Roger T. Johnson v. Ricky Bell, Warden ( 2012 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs November 10, 2011
    ROGER T. JOHNSON v. RICKY BELL, WARDEN
    Direct Appeal from the Criminal Court for Davidson County
    No. 94B1113    J. Randall Wyatt, Jr., Judge
    No. M2011-00945-CCA-R3-HC - Filed February 27, 2012
    The petitioner, Roger T. Johnson, appeals the Davidson County Criminal Court’s summary
    dismissal of his pro se petition for the writ of habeas corpus. In 1994, the petitioner pled
    guilty to first degree murder and second degree murder, and the trial court sentenced him to
    the agreed sentence of consecutive terms of life plus thirty years in the Department of
    Correction. In the instant petition for habeas corpus relief, the petitioner alleges that his
    convictions are void because the trial court illegally altered the terms contained in his
    judgment of conviction for second degree murder. This alteration, he asserts, includes an
    illegal sentence. He further contends the trial court erred when it summarily dismissed his
    petition. Following review of the record, we find no error and affirm.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
    J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
    W OODALL and R OBERT W. W EDEMEYER, JJ., joined.
    Roger T. Johnson, Wartburg, Tennessee, pro se.
    Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney
    General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant
    District Attorney General, for the appellee, State of Tennessee.
    OPINION
    Procedural History
    In December 8, 1994, the petitioner pled guilty to first degree murder and second
    degree murder. The trial court imposed the sentence agreed to by the parties, consecutive
    sentences of life for the first degree murder conviction plus thirty years for the second degree
    murder conviction. Attached to the petitioner’s petition is an amended judgment, entered on
    December 14, 1994, in which the trial court entered an amended judgment, modifying the
    petitioner’s sentence for second degree murder to twenty-five years and eight months. The
    trial court hand wrote notes in the “Special Conditions” section of the judgment, but those
    notes are not legible on the copy included in the record.
    The petitioner did not timely appeal his guilty pleas or sentences. This is, however,
    his fourth petition for habeas corpus relief. This court set out the relevant factual background
    in its opinion affirming the dismissal of the petitioner’s first habeas corpus petition:
    On December 7, 1994, Petitioner entered guilty pleas to one count of first
    degree murder and one count of second degree murder in exchange for a
    sentence of life followed by a thirty year sentence as a Range I offender. The
    trial court amended the judgment on December 8, 1994 to reflect a sentence
    of twenty-five years and eight months on the second degree murder count to
    be served as a Range II offender. FN1 On June 18, 2002, Petitioner filed, pro
    se, a petition for writ of habeas corpus relief, alleging that his plea bargain
    agreement was breached by the trial court’s amendment of the judgment.
    Petitioner alleged that the breach of the plea bargain agreement rendered his
    conviction void.
    FN1. The record does not reflect the reason for this change.
    The amendment did not modify the petitioner’s release
    eligibility in any material way. The original judgment of thirty
    years as a Range I offender with 30% release eligibility would
    have resulted in release eligibility after nine years. The
    amended judgment of twenty-five years, eight months as a
    Range II offender with 35% release eligibility results in release
    eligibility after 8.98 years.
    By order entered July 18, 2002, the trial court denied Petitioner’s application
    for habeas corpus relief. The trial court found that Petitioner had failed to
    allege grounds for relief cognizable in a state habeas corpus action. The court
    ruled that at most, Petitioner’s claim of a breached plea agreement would
    render the convictions voidable, rather than void. Petitioner filed a motion to
    rehear in the trial court, which was denied by order dated October 17, 2002.
    Roger T. Johnson v. State, No. M2002-02902-CCA-R3-CO, 
    2004 WL 443971
    , at *1 (Tenn.
    Crim. App. at Nashville, Mar. 5, 2004), perm. to appeal denied (Tenn. June 21, 2004).
