Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 18, 2018
from the Circuit Court for Hickman County No. 16-CV-49 James
G. Martin, III, Judge
Petitioner, Charles Owens, appeals the dismissal of his
petition for writ of habeas corpus by the Hickman County
Circuit Court. On appeal, the Petitioner argues that his
convictions for aggravated sexual battery are void because
(1) the trial court announced his sentence through written
order, without the Petitioner present, in violation of
Tennessee Rule of Criminal Procedure 43(a)(3); and (2) the
trial court ordered partial consecutive sentencing in
violation of Tennessee Code Annotated section 40-20-111(a).
Following our review, we affirm the dismissal of the
petition, pursuant to Rule 20, Rules of the Court of Criminal
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Charles Owens, Only, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter;
Alexander C. Vey, Assistant Attorney General; Kim R. Helper,
District Attorney General; and Brian Holmgren, Assistant
District Attorney General, for the appellee, State of
Camille R. McMullen, J., delivered the opinion of the court,
in which John Everett Williams and Robert W. Wedemeyer, JJ.,
CAMILLE R. McMULLEN, JUDGE
a jury trial, the Petitioner was convicted of six counts of
aggravated sexual battery involving a minor. State v.
Charles Owens, No. M2005-02571-CCA-R3-CD, 2007 WL
1094136, at *1 (Tenn. Crim. App. Apr. 12, 2007), perm.
app. denied (Tenn. Aug. 20, 2007). After a sentencing
hearing, the trial court took the case under advisement and
subsequently issued its ruling by written order. The trial
court sentenced the Petitioner to eight years for each
aggravated sexual battery conviction. Counts two and three
were to be served consecutively with each other and to his
conviction in count one, and counts four, five, and six were
to be served concurrently with his sentence in count one, for
an effective sentence of twenty-four years. Id. In
his direct appeal, which was affirmed by this court, the sole
issue presented for review concerned prosecutorial
misconduct. The Petitioner then filed a petition for
post-conviction relief, alleging ineffective assistance of
counsel, the denial of which was also affirmed by this court.
Charles Owens v. State, No. M2009-00558-CCA-R3-PC,
2010 WL 1462529, at *1 (Tenn. Crim. App. Apr. 13, 2010),
perm. app. denied (Tenn. Sept. 22, 2010).
the Petitioner filed a Rule 36.1 motion arguing for the first
time that his sentence was illegal and void because he was
not present at his sentencing in violation of Rule 43(a)(3)
of the Tennessee Rules of Criminal Procedure. State v.
Charles Owens, No. M2015-01361-CCA-R3-CD, 2016 WL
943935, at *1 (Tenn. Crim. App. Mar. 14, 2016), perm.
app. denied (Tenn. June 23, 2016). This court affirmed
the trial court's dismissal of the motion and explained:
The [Petitioner] could have pursued by direct appeal or
petition for post-conviction relief his complaint that he was
not present at his sentencing. Since his claim, even if true,
goes to the methodology of his sentencing but would not
result in his sentence being illegal, his motion failed to
present a colorable claim for relief and was properly
dismissed without a hearing.
Id. at *2.
Petitioner filed the instant petition for writ of habeas
corpus on August 26, 2016, alleging once more that his
sentence was illegal and void pursuant to Rule 43(a)(3). He
filed an amended petition for writ of habeas corpus on
January 20, 2017, which was substantially similar to the
prior petition except that it asserted a second error by the
trial court in ordering partial consecutive sentences. The
State filed a motion to dismiss the petition asserting that
the Petitioner stated no cognizable claims for relief and the
trial court granted the dismissal. In its written order, the
trial court, noting this court's prior decision,
concluded that the Petitioner's first claim attacked the
"methodology by which the trial court imposed its
sentence rather than alleging that the sentence itself was
illegal or erroneous." The trial court reasoned that
attacks on methodology do not qualify as fatal errors, but
are instead ...