Summers v. State

• Decision Date: 23 January 2007
• Citation: 212 S.W.3d 251
• Parties: Charles G. SUMMERS v. STATE of Tennessee.
• Court: Tennessee Supreme Court

212 S.W.3d 251

Charles G. SUMMERS v. STATE of Tennessee.

Supreme Court of Tennessee, at Nashville.

October 5, 2006 Session.

January 23, 2007.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Amy L. Tarkington, Deputy Attorney General; Richard H. Dunavant and Renee W. Turner, Assistant Attorneys General, for Appellant, State of Tennessee.

Douglas Thompson Bates, III, Centerville, Tennessee, for Appellee, Charles G. Summers.

OPINION

JANICE M. HOLDER, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and CORNELIA A. CLARK and GARY R. WADE, JJ., and ADOLPHO A. BIRCH, JR., Sp.J., joined.

The petitioner, Charles G. Summers, filed a habeas corpus petition challenging the legality of his concurrent sentence for misdemeanor escape. The trial court summarily dismissed the petition. The Court of Criminal Appeals reversed, concluding that Summers should be afforded the benefit of counsel and an opportunity to prove his allegations to the trial court under McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001). We granted the State's application for permission to appeal. For the reasons stated herein, we overrule McLaney to the extent that it can be interpreted to require the appointment of counsel and a hearing whenever a pro se habeas corpus petition alleges that an agreed sentence is illegal based on facts not apparent from the face of the judgment. We hold that summary dismissal may be proper when, as in this case, the petitioner fails to attach to the habeas corpus petition pertinent documents from the record of the underlying proceedings to support his factual assertions. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the trial court's judgment dismissing the petition for writ of habeas corpus.

BACKGROUND

The petitioner, Charles G. Summers, was charged in the Giles County Circuit Court with first degree murder, aggravated arson, sale of cocaine, and felony escape. On October 25, 1991, judgments were entered on all four charges. On the first degree murder charge, Summers pleaded nolo contendere to the amended charge of voluntary manslaughter and received a six-year sentence. Summers pleaded guilty to the charges of aggravated arson and the sale of cocaine, and the trial court imposed sentences of twenty-three years and eleven years, respectively. Finally, Summers pleaded guilty to the amended charge of misdemeanor escape, for which he received a sentence of eleven months and twenty-nine days. The three felony sentences were ordered to run consecutively to each other for an effective sentence of forty years. The misdemeanor escape sentence was ordered to run concurrently with the felony sentences.

Almost thirteen years later, on September 24, 2004, Summers filed a pro se habeas corpus petition in the Hickman County Circuit Court, alleging that he was being held for the other charges when he escaped and that the trial court therefore lacked jurisdiction to order the escape sentence to be served concurrently with the other sentences. Summers attached all four Giles County judgments to his habeas corpus petition, but he did not include any part of the record of the proceedings upon which the judgments were rendered. No offense date is indicated on any of the four judgments. The trial court dismissed Summers' habeas corpus petition without appointing counsel or holding a hearing.

The Court of Criminal Appeals reversed the summary dismissal and remanded the case to the Hickman County Circuit Court for the appointment of counsel if Summers was indigent and for a determination of whether Summers was being held for the other charges when he escaped. We granted review and appointed counsel to represent Summers for purposes of this appeal.

ANALYSIS

The determination of whether habeas corpus relief should be granted is a question of law. Hart v. State, 21 S.W.3d 901, 903 (Tenn.2000). Therefore, our review is de novo with no presumption of correctness given to the findings and conclusions of the lower courts. State v. Livingston, 197 S.W.3d 710, 712 (Tenn.2006).

The right to seek habeas corpus relief is guaranteed by article I, section 15 of the Tennessee Constitution, which states that "the privilege of the writ of Habeas Corpus shall not be suspended, unless when in case of rebellion or invasion, the General Assembly shall declare the public safety requires it." Habeas corpus procedure in Tennessee has been regulated by statute since 1858. State v. Ritchie, 20 S.W.3d 624, 629 (Tenn.2000).

