         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs October 27, 2009

            LESLIE PAUL HATFIELD v. JIM MORROW, WARDEN

                    Appeal from the Circuit Court for Bledsoe County
                         No. 15-2009    J. Curtis Smith, Judge




                   No. E2009-01127-CCA-R3-HC - Filed April 14, 2010


The Petitioner, Leslie Paul Hatfield, appeals the Bledsoe County Circuit Court’s partial
denial of his petition for writ of habeas corpus in which he contended (1) that his conviction
for incest, a Class C felony, was void because he was illegally sentenced to community
supervision for life, (2) that his convictions for two counts of statutory rape, a Class E felony,
and one count each of solicitation of a minor and casual exchange of a Schedule IV
controlled substance, both Class E felonies, were void because he was not awarded all his
pre-trial jail credits, and (3) that his convictions for statutory rape, solicitation of a minor, and
casual exchange were void because he was not awarded pre-trial jail credits against the
sentences that he was ordered to serve concurrently. The trial court granted the writ of
habeas corpus for the Petitioner’s sentence for incest, but it denied habeas corpus relief on
the Petitioner’s remaining grounds. Because the judgment for statutory rape reflects an
illegal sentence and because the Petitioner’s pre-trial credits were not applied to the
sentences that he was ordered to serve concurrently, we reverse the judgment of the trial
court and remand the case for transfer to the Criminal Court for Scott County for the entry
of corrected judgments.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                  Case Remanded

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., J. joined. J OHN E VERETT W ILLIAMS, J., filed a concurring opinion.

Leslie Paul Hatfield, Pikeville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; and James Michael Taylor, District Attorney General, for the appellee,
State of Tennessee.
                                            OPINION

      The July 13, 2004, judgments of conviction reflect that the Petitioner pled guilty
pursuant to a plea agreement and was sentenced as follows:


 Count       Offense         Sentenced         Alternative      Concurrent      Consecutive
                                To              Sentence          With              To
 1         Statutory       2 years in the     8 months’ split   Counts 2, 5,   Count 3
           Rape, Class     Tennessee          confinement;      7
           E Felony        Department         8 years’
                           of Correction      probation
                           (TDOC)

 2         Statutory       2 years in the     2 years’          Counts 1, 5,   Count 3
           Rape, Class     TDOC               probation         7
           E Felony

 3         Incest, Class   6 years in the     6 years’                         Counts 1, 2,
           C Felony        TDOC               probation                        5, 7

 5         Solicitation    2 years in the     2 years’          Counts 1, 2,   Count 3
           of a Minor,     TDOC               probation         7
           Class E
           Felony

 7         Casual          2 years in the     2 years’          Counts 1, 2,   Count 3
           Exchange of     TDOC               probation         5
           Schedule IV
           Controlled
           Substance,
           Class E
           Felony

        The Petitioner’s Waiver of Jury Trial and Request for Acceptance of Plea of Guilty
reflects that the Petitioner agreed to two years’ probation for counts 1, 2, 5, and 7, to be
served concurrently, and to six years’ probation for count 3, to be served consecutively to the
other sentences, for an effective sentence of eight years’ probation. The probation order
similarly shows that the trial court suspended the Petitioner’s sentences to the TDOC and
placed him on supervised probation for eight years. The record contains no orders or
amended judgments reflecting that the court revoked the Petitioner’s probation, nor does it

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contain a transcript of the guilty plea hearing or a probation revocation hearing. However,
the record contains two probation violation warrants, and the Petitioner is now confined in
the Southeastern Tennessee State Regional Correctional Facility at Pikeville.

       The judgment for count 1 provided that the Petitioner serve an alternative sentence
of eight years’ probation for statutory rape, which is a Class E felony. See T.C.A. § 39-13-
506(c)(2003). The judgment for count 1 reflects a pre-trial jail credit period of December
1, 2003 to July 13, 2004, for a total of 226 days. However, the judgments for counts 2, 5, and
7, which run concurrently with count 1, do not reflect the pre-trial jail credit.

       The Petitioner’s petition for writ of habeas corpus and supporting affidavit were
notarized on March 15, 2009, but they show no file stamp reflecting that they were filed with
the Bledsoe County Circuit Court clerk. Nevertheless, on May 20, 2009, the trial court
granted the Petitioner a writ of habeas corpus for the sentence of incest, for which lifetime
community supervision had been imposed. The court determined that the provision for
lifetime community supervision was illegal because incest is not an offense for which the
Code authorizes lifetime supervision. See T.C.A. § 39-13-524(a). The court remanded the
case for entry of a corrected judgment deleting the provision for community supervision for
life. The record does not contain a corrected judgment.

        The trial court denied habeas corpus relief on the Petitioner’s remaining grounds. It
found that “‘[t]o the extent . . . that Petitioner was denied a portion of his pre-trial jail credit
by mistake of calculation or oversight, the proper avenue for relief regarding the application
of pre-trial jail credit is through the uniform Administrative Procedures Act, Tennessee Code
Annotated sections 4-5-101 to -325.’” (quoting Steven Lamont Anderson v. State, No.
W2006-00866-CCA-R3-HC, Hardeman County, slip op. at 4 (Tenn. Crim. App. Mar. 2,
2009)).

        On appeal, the Petitioner contends that the trial court erred in failing to grant a writ
of habeas corpus because his judgments of conviction failed to award mandatory pre-trial jail
credit toward all his concurrent sentences. The State contends that the trial court correctly
denied habeas corpus relief because the application of jail credits is not cognizable in a
habeas corpus petition. We agree with the Petitioner.

