Court of Criminal Appeals of Tennessee, Nashville
PHILLIP M. MULLINS
CHERRY LINDAMOOD, WARDEN
Assigned on Briefs June 20, 2017
from the Circuit Court for Wayne County No. 15943 Robert L.
Petitioner, Phillip M. Mullins, appeals the Wayne County
Circuit Court's summary dismissal of his petition for a
writ of habeas corpus from his 2001 convictions and his
effective sentence of life without the possibility of parole
plus twenty-five years. He contends that his convictions
violate double jeopardy principles on several grounds. We
affirm the judgment of the habeas corpus court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Phillip M. Mullins, Clifton, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Senior Counsel; Brent A. Cooper, District
Attorney General, for the appellee, State of Tennessee.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which Alan E. Glenn and Timothy L. Easter, JJ., joined.
H. MONTGOMERY, JR., JUDGE
October 19, 2001, the Petitioner was convicted of first
degree felony murder, second degree murder, especially
aggravated robbery, and especially aggravated burglary. The
murder convictions were merged, and the Petitioner received a
life sentence without the possibility of parole. The
Petitioner also received concurrent sentences of twenty-five
years for the especially aggravated robbery conviction and
twelve years for the especially aggravated burglary
conviction, which were to be served consecutively to the life
sentence. The Petitioner's convictions were affirmed on
appeal. See State v. Phillip M. Mullins, No.
M2002-02977-CCA-R3-CD, 2003 WL 23021402 (Tenn. Crim. App.
Dec. 29, 2003), perm. app. denied (Tenn. Jun. 1,
2004). He filed a petition for post-conviction relief,
alleging the ineffective assistance of counsel and several
other claims. The post-conviction court denied the petition,
and this court affirmed. See Phillip M. Mullins v.
State, No. M2008-00332-CCA-R3-PC, 2008 WL 5272573 (Tenn.
Crim. App. Dec. 19, 2008), perm. app. denied (Tenn.
Apr. 27, 2009). On October 17, 2016, the Petitioner filed a
pro se petition for a writ of habeas corpus, alleging that
the indictments were defective because (1) Count 1, felony
murder, named aggravated burglary as the underlying felony,
for which the Petitioner was not indicted, (2) Count 4,
especially aggravated burglary, failed to allege a mental
state and alleged that a robbery occurred, not a theft, and
(3) Count 4 charged two separate offenses in the same count,
especially aggravated burglary and robbery. The habeas corpus
court summarily denied relief, concluding that the Petitioner
had not alleged a cognizable claim and that the trial court
had jurisdiction to sentence him. This appeal followed.
appeal, the Petitioner does not address the issues raised in
the pro se petition, but rather raises several additional
issues: (1) The Petitioner's convictions violate double
jeopardy because they arose from the same criminal episode;
(2) Dual convictions for especially aggravated burglary and
especially aggravated robbery relying upon the same injury to
the victim are statutorily barred; and (3) the
Petitioner's convictions in Counts 1 and 3 violate double
jeopardy because "the Appellant was convicted in Counts
1 and 3 of especially aggravated burglary, since the burglary
was the underlying felony" for felony murder, and only
one entry of a habitation occurred.
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).
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