        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned On Briefs October 1, 2013

             KEITH WILLIAMS v. JOE EASTERLING, WARDEN

                   Appeal from the Circuit Court for Hardeman County
                   No. CC-2012-CR-144 Joseph H. Walker, III, Judge



                 No. W2012-02050-CCA-R3-HC - Filed January 22, 2014


Petitioner, Keith Williams, pled guilty to two counts of aggravated assault, one count of
assault, and one count of domestic assault in case numbers 5338, 5767, 6756, and 6757 in
Haywood County over a period of several years. For each of the convictions, Petitioner was
sentenced and ordered to serve the sentence on probation. Several probation violation reports
were filed against Petitioner. Eventually, probation was revoked. Petitioner sought habeas
corpus relief in Hardeman County on the basis that his sentences had expired. The habeas
corpus court dismissed the petition for relief without a hearing, finding that Petitioner failed
to show that his judgments were void or that his sentence had expired. Petitioner appealed.
After a review of the record, we affirm the judgment of the habeas corpus court because
Petitioner has failed to show that his sentences have expired or that the judgments are void.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
N ORMA M CG EE O GLE, J., joined.

Keith Williams, Pro Se, Whiteville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; and Michael Dunavant, District Attorney General, for the appellee, State of
Tennessee.
                                         OPINION

                                    Factual Background


       According to the technical record, Petitioner pled guilty to aggravated assault in
Haywood County in August of 2004 in case number 5338. As a result, Petitioner was
sentenced to a three-year sentence. The trial court granted pretrial jail credit from May 7,
2004, to August 16, 2004. The trial court granted Petitioner an alternative sentence and
ordered Petitioner to serve the suspended sentence on probation.

        In November of 2006, Appellant pled guilty to aggravated assault in Haywood County
in case number 5767. As a result, he was sentenced to three years to be served consecutively
to the three-year sentence in case number 5338. The judgment reflects pretrial jail credit
from February 26, 2006, to October 11, 2006, and that the “sentence is suspended to time
served.”

       In February of 2012, Petitioner pled guilty to one count of assault in case number 6756
and one count of domestic assault in case number 6757. The judgment forms for these
convictions do not appear in the record on appeal. The technical record includes guilty plea
waiver forms that were submitted by Petitioner with his petition for writ of habeas corpus.
The guilty plea waiver forms indicate that Petitioner was to receive a sentence of eleven
months and twenty-nine days for each of the convictions, to be served concurrently with each
other and concurrently with the sentences in case numbers 5338 and 5767.

        In March of 2006, a probation violation report was entered in case number 5338,
based on Petitioner’s arrest for aggravated assault in case number 5767. According to the
report, Petitioner assaulted a woman with a bat, failed to report the arrest, failed to pay his
court costs, engaged in assaultive behavior, and posed a threat to others. As a result of the
probation violation, the trial court revoked Petitioner’s suspended sentence in case number
5338, suspended the balance of the sentence, and returned Petitioner back to supervised
probation.

        In January of 2007, the State filed a second probation violation report in case number
5338 as a result of Petitioner’s arrest for domestic assault in case number 6757. The record
reflects that this violation of probation was dismissed in April of 2007.




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        The record also contains an order filed in April of 2007 dismissing a violation of
probation warrant in case number 5767. There is no corresponding probation violation
report in the record.

       In July of 2011, the trial court entered an order pertaining to case numbers 6756, 6757,
5767, and 5338. The order states that Petitioner was “released from the Haywood County
Jail and his bonds in 6756 and 6757 are hereby reinstated and his ROR is hereby reinstated
on 5767 and 5338.”

       In February of 2012, the trial court entered an order in which it revoked Petitioner’s
probation in case numbers 5338 and 5767, and ordered the balance of the sentences to be
served concurrently with the sentences in case numbers 6756 and 6757. This decision was
made on the basis of a “petition of the State . . . for failure to abide by their rules and
regulations.”

        Thereafter, Petitioner filed a petition for writ of habeas corpus in which he argued that
he was being imprisoned on judgments that are both “expired and void.” Petitioner claimed
that the trial court was without jurisdiction to revoke the suspension of the sentences in case
numbers 5338 and 5767 because the sentences had expired prior to the commencement of
the revocation proceedings due to the fact that he received pretrial jail credit which
“effectively reduced his three (3) year[] probationary sentences in case [numbers] 5338 . . .
[and] 5767.” Specifically, Petitioner insists that his sentence in case number 5338 expired
on August 15, 2009, and his sentence in 5767 expired on December 30, 2011, prior to the
commencement of revocation proceedings.

       On August 23, 2012, the habeas corpus court denied the petition for relief. The
habeas corpus court determined that “the revocation order entered in February 2012 orders
the sentences are to be served concurrent with Haywood Circuit 6756 and 6757, which have
not expired.” As a result, the habeas corpus court determined that Petitioner’s sentences had
not expired and habeas relief was not appropriate.

       Petitioner filed a timely notice of appeal. Prior to the filing of his brief, Petitioner
sought leave to supplement the record with the Tennessee Offender Management Information
System Sheet dated January 9, 2013, the Offender Credits Select Sheet dated February 11,
2013, and an order from the Haywood County Circuit Court entered on March 19, 2012.
This Court denied the motion, in part because Petitioner failed to “disclose whether these
documents were entered as exhibits or otherwise considered by the trial court.”




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                                                    Analysis

                       A. Motion for Consideration of Post-Judgment Facts

       In conjunction with his brief, Petitioner filed a “Motion for Consideration of Post-
Judgment Facts” in accordance with Tennessee Rule of Appellate Procedure 14. In the
motion, Petitioner asks this Court to consider: (1) an order entered by the Circuit Court of
Haywood County filed March 19, 2012, “correcting pre-trial jail credit”; (2) a copy of a
policy of the Tennessee Department of Correction; and (3) Petitioner’s Offender Credits
Select printout.1

       Under certain limited circumstances, an appellate court may consider facts pertaining
to a matter which arise after entry of the trial court’s judgment. See State v. Williams, 52
S.W.3d 109, 122 (Tenn. Crim. App. 2001). Tennessee Rule of Appellate Procedure 14(a),
which governs consideration of post-judgment facts, applies only “to those facts, capable of
ready demonstration, affecting the positions of the parties or the subject matter of the action
such as mootness, bankruptcy, divorce, death, other judgments or proceedings, relief from
the judgment requested or granted in the trial court, and other similar matters.” The
comments to Rule 14 also indicate that the facts must be “unrelated to the merits and not
genuinely disputed.” Facts which are not appropriate for consideration under Rule 14
include those which are merely cumulative, could be controverted or contested when
presented to the trial court, and which might lead to differing opinions or conclusions.
Duncan v. Duncan, 672 S.W.2d 765, 767 (Tenn. 1984). Rule 14, therefore, “is not intended
to permit a retrial in the appellate court.” Tenn. R. App. P. 14, Advisory Comm’n Cmts.

       Here, Petitioner asks this Court to consider an order entered by the Haywood County
Circuit Court, detailing pretrial jail credits in case number 5767. These are not post-
judgments facts. They were readily available at the time Petitioner filed the habeas petition
at issue herein. This motion is nothing more than another attempt by Petitioner to
supplement the record with these materials. This Court has already denied such a motion.
The motion for consideration of post-judgment facts is denied.

                            B. Review of Denial of Habeas Corpus Relief

       On appeal, Petitioner challenges the habeas corpus court’s denial of relief.
Specifically, Petitioner alleges that the Haywood County Circuit Court never had jurisdiction
to revoke his probation in case number 5338 because his sentence had already expired. The
State counters that Petitioner failed to demonstrate on the face of the judgments attached to


       1
           These are the same documents with which Petitioner attempted to supplement the record.

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his petition that his conviction was void or his sentence had expired, and, thus, the habeas
corpus court properly denied 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).

        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, 995 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 (Tenn. Crim. App. 1994).