       The determination of whether habeas corpus relief should be granted is a question of
law which we review de novo on appeal. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2001).
Habeas corpus relief will be granted when the petitioner can show that a judgment is void,
not merely voidable. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). To this end, a writ
of habeas corpus is granted only “when it appears upon the face of the judgment or the record
of the proceedings upon which the judgment is rendered that a court lacked jurisdiction or

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authority to sentence a defendant or that the sentence has expired.” Stephenson v. Carlton,
28 S.W.3d 910, 911 (Tenn. 2000) (citing Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993)). The burden is on the petitioner to establish by a preponderance of the evidence that
the judgment is void or that a sentence has expired. See Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000); State ex rel. Kuntz v. Bomar, 381 S.W.2d 290, 291-92 (Tenn. 1964). If the
petitioner carries this burden, he is entitled to immediate release relative to that judgment.
Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). However, the trial court
may dismiss a petition for writ of habeas corpus without an evidentiary hearing and without
appointing a lawyer when the petition does not state a cognizable claim for relief. Hickman
v. State, 153 S.W.3d 16, 20 (Tenn. 2004); State ex rel. Edmondson v. Henderson, 421
S.W.2d 635, 636-37 (Tenn. 1967); see also T.C.A. § 29-21-109 (2000).

        The award of pre-trial jail credit is mandatory. T.C.A. § 40-23-101 (2003); see Stubbs
v. State, 393 S.W.2d 150, 154 (Tenn. 1965). Awarding pre-trial credit against only one of
multiple concurrent sentences is improper when the petitioner is held in pre-trial custody on
all charges. See State v. Henry, 946 S.W.2d 833, 835 (Tenn. Crim. App. 1997). “To allow
pretrial jail credit in only one case would contravene the concurrent sentences and effectively
require [the petitioner] to serve a longer sentence on the second charge.” Id.

         The record reflects that the Petitioner committed all the offenses that are the subject
of this appeal on October 13, 2003. The judgment for count 1 awarded the Petitioner pre-
trial jail credit from December 1, 2003 to July 13, 2004. The Petitioner was ordered to serve
the two-year sentences for counts 1, 2, 5, and 7 concurrently. The face of the judgments for
counts 2, 5, and 7 reflect that the trial court failed to grant mandatory pre-trial jail credits for
these concurrent sentences. The judgments of conviction demonstrate illegal sentences on
their face because the failure to award mandatory pre-trial jail credits is in direct
contravention of the statute. See T.C.A. § 40-23-101(c); Hoover v. State, 215 S.W.3d 776,
778 (Tenn. 2007).

        As for the State’s argument that the issue of failure to award pre-trial credits is not
cognizable in a habeas corpus proceeding, we note that disputes over sentence reduction
credits which accrue during a petitioner’s incarceration in the custody of the TDOC are
cognizable under the Administrative Procedures Act. Carroll v. Raney, 868 S.W.2d 721, 723
(Tenn. Crim. App. 1983) (holding that sentence time credits are internal matters of the TDOC
and are properly addressed through the Administrative Procedures Act). Regarding pre-trial
jail credits, however, the awarding of such credits is mandatory and is the obligation of the
trial court. See T.C.A. § 40-23-101(c); Christopher Johnson v. Tenn. Dep’t. of Corr., No.
01-A-01-9602-CH-00064, Davidson County, slip op. at 3-4 (Tenn. Ct. App. Aug. 7, 1996).
The TDOC is powerless to change what the trial court awarded or failed to award. Pursuant



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to Henry, the failure to award pre-trial credits in this case rendered the Petitioner’s judgments
in counts 2, 5, and 7 void.

        Although neither party has raised the issue, we also note that the judgment for count
1 sentences the Petitioner to eight years’ probation, which also renders that judgment void
on its face. The Petitioner was convicted in count 1 of statutory rape, a Class E felony. See
T.C.A. § 39-13-506(c)(2003). The sentencing range for a Range I, standard offender
convicted of a Class E felony is one to two years. T.C.A. § 40-35-112(a)(5). The maximum
sentence for a Class E felony is six years. Id. at (c)(5). A court may place a defendant on
probation “up to and including the statutory maximum time for the class of the conviction
offense.” T.C.A. § 40-35-303(c)(1). Our supreme court has held that a plea bargain may
include a sentence that is outside the offender’s range classification as long as it remains
within the overall punishment range for the conviction offense. See Hoover, 215 S.W.3d at
779; State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1997). Six years was the maximum term
for which the trial court could have imposed probation. The Petitioner’s sentence of
probation was not within the overall punishment range for the offense of which he was
convicted, and the judgment for count 1 is void on its face.

        An illegal sentence does not automatically render invalid a finding of guilt based upon
a guilty plea. “[T]he determinative issue is whether the plea agreement included an illegal
sentence as a material element.” Summers v. State, 212 S.W.3d 251, 259 (Tenn. 2007). The
record is sparse. We leave any issue regarding withdrawal of guilty pleas to the convicting
court.

        In consideration of the foregoing and the record as a whole, we reverse the judgment
of the trial court and remand the case for transfer to the Criminal Court for Scott County for
the entry of corrected judgments.


                                                     ___________________________________
                                                     JOSEPH M. TIPTON, PRESIDING JUDGE




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