    In our opinion on the petitioner’s third petition for habeas corpus relief, we stated the
    following:
    Under the Tennessee Criminal Sentencing Reform Act of 1989 (“the 1989
    Act”), the petitioner was classified as a Range I offender, for whom the
    statutorily authorized penalty for second degree murder, a Class A felony, is
    fifteen to twenty-five years. However, as part of the plea agreement, the
    petitioner agreed to plead “out of the range” and accept a thirty-year sentence
    on the second degree murder count. Id.
    Roger T. Johnson v. Wayne Brandon, Warden, No. M2007-00182-CCA-R3-HC, 
    2007 WL 3275274
     (Tenn. Crim. App., at Nashville, Nov. 6, 2007), perm. app. denied (Tenn. Feb. 25,
    2008).
    In our decision on the petitioner’s third petition for habeas corpus relief, we
    summarized the arguments maintained by the petitioner on appeal as follows:
    As we have set out, in his first petition for habeas corpus relief, the
    petitioner alleged that the trial court’s amendment of his judgment for second
    degree murder amounted to a breach of his plea agreement, rendering his
    conviction void. Roger T. Johnson, 
    2004 WL 443971
    , at *1. He now
    challenges the same conviction on a somewhat different basis, arguing that his
    plea agreement was never enforceable because it violated Tennessee Code
    Annotated sections 40-35-105 and 40-35-112, parts of the 1989 Act dealing
    with offender classification and sentencing ranges, FN2 and that, as we
    understand, the court could not amend the first judgment without a hearing. He
    contends that the 1989 Act “did not provide for coupling different
    incarceration and release eligibility ranges.” On appeal, the petitioner also
    claims that the trial court erred by not allowing him sufficient time to oppose
    the State’s motion to dismiss his petition and violated his right to due process
    by allowing the State to file a response to his original petition after it had been
    amended. He further asserts, on appeal, that it was improper for the trial court
    to dismiss his petition without appointing counsel and conducting an
    evidentiary hearing. . . .
    FN2. Section 40-35-105 defines the term “standard offender” as
    used in the Tennessee Criminal Sentencing Reform Act of 1989,
    and section 40-35-112 establishes the sentencing ranges for
    different offenders and felony classes.
    After a thorough review of the record and the petitioner’s arguments, this court held that the
    trial court had properly summarily dismissed the petitioner’s petition for habeas corpus relief.
    Id. at *5.
    In the instant petition, the petitioner alleges that the trial court was without jurisdiction
    to convict or sentence him. He asserts that the trial court failed to advise him of some of his
    rights at the time that he pled guilty. While not entirely clear, the petitioner seemingly argues
    that the trial court should have, sua sponte, rejected the petitioner’s plea of guilty. The
    petitioner then, again, notes that the trial court improperly amended his judgment to reflect
    a sentence of twenty-five years and three months, as a Range II offender, rather than the
    contemplated thirty years, as a Range I offender.
    The trial court summarily dismissed the petitioner’s petition, and the petitioner now
    appeals. On appeal, the petitioner alleges that his convictions are void because the trial court,
    he contends, illegally altered the terms contained in his judgment of conviction for second
    degree murder. This alteration, he asserts, includes an illegal sentence. He further contends
    the trial court erred when it summarily dismissed his petition.
    Analysis
    The determination of whether habeas corpus relief is proper is a question of law,
    subject to de novo review on appeal, without a presumption of correctness given to the
    findings of the lower court. Summers v. State, 
    212 S.W.3d 251
    , 255 (Tenn. 2007) (citing
    Hart v. State, 
    21 S.W.3d 901
    , 903 (Tenn. 2000); State v. Livingston, 
    197 S.W.3d 710
    , 712
    (Tenn. 2006)).
    Habeas corpus relief is available in Tennessee “only when it appears
    upon the face of the judgment or the record of the proceedings upon which the
    judgment is rendered” that a convicting court was without jurisdiction or
    authority to sentence a defendant, or that a defendant's sentence of
    imprisonment or other restraint has expired.