       The procedural requirements for habeas corpus relief are mandatory and must be
scrupulously followed. Hickman, 153 S.W.3d at 19-20; Archer, 851 S.W.2d at 165. For the
benefit of individuals such as Petitioner, our legislature has explicitly laid out the formal
requirements for a petition for a writ of habeas corpus at Tennessee Code Annotated section
29-21-107:


       (a) Application for the writ shall be made by petition, signed either by
       the party for whose benefit it is intended, or some person on the
       petitioner’s behalf, and verified by affidavit.


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       (b) The petition shall state:

       (1) That the person in whose behalf the writ is sought, is illegally
       restrained of liberty, and the person by whom and place where
       restrained, mentioning the name of such person, if known, and, if
       unknown, describing the person with as much particularity as
       practicable;

       (2) The cause or pretense of such restraint according to the best
       information of the applicant, and if it be by virtue of any legal process,
       a copy thereof shall be annexed, or a satisfactory reason given for its
       absence;

       (3) That the legality of the restraint has not already been adjudged upon
       a prior proceeding of the same character, to the best of the applicant’s
       knowledge and belief; and

       (4) That it is the first application for the writ, or, is a previous
       application has been made, a copy of the petition and proceedings
       thereon shall be produced, or satisfactory reasons be given for the
       failure so to do.


“A habeas corpus court may properly choose to dismiss a petition for failing to comply with
the statutory procedural requirements; however, dismissal is not required.” Hickman, 153
S.W.3d at 21.

        The habeas corpus court dismissed the petition herein based on the fact that Petitioner
failed to show that his sentences in case numbers 5338 and 5767 had expired prior to the
revocation of his probation on February 14, 2012. Petitioner alleged that his three-year
sentence in case number 5338, which commenced on August 16, 2004, expired on August
15, 2009, after the application of pretrial jail credit. Petitioner also alleged that his sentence
in case number 5767 expired on December 30, 2011, after the application of pretrial jail
credit.

       When a probation revocation warrant is issued within the term of the probation, it tolls
the limitation of time in which the court may act to revoke probation. State v. Shaffer, 45
S.W.3d 553, 555 (Tenn. 2001); State v. Clark, 970 S.W.2d 516, 518 (Tenn. Crim. App.
1998); see also T.C.A. § 40-35-310. Petitioner did not provide adequate documentation to


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show that he is entitled to credit for time spent in confinement or calculate the total amount
of time to be credited against his pending sentences. The judgment in case number 5338
shows pretrial jail credit from May 7, 2004, to August 16, 2004. The guilty plea waiver form
for case number 5338 shows 102 days credit. The judgment in case number 5767 shows
pretrial jail credit for February 26, 2006, to October 11, 2006, and the corresponding guilty
plea waiver form indicates that there were 240 days of credit. Additionally, Petitioner
submitted TOMIS reports to support his claim that the sentences were expired prior to the
commencement of the revocation proceedings. This Court has held that TOMIS reports are
not to be considered a part of the record of the underlying proceedings for purposes of habeas
corpus claims. Tucker v. Morrow, 335 S.W.3d 116, 124 (Tenn. Crim. App. 2009).
Moreover, Petitioner did not include at least two revocation warrants, one that corresponds
with the order in which the convicting court released Petitioner on his own recognizance in
case numbers 5338 and 5767, and one that formed the basis for the revocation order of
February 14, 2012. The record also fails to include judgment forms for cases 6756 and 6757.
The failure to include these documents alone is enough for the habeas corpus court to deny
relief. See William Henry Preston v. Jewel Steel, Warden No. M2013-00276-CCA-R3-HC,
2013 WL 4792482, at *2 (Tenn. Crim. App., at Nashville, Sept. 9, 2013) (denying relief to
petitioner who failed to include judgments necessary to prove his sentence was void).
Petitioner has not shown by a preponderance of the evidence that his sentences are expired
in case numbers 5338 or 5767 or that the judgments are void. Further, it is unclear from the
record before this Court when the sentences in case numbers 6756 and 6757 expire.
Petitioner is not entitled to relief. Consequently, the judgment of the habeas corpus court is
affirmed.

                                         Conclusion

       For the foregoing reasons, the judgment of the habeas corpus court is affirmed.


                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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