Although no statute of limitations exists for filing a habeas corpus petition, the grounds upon which habeas corpus relief will be granted are narrow. Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004). Habeas corpus relief is available "only when `it appears upon the face of the judgment or the record of the proceedings upon which the judgment is rendered' that a convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant's sentence of imprisonment or other restraint has expired." Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (Tenn.1868)). Thus, the writ of habeas corpus will issue only in the case of a void judgment or to free a prisoner after his term of imprisonment or other restraint has expired. Potts v. State, 833 S.W.2d 60, 62 (Tenn.1992). Unlike a post-conviction petition, a habeas corpus petition is used to challenge void and not merely voidable judgments. Id. A voidable judgment is one that is facially valid and requires proof beyond the face of the record or judgment to establish its invalidity. Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn.1998). A void judgment is one that is facially invalid because the court did not have the statutory authority to render such judgment. Id.

Summers contends that his concurrent sentence for misdemeanor escape was imposed in direct contravention of Tennessee Code Annotated section 39-16-605(c) and Tennessee Rule of Criminal Procedure 32(c)(3)(B). The provisions of Tennessee Rule of Criminal Procedure 32(c)(3) incorporate various statutory provisions mandating consecutive sentencing. See Hogan v. Mills, 168 S.W.3d 753, 756 (Tenn.2005). Rule 32(c)(3) provides:

When a defendant is convicted of multiple offenses from one trial or when the defendant has additional sentences not yet fully served as the result of convictions in the same or other courts and the law requires consecutive sentences, the sentence shall be consecutive whether the judgment explicitly so orders or not. This rule shall apply:

(A) to a sentence for a felony committed while on parole for a felony;

(B) to a sentence for escape or for a felony committed while on escape;

(C) to a sentence for a felony committed while the defendant was released on bail and the defendant is convicted of both offenses; and

(D) for any other ground provided by law.

Tenn. R.Crim. P. 32(c)(3) (emphasis added).¹ Subpart (B) tracks Tennessee Code Annotated section 39-16-605(c), which provides: "Any sentence received for [escape] shall be ordered to be served consecutively to the sentence being served or sentence received for the charge for which the person was being held at the time of the escape." Tenn.Code Ann. § 39-16-605(c) (2006).² Both section 39-16-605(c) and Rule 32(c)(3)(B) require consecutive sentencing for an escape conviction.

Summers asserts that the concurrent sentence for escape is illegal and that his judgment is therefore void. A sentence imposed in direct contravention of a statute is void and illegal. Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn.2000). A trial court may correct an illegal or void sentence at any time. Moody v. State, 160 S.W.3d 512, 516 (Tenn.2005). A habeas corpus petition, rather than a motion to correct an illegal sentence, is the proper procedure for challenging an illegal sentence. Id.³

Summers relies upon McLaney v. Bell, 59 S.W.3d 90 (Tenn.2001), and argues that the void judgment invalidates his plea agreement. McLaney involved provisions mandating consecutive sentencing when a defendant commits a felony while released on bail. 59 S.W.3d at 92. McLaney pleaded guilty to aggravated rape, rape, and third degree burglary and received concurrent sentences as part of a plea agreement. Eleven years later, McLaney filed a pro se habeas corpus petition, alleging that he had been charged with rape and released on bail when he committed the subsequent rape and burglary. He asserted that the judgments imposing concurrent sentences were void as they directly contravened Tennessee Code Annotated section 40-20-111(b)⁴ and Tennessee Rule of Criminal Procedure 32(c)(3)(C). The trial court summarily dismissed the petition, and the Court of Criminal Appeals affirmed. This Court reversed the summary dismissal, stating:

Had McLaney been represented by counsel, we would find no error in this dismissal. Had an attorney been appointed, if the record of the underlying proceedings clearly showed that the latter rape and burglary offenses were committed while McLaney was on bail, appointed counsel presumably would have brought those records to the attention of the court, and a determination whether the judgment was void could have been resolved on the merits.

Id. at 94. This Court further held that if McLaney's allegations were proven in the record of the underlying convictions, then the concurrent sentences were void and McLaney's plea could be withdrawn. Id. at 94-95. This Court therefore remanded the case for appointment of counsel and a determination as to whether the "evidence of record," i.e., the record of the underlying proceedings, indicated that McLaney was on bail when he committed the offenses at issue. Id. at 95.

The State counters that any illegality is now moot because the escape sentence was served and expired and that the remaining judgments are voidable, not void. The State asks this Court to revisit McLaney and...