    Id. (quoting Archer v. State, 
    851 S.W.2d 157
    , 164 (Tenn.1993)).
    “[A] habeas corpus petition is used to challenge void and not merely voidable
    judgments.” Summers, 212 S.W.3d at 255-56. “A void judgment is one that is facially
    invalid because the court did not have the statutory authority to render such judgment.” Id.
    at 256 (citing Dykes v. Compton, 
    978 S.W.2d 528
    , 529 (Tenn. 1998)). On the other hand,
    a “voidable judgment is one that is facially valid and requires proof beyond the face of the
    record or judgment to establish its invalidity.” Id. “The petitioner has the burden of
    establishing by a preponderance of the evidence that his judgment is void or that his term of
    imprisonment has expired.” Passarella v. State, 
    891 S.W.2d 619
    , 627 (Tenn. Crim. App.
    1994). “If the petitioner establishes by a preponderance of the evidence that his conviction
    is void or that his term of imprisonment has expired, he is entitled to immediate release.” Id.
    A trial court is not required, as a matter of law, to grant the writ or conduct an inquiry
    into the allegations contained in the petition. T.C.A. § 29-21-109 (2010). If the petition fails
    on its face to state a cognizable claim, it may be summarily dismissed by the trial court. State
    ex. Rel. Byrd v. Bomar, 
    381 S.W.2d 280
    , 283 (Tenn. 1964); see also T.C.A. § 29-21-109
    (2010). “If from the showing of the petitioner, the plaintiff would not be entitled to any
    relief, the writ may be refused.” T.C.A. § 29-21-109 (2010).
    Notably, in the petitioner’s brief on appeal, he asserts, “This is Appellant’s first
    application for a writ of habeas corpus attacking the [unauthorization] of the amended plea
    agreement that the Appellant entered into on December 7, 1994, and this issue has not been
    raised in a prior proceeding before, which gives this court jurisdiction. . . .” Our opinion on
    his third petition for habeas corpus relief seemingly belies this assertion. In that opinion, we
    concluded:
    The petitioner argued in his amended petition that the trial court’s
    amendment of the judgments directly contravened Tennessee Code Annotated
    section 40-35-211 (2006), dealing with the imposition of sentences. He
    claimed that “25.8 years [twenty-five years, eight months] is not available
    under the 1989 Act. T.C.A. § 40-35-211 provides for years or months, not
    years and months. Therefore, 25.8 years for a felony is an illegal sentence.”
    Again, however, the petitioner has not supported this claim with argument in
    his appeal and has thus waived this issue. Even were we to reach the merits
    of this issue, we could not conclude that this assertion constitutes a cognizable
    claim for habeas corpus relief. We can discern no reason why the legislature
    would require that the length of a felony sentence be expressed in either
    months or years, but not both. The petitioner offers us no reason why the
    legislature would intend such an unorthodox, formalistic construction.
    Finally, the petitioner argues that the trial court erred by summarily
    dismissing his petition without appointing counsel or holding an evidentiary
    hearing. Tennessee Code Annotated section 29-21-109 (2006) provides: “If,
    from the showing of the petitioner, the plaintiff would not be entitled to any
    relief, the writ [of habeas corpus] may be refused, the reasons for such refusal
    being briefly endorsed upon the petition, or appended thereto.” Our supreme
    court has held that “when a habeas corpus petition fails to establish that a
    judgment is void, a trial court may dismiss the petition without a hearing.”
    Summers v. State, 
    212 S.W.3d 251
    , 260 (Tenn. 2007) (citations omitted). An
    indigent petitioner does not have a constitutional right to counsel in a habeas
    corpus proceeding unless the trial court determines that counsel is “necessary”
    under Tennessee Code Annotated section 40-14-204. Summers, 212 S.W.3d
    at 261. Appointment of counsel is not necessary merely because a petition
    states a cognizable claim for habