Court of Criminal Appeals of Tennessee, Knoxville
PHILLIP W. KELLEY
SHAWN PHILLIPS, WARDEN, ET AL.
from the Criminal Court for Morgan County No. 2016-CR-41
Jeffrey Hill Wicks, Judge
se Petitioner, Phillip W. Kelley, appeals as of right from
the Morgan County Criminal Court's order summarily
dismissing his petition for writ of habeas corpus alleging
that his 1982 convictions for three counts of first degree
murder and one count of assault with intent to commit murder
are void because the trial court's minutes failed to
reflect the indictments. The State has filed a motion to
affirm the trial court's judgment pursuant to Rule 20 of
the Rules of the Tennessee Court of Criminal Appeals.
Following our review, we conclude that the State's motion
is well-taken and affirm the judgment of the trial court.
R. App. P. 3; Judgment of the Criminal Court Affirmed
Pursuant to Rule 20, Rules of the Court of Criminal Appeals
Phillip W. Kelley, Wartburg, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; and
Benjamin A. Ball, Senior Counsel, for the appellee, State of
Kelly Thomas, Jr., J., delivered the opinion of the Court, in
which James Curwood Witt, Jr., and Norma McGee Ogle, JJ.,
KELLY THOMAS, JR., JUDGE
1982, a Maury County Circuit Court jury convicted the
Petitioner of three counts of first degree murder and one
count of assault with intent to commit murder. The Petitioner
was sentenced to three life sentences and 25 years,
respectively, to be served consecutively. This court affirmed
his convictions and sentence on direct appeal. State v.
Kelley, 683 S.W.2d 1 (Tenn. Crim. App. 1984).
and by an amendment in 1998, the Petitioner sought
post-conviction relief. The trial court "dismissed the
post-conviction petition as untimely and substantively
without merit." Phillip Wayne Kelley v. State, No.
01C01-9804-CC-00156, 1991 WL 275292, at *1 (Tenn. Crim. App.
May 6, 1999). This court affirmed the denial of
post-conviction relief on direct appeal. Id. at *2.
2014, the Petitioner filed a motion to correct illegal
sentences alleging that his sentences were illegal because
the trial court records failed to show a proper entry of
minutes of the court. The trial court ruled that the
Petitioner failed to state a colorable claim for 36.1 relief
and denied the motion. This court affirmed the trial
court's judgment on appeal. State v. Phillip W.
Kelley, No. M2014-01230-CCA-R3-CD, 2015 WL 3473580, at
*2 (Tenn. Crim. App. June 2, 2015) perm. app. denied
(Tenn. Sept. 17, 2015). In affirming the judgment of the
trial court, this court concluded
The record clearly establishes that the indictments were
properly entered in the Maury County Circuit Court minutes as
required by Tennessee Code Annotated section 40-13-109.
Specifically, the statute requires that all felony
indictments returned into court by the grand jury with the
endorsement a "true bill" shall be entered by the
clerk with the return in full on the minutes of the court. As
noted by the trial court, page 267 of State Minute Book 43
contains the report of the Maury County Grand Jury, which
states that the indictments were returned "into open
court" at the May 1982 term. The Petitioner's
indictments describe the offense charged, name the
Petitioner, and include the findings of the Maury County
26, 2016, the Petitioner filed the instant petition for writ
of habeas corpus alleging once again that his convictions are
void because the indictments were not properly reflected in
the court minutes. The State filed a response arguing that
the same allegation had been determined to be without merit
in the Petitioner's Rule 36.1 motion and that the
Petitioner was not entitled to habeas corpus relief. On
August 2, 2016, the trial court summarily denied the
petition. The Petitioner filed a timely notice of appeal.
determination of whether to grant habeas corpus relief is a
question of law and our review is de novo. Summers v.
State, 212 S.W.3d 251, 262 (Tenn. 2007). The Tennessee
Constitution guarantees a convicted criminal defendant the
right to seek habeas corpus relief. Tenn. Const. art. I,
§ 15. However, the grounds upon which habeas corpus
relief will be granted are very narrow. Taylor v.
State, 995 S.W.2d 78, 83 (Tenn. 1999). In this state,
habeas corpus relief only addresses detentions that result
from void judgments or expired sentences. Archer v.
State, 851 S.W.2d 157, 164 (Tenn. 1993). A petitioner
bears the burden of establishing a void judgment or illegal
confinement by a preponderance of the evidence. Hogan v.
Mills, 168 S.W.3d 753, 755 (Tenn. 2005). Moreover, it is
permissible for a court to summarily dismiss a habeas corpus
petition, without the appointment of counsel ...