Court of Criminal Appeals of Tennessee, Knoxville
PERRY L. MCCROBEY,
STATE OF TENNESSEE
Assigned on Briefs September 16, 2014.
Direct Appeal from the Criminal Court for Hamilton County No. 290369 Rebecca J. Stern, Judge.
Perry L. McCrobey, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; and William H. Cox, III, District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the Court, in which Roger A. Page, and Robert H. Montgomery, Jr., JJ., joined.
NORMA McGEE OGLE, JUDGE.
I. Factual Background
In April 1994, the Hamilton County Grand Jury indicted the Petitioner for possessing cocaine on December 27, 1993, with intent to sell or deliver. On April 7, 1995, the Petitioner pled guilty to possession of cocaine for resale, a Class B felony, and received an eight-year sentence. According to the judgment, the Petitioner was to serve the sentence concurrently with a federal sentence. More than eighteen years later, on December 12, 2013, the Petitioner filed a "PETITION FOR WRIT OF HABEAS CORPUS, POST CONVICTION RELIEF, AND/OR WRIT OF ERROR CORAM NOBIS, " alleging that he was entitled to relief because (1) his guilty plea was void or voidable due to his plea not being entered knowingly, intelligently and voluntarily, (2) he received the ineffective assistance of counsel, and (3) he was actually innocent of the offense. The Petitioner acknowledged that his petitions for post-conviction relief and writ of error coram nobis were untimely but argued that he was entitled to tolling of the statute of limitations.
On January 21, 2014, the trial court issued an order dismissing the petitions. Regarding the writ of habeas corpus, the trial court denied relief on the basis that the Petitioner's judgment of conviction was no longer the cause of his imprisonment or the restraint on his liberty. Regarding the petition for post-conviction relief, the court concluded that the petition was untimely and that due process did not require tolling the statute of limitations. As to the writ of error coram nobis, the trial court determined that the petition did not "allege the discovery of new, admissible-at-trial evidence of actual innocence, only the discovery of new, irrelevant-at-trial-and-therefore-inadmissible-at-trial evidence of ineffectiveness of counsel." The Petitioner filed a timely notice of appeal to this court.
The Petitioner contends that he is entitled to habeas corpus relief because his "plea agreement effectively amended the indictment, as there was a defect in the indictment itself." The determination of whether to grant habeas corpus relief is a question of law. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). Accordingly, we will review the trial court's findings de novo without a presumption of correctness. Id. Moreover, the petitioner has the 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). However, "[s]uch relief is available only when it appears from the face of the judgment or the record of the proceedings that a trial court was without jurisdiction to sentence a defendant or that a defendant's sentence of imprisonment or other restraint has expired." Wyatt, 24 S.W.3d at 322; see also Tenn. Code Ann. § 29-21-101. In other words, habeas corpus relief may be sought only when the judgment is void, not merely voidable. 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).
As a prerequisite to habeas corpus relief, a petitioner "must be 'imprisoned or restrained of liberty' by the challenged convictions." Benson v. State, 153 S.W.3d 27, 31 (Tenn. 2004) (quoting Tenn. Code Ann. § 29-21-101). Persons detained because of federal convictions are not entitled to state habeas review of their federal detention. See Tenn. Code Ann. § 29-21-102. The "[u]se of the challenged judgment to enhance the sentence imposed on a separate conviction is not a restraint of liberty sufficient to permit a habeas corpus challenge to the original conviction long after the sentence on the original conviction has expired." Hickman v. State, 153 S.W.3d 16, 23 (Tenn. 2004). Moreover, "[h]abeas corpus relief does not lie to address a conviction after the sentence on the conviction has been fully served." Summers v. State, 212 S.W.3d 251, 257 (Tenn. 2007).
The Petitioner pled guilty on April 7, 1995, and was ordered to serve his sentence concurrently with a federal sentence. He is presently incarcerated in a federal prison, and nothing in the record suggests that he is serving the sentence from the challenged judgment with his current federal sentence, notably because the 1995 sentence has apparently expired. See Faulkner v. ...