Assigned on Briefs December 2, 2014
Appeal from the Criminal Court for Shelby County No. 02-00754 J. Robert Carter, Jr., Judge
Jeffery Yates, Mountain City, Tennessee, pro se.
Herbert H. Slatery, III, Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Eric Christensen, Assistant District Attorney General, for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Roger A. Page, JJ., joined.
D. KELLY THOMAS, JR., JUDGE
The Appellant was convicted in 2003 of aggravated robbery and sentenced as a Range III, career offender to thirty years. The sentencing court's classification of the Appellant as a career offender was based upon the Appellant's prior convictions for attempted aggravated robbery, aggravated kidnapping, especially aggravated kidnapping, two convictions for possession of a controlled substance with intent to sell, and five convictions for aggravated assault. This court affirmed the Appellant's conviction and sentence on direct appeal. State v. Jeffery Yates, No. W2003-02422-CCA-MR3-CD, 2005 WL 1707974 (Tenn. Crim. App. July 21, 2005), perm. app. denied, (Tenn. Dec. 19, 2005).
The Appellant filed a timely petition for post-conviction relief alleging, among numerous other issues, that his trial counsel was ineffective for failing "to notify the trial court that [his] prior convictions were void and could not be considered for sentencing purposes." Jeffery Yates v. State, No. W2008-02498-CCA-R3-PC, 2009 WL 2985949, at *5 (Tenn. Crim. App. Sept. 18, 2009), perm. app. denied, (Tenn. Feb. 22, 2010). The post-conviction court rejected the Appellant's claim, and this court affirmed that decision on appeal. Id. at *12.
The Appellant filed a petition for writ of habeas corpus arguing that the convictions the sentencing court used to classify him as a career offender were void; therefore, his thirty-year sentence as a Range III, career offender was an illegal sentence. Jeffery Yates v. State, No. W2007-02868-CCA-R3-HC, 2008 WL 3983111 (Tenn. Crim. App. Aug. 27, 2008) (memorandum opinion), perm. app. denied, (Tenn. Jan. 20, 2009). The habeas corpus court summarily denied the Appellant's petition, and this court affirmed the decision on appeal. Id.
At the heart of the Appellant's argument in his habeas corpus petition were two sets of convictions. Yates, 2008 WL 3983111, at *1. In 1993, the Appellant was convicted by a jury of especially aggravated kidnapping, aggravated kidnapping, and attempted aggravated robbery for which he received an effective sentence of eighteen years. Id. In 1994, the Appellant pled guilty to five counts of aggravated assault and two counts of possession of cocaine with intent to sell for which he received an effective sentence of ten years. The sentences for the 1994 convictions were ordered to be served concurrently to the sentences for the 1993 convictions. Id.
In his petition for writ of habeas corpus, the Appellant argued that he was on bail for some of the crimes which resulted in his 1994 convictions when he committed the offenses that resulted in his 1993 convictions. Yates, 2008 WL 3983111, at *1. As such, the Appellant argued that the sentences for each set of convictions were statutorily mandated to be served consecutively rather than concurrently. Id.; see also Tenn. Code Ann. § 40-20-111(b) (mandating consecutive sentences when a defendant commits a felony while released on bail and is convicted of both offenses). The Appellant concluded that his sentences for his 1993 and 1994 convictions were illegal and void; therefore, his 2003 sentence was also illegal because the 1993 and 1994 convictions had been used to classify the Appellant as a career offender. Yates, 2008 WL 3983111, at *1.
This court rejected the Appellant's arguments, holding that he was "not currently restrained of his liberty as a result of" the 1993 and 1994 convictions. Yates, 2008 WL 3983111, at *2. The opinion stated that it was well-established that "habeas corpus relief is not available for expired sentences that are used solely to enhance a subsequent conviction." Id. (quoting Paul Wilson v. Stephen Dotson, Warden, No. W2005-02317-CCA-R3-HC, 2006 WL 1205636, at *2 (Tenn. Crim. App. May 4, 2006), perm. app. denied, (Tenn. Sept. 25, 2006)).
The Appellant filed a second petition for writ of habeas corpus alleging that his 2003 sentence was illegal because "the trial court relied on an invalid prior conviction to classify him as a Range III, career offender." Yates v. Parker, 371 S.W.3d 152, 154 (Tenn. Crim. App. 2012). The habeas corpus court summarily denied the petition. This court affirmed the summary denial holding that the Appellant had failed to "state which of the prior convictions . . . was invalid or the basis of the invalidity." Id. at 156. The opinion further stated that an error in a defendant's offender classification was not a cognizable claim for habeas corpus relief because such an error generally did not render a sentence illegal. Id.
The Appellant also filed two petitions for writ of habeas corpus directly challenging the concurrent service of his 1993 and 1994 convictions. Both petitions were summarily denied. In affirming the summary dismissal of the first petition, this court held that the Appellant had "failed to attach any other documents [beyond the judgments of conviction] to his petition which show that he was on bail for the prior six offenses when he committed the latter three offenses." Jeffery Yates v. State, No. W2006-00969-CCA-R3-HC, 2007 WL 936117, at *2 (Tenn. Crim. App. Mar. 29, 2007), perm. app. denied, (Tenn. Aug. 13, 2007). Summary dismissal of the second petition was affirmed because the Appellant was not presently restrained of liberty for the challenged judgments and ...