County case; and (6) a TOMIS report verifying
offense dates and concurrent sentences for the Davidson and Dickson County offenses.
Through these documents, petitioner avers that he was arrested on November 28, 1985, and
charged with both offenses. He was jailed pending the outcomes of both cases. He contends

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that he entered a guilty plea to aggravated kidnapping in Dickson County on February 21,
1986, and received eighty-four days of pretrial jail credit and that he entered a guilty plea to
aggravated rape in Davidson County on March 20, 1986, and received no pretrial jail credit.

        Notwithstanding the possible viability of petitioner’s claim, he has failed to submit
any documentation to prove by a preponderance of the evidence that he was not awarded the
pretrial jail credit to which he is entitled. Although petitioner appended judgment reports
generated by TOMIS, this court has previously held that TOMIS reports are insufficient to
establish a claim for habeas corpus relief. James G. Watson v. Harold Carlton, Warden, No.
E2011-00288-CCA-R3-HC, 2011 WL 4790953, at *3 (Tenn. Crim. App. Oct. 11, 2011)
(citing Tucker, 335 S.W.3d at 123-24) (noting that TOMIS reports are generated by the
Department of Correction following an inmate’s transfer to prison, therefore, the reports
would not be considered part of the record of the underlying proceedings). Consequently, a
TOMIS report cannot be used to establish a claim for habeas corpus relief. Id.

        Excluding the TOMIS reports, the only pertinent documents provided by petitioner
in support of his claim are forms generated by Davidson County, neither of which bear an
offense date or an arrest date. From these documents, this court cannot determine that his
pretrial incarceration “arises out of” the Davidson County offense for which he was
convicted. Petitioner included the judgment form from Dickson County that properly noted
his pretrial jail credit in that case. While said document would be relevant to consideration
of the legality of the Dickson County conviction, petitioner is attacking the Davidson County
conviction. He has provided this court with no evidence by which to conclude that the
Davidson County conviction is void or that his sentence has expired.

        Petitioner cited Mark Grimes and Henry for the proposition that “[t]o allow pretrial
jail credit in only one case would contravene the concurrent sentence and effectively require
[him] to serve a longer sentence on the second charge.” Mark Grimes, 2008 WL 141129, at
*3 (quoting Henry 946 S.W.2d at 335). Notably, both cases involved multiple convictions
from one jurisdiction that were reversed and remanded on appeal. On re-sentencing, the trial
courts imposed concurrent sentences but failed to award pretrial jail credit on one of the
convictions, rendering one concurrent sentence longer than the other[s]. Because the
convictions arose from the same court, the judgment forms, taken together, clearly indicated
a void or illegal sentence.

        We distinguish this case from Mark Grimes and Henry because petitioner’s
convictions and sentences arose from separate counties. The Dickson County judgment form
is not controlling with regard to the proceedings in Davidson County. Thus, petitioner’s
judgments are not facially void. He is not entitled to habeas corpus relief.



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                                    CONCLUSION

       Following our review of the record and the parties’ briefs, for the reasons stated
herein, we affirm the judgment of the habeas corpus court.


                                                 _________________________________
                                                 ROGER A. PAGE, JUDGE




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