                                                                                            04/21/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs March 21, 2017

           BRUNSWICK L. ROBINSON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Johnson County
                     No. CC-16-CR-144 Stacy L. Street, Judge
                      ___________________________________

                            No. E2016-02429-CCA-R3-HC
                        ___________________________________


The pro se petitioner, Brunswick L. Robinson, appeals the denial of his petition for writ
of habeas corpus by the Johnson County Criminal Court, arguing the trial court erred in
summarily dismissing the petition as his sentence has expired. After our review, we
affirm the summary dismissal of the petition pursuant to Rule 20 of the Rules of the
Court of Criminal Appeals.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and TIMOTHY L. EASTER, JJ., joined.

Brunswick L. Robinson, Mountain City, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General, for the appellee, State of Tennessee.


                              MEMORANDUM OPINION

       In 2005, the petitioner pled guilty to the attempted sale of a Schedule II substance
for which he received a five-year suspended sentence, with one hundred and eighty days
to serve. According to the judgment form entered on February 14, 2006, and made a part
of the appellate record, the petitioner did not receive any pretrial jail credits and the five-
year sentence was to run consecutively to “all current cases” of the petitioner. However,
on November 13, 2014, the Rutherford County Circuit Court revoked the petitioner’s
probation and he was ordered to serve the five-year sentence in confinement. According
to the November 13, 2014, Violation of Probation Order, four hundred and ninety-seven
days of jail credits were to be applied to the five-year sentence.
       On October 28, 2016, the petitioner filed a pro se petition for writ of habeas
corpus alleging the trial court failed to apply the ordered jail credits to his sentence,
rendering it illegal and, furthermore, expired. The petitioner also asserted that the
October 28, 2016, petition was his first application for the writ. The State filed a motion
to dismiss the October 28, 2016, petition arguing the petitioner previously filed an
application for the writ, and, therefore, it failed to satisfy the procedural requirements of
Tennessee Code Annotated section 29-21-107. The State also argued the trial court’s
alleged failure to apply jail credits to the petitioner’s sentence did not present a colorable
claim and the petitioner failed to show that his sentence had expired. The court granted
the State’s motion and summarily dismissed the petition. The petitioner then filed a pro
se appeal arguing the habeas court erred by summarily dismissing the petition “due to his
sentence being expired.”

       It is well-settled that habeas corpus relief is limited in scope and may only be
invoked where the judgment is void or the petitioner’s term of imprisonment has expired.
Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007); State v. Ritchie, 20 S.W.3d 624,
629 (Tenn. 2000); State v. Davenport, 980 S.W.2d 407, 409 (Tenn. Crim. App. 1998). A
void, rather than a voidable, judgment is “one that is facially invalid because the court did
not have the statutory authority to render such judgment.” Summers v. State, 212 S.W.3d
251, 256 (Tenn. 2007) (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)).

       A petitioner must establish a void judgment or illegal confinement by a
preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).
However, when a “habeas corpus petition fails to establish that a judgment is void, a trial
court may dismiss the petition without a hearing.” Summers, 212 S.W.3d at 260 (citing
Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005)). Whether the petitioner is entitled to
habeas corpus relief is a question of law. Id. at 255; Hart v. State, 21 S.W.3d 901, 903
(Tenn. 2000). As such, this Court reviews the habeas court’s findings de novo with no
presumption of correctness. Id.

       The appellate record makes clear the petitioner has failed to satisfy both the
procedural and substantive requirements necessary for habeas corpus relief. The
petitioner filed an initial petition for writ of habeas corpus on October 12, 2016. The
Rutherford County Circuit Court denied the petition for lack of jurisdiction on October
17, 2016.1 The petitioner then filed a second petition for writ of habeas corpus on


        1
        Though the October 12, 2016 petition is not a part of the appellate record, the order dismissing it
makes clear that at the time of the application for the writ, the petitioner was incarcerated in Johnson
County, Tennessee. As such, the Rutherford County Circuit Court lacked jurisdiction pursuant to
Tennessee Code Annotated section 29-21-105, which states: “The application should be made to the court
                                                   -2-
October 28, 2016, in Johnson County wherein he alleged “[t]his is the first application for
the writ.” Pursuant to Tennessee Code Annotated section 29-21-107, “if 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.” Tenn. Code Ann. §
29-21-107(b)(4). Here, the petitioner failed to attach a copy of the October 12, 2016,
petition or the “proceedings thereon” to his second application, and he provided no
explanation for the same. Id. We, therefore, conclude that the habeas court’s summary
dismissal of the petition was proper and the petitioner is not entitled to relief from this
Court.

        Additionally, as noted by the State and found by the trial court, the petitioner has
failed to show by a preponderance of the evidence that the judgment at issue was void or
that his sentence has expired. On appeal, the petitioner argues his sentence is illegal
based upon the trial court’s failure to apply jail credits to his sentence. However, this
Court has previously held that “[a] trial court’s failure to award pretrial or post-judgment
jail credits does not render a sentence illegal and is, therefore, insufficient to establish a
colorable claim for habeas corpus . . . relief.” Cory O’Brien Johnson v. State, No.
W2016-00087-CCA-R3-HC, 2016 WL 4545876, at *2 (Tenn. Crim. App. Aug. 30,
2016), perm. app. denied (Tenn. Dec. 15, 2016) (citations omitted). This issue is without
merit.

       Finally, no evidence exists in the record to support the petitioner’s claim that his
five-year sentence has expired. The record does not include the judgment forms for the
petitioner’s prior cases to which the present sentence was set to run consecutively.
Accordingly, nothing in the record indicates the date upon which the petitioner began
serving the present sentence. The petitioner has failed to provide “an adequate record”
for our review and, as such, has failed to show his sentence has expired.2 Summers, 212
S.W.3d at 261. Accordingly, the petitioner is not entitled to relief.

      When an opinion would have no precedential value, the Court of Criminal
Appeals may affirm the judgment or action of the trial court by memorandum opinion
when the judgment is rendered or the action taken in a proceeding without a jury and
such judgment or action is not a determination of guilt, and the evidence does not
preponderate against the finding of the trial judge. See Tenn. Ct. Crim. App. R. 20. We
conclude that this case satisfies the criteria of Rule 20. Accordingly, the judgment of the

or judge most convenient in point of distance to the applicant, unless a sufficient reason be given in the
petition for not applying to such court or judge.”
        2
        However, assuming as the State did in its motion to dismiss, if the petitioner’s five-year sentence
began on November 13, 2014 when the Violation of Probation Order was filed, even with the four
hundred and ninety-seven days of jail credits, the sentence has not expired.
                                                   -3-
trial court is affirmed in accordance with Rule 20, Rules of the Court of Criminal
Appeals.



                                        ____________________________________
                                        J. ROSS DYER, JUDGE




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