TERRY L. GLENN
BRENDA JONES, WARDEN
Assigned on Briefs March 3, 2015
Appeal from the Circuit Court for Lauderdale County No. 6776 Joe H. Walker III, Judge
Terry L. Glenn, Henning, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel; and D. Michael Dunavant, District Attorney General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
On April 10, 1989, the Petitioner pleaded guilty to first degree burglary and grand larceny and was sentenced as a Range II, persistent offender for an especially aggravated offense to consecutive terms of fifteen years' confinement for the first degree burglary and ten years' confinement for the grand larceny, to be served consecutively to a previously imposed 460-day sentence, for an effective twenty-five-year sentence. On July 31, 2014, he filed a pro se petition for a writ of habeas corpus alleging multiple grounds for relief, including that the judgments were void, that the plea agreement was breached, and that his dual convictions for first degree burglary and grand larceny violated principles of double jeopardy. The habeas corpus court summarily denied relief, concluding that the Petitioner's sentences had not expired, that the trial court had jurisdiction to sentence the Petitioner, that the judgment forms were adequate, and that even if the agreement were breached and a double jeopardy violation occurred, the judgments would be voidable, not void. This appeal followed.
Habeas corpus relief is generally available to "[a]ny person imprisoned or restrained of liberty" whose judgment is void or whose sentence has expired. T.C.A. § 29-21-101 (2012); see Tucker v. Morrow, 335 S.W.3d 116, 119-20 (Tenn. Crim. App. 2009). A petitioner has the burden of proving by a preponderance of the evidence that a judgment is void or that a sentence has expired. State v. Davenport, 980 S.W.2d 407, 409 (Tenn. Crim. App. 1998). A void judgment exists if it appears from the face of the judgment or the record that the convicting court lacked jurisdiction or authority to sentence the defendant or that the defendant's sentence has expired. Archer v. State, 851 S.W.2d 157, 161 (Tenn. 1993); see Moody v. State, 160 S.W.3d 512, 515 (Tenn. 2005). In contrast, "[a] voidable judgment is one that is facially valid and requires proof beyond the face of the record or judgment to establish its invalidity." Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007); see State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000).
Post-conviction relief, not habeas corpus relief, is the appropriate avenue of relief for certain voidable judgments. T.C.A. § 40-30-103 (2012); see Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). A habeas corpus court may dismiss a petition for relief without an evidentiary hearing or the appointment of counsel when the petition fails to state a cognizable claim. Yates v. Parker, 371 S.W.3d 152, 155 (Tenn. Crim. App. 2012); see T.C.A. § 29-21-109 (2012). The question of whether habeas corpus relief should be granted is a question of law, and this court will review the matter de novo without a presumption of correctness. Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005).
Release Eligibility Date or Percentage
The Petitioner contends that the judgments are void because the forms do not reflect a release eligibility date or percentage of the sentences he is required to serve. He argues the trial court's imposing his sentences without a release percentage contravened Tennessee Code Annotated section 40-35-501(e) (1982) (repealed 1989). Additionally, he argues his sentences are illegal because no statute authorizes the denial of a release eligibility date and because he received an effective "100% sentence, " which does not exist under Tennessee law for his convictions. Finally, he argues that without a release eligibility date or percentage, neither judgment form is "full nor definite upon its face." The State argues the judgment forms provide for release eligibility because they indicate the Petitioner was sentenced as a Range II, persistent offender for an especially aggravated offense, which required 50% service of his sentences under former Code section 40-35-501(d) and (e) before he would be eligible for release. Alternatively, the State argues any errors in release eligibility are non-jurisdictional because the Petitioner "plea bargained" for his sentences.
The Petitioner correctly notes that the judgment forms do not reflect a release eligibility date or percentage. However, "a 'technical' omission in a standard judgment form does not render a judgment void and is therefore not a basis for habeas corpus relief." James R.W. Reynolds v. State, No. M2003-00112-CCA-R3-HC, 2004 WL 1293275, at *4 (Tenn. Crim. App. June 8, 2004), perm. app. denied (Tenn. Oct. 4, 2004); see Martin E. Walker v. Howard Carlton, Warden, No. E2006-00452-CCA-R3-HC, 2008 WL 2695649, at *2 (Tenn. Crim. App. July 10, 2008) (holding that the silence of release eligibility on the ...