Court of Criminal Appeals of Tennessee, Nashville
Session November 12, 2014.
Appeal from the Circuit Court for Williamson County No. I-1196-398-A Timothy L. Easter, Judge.
M. Matthew Milligan, for the Petitioner, Brian Roberson.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Kim Helper, District Attorney General; and Sean B. Buddy, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.
CAMILLE R. McMULLEN, JUDGE.
The record reflects that on April 8, 1996, the Petitioner, Brian Roberson, was indicted by a Williamson County Grand Jury for the sale and delivery of cocaine in case number I-496-117. Thereafter, the Petitioner was released on bond on May 16, 1996. While the case was pending, the Petitioner participated in four separate cocaine transactions on August 8, August 16, September 16, and October 8, 1996. As a result, a Williamson County Grand Jury returned an eight-count indictment in case number I-1196-398-A charging the Petitioner with alternative counts of the sale and delivery of cocaine.
On April 10, 1997, a Williamson County jury found the Petitioner guilty as charged of selling cocaine in case number I-496-117. The trial court subsequently sentenced the Petitioner as a Range I, standard offender to a term of eight and one-half years in the Tennessee Department of Correction. Thereafter, on August 12, 1997, a jury convicted the Petitioner in case number I-1196-398-A on count 7 for the sale of cocaine. He was sentenced to nine years in confinement to be served consecutively to his prior sentence in case number I-496-117.
On January 14, 1998, the Petitioner entered guilty pleas in case number I-1196-398-A to count 1, sale of cocaine; count 3, sale of cocaine; and count 5, possession of cocaine. The trial court imposed eight-year sentences for counts 1 and 3, to be served concurrently to each other. For count 5, the Petitioner received a three-year sentence which was aligned consecutively to the sentences in counts 1 and 3. In addition, his eight-year sentences in counts 1 and 3 were to be served concurrently to "all other previously imposed sentences."
On April 3, 2006, the Petitioner filed a pro se petition for habeas corpus relief in the the Johnson County Criminal Court, alleging that he received illegal sentences for counts 1, 3, and 5 in case number I-1196-398-A because he committed these offenses while on bond in case number I-496-117 and therefore, the sentences in counts 1, 3, and 5 should have run consecutively to his sentence in case number I-496-117. The Johnson County Criminal Court dismissed the petition with a written order on May 9, 2006, and the Petitioner timely appealed to this court. See Brian Roberson v. Howard Carlton, Warden, No. E2006-01551-CCA-R3-HC, 2007 WL 2011030, at *1 (Tenn. Crim. App. July 12, 2007), perm. app. denied (Tenn. Nov. 19, 2007).
Citing Summers v. State, 212 S.W.3d 251 (Tenn. 2007) ("Summers I"), this court concluded that the Petitioner had attached sufficient documentation to warrant appointment of counsel and an evidentiary hearing regarding the legality of his sentences in counts 1 and 3. Brian Roberson, 2007 WL 2011030, at *2. Specifically, the majority reasoned that:
the trial court's ordering the [P]etitioner to serve the sentences in counts 1 and 3 concurrently with all previous sentences would appear to contravene Tennessee Code Annotated section 40-20-111(b) and Tennessee Rule of Criminal Procedure 32(c)(3)(C), and the judgments of conviction in those cases would be void.
Id. However, the dissent would have limited the analysis to case number I-1196-398-A and would not have considered the judgment in case number I-496-117. Id. at *5 (Williams, J., dissenting). The dissent noted that the addition of the concurrent eight-year sentences in case number I-1196-398-A may not have had any practical effect on the aggregate sentence:
[The Petitioner] was sentenced to nine years on judgment I-1196-398-A, count seven, to run consecutively to a "sentence now serving" and, if that sentence was the eight and one-half-year sentence in case number I-496-117, count one, the additional sentences of eight years in counts one and three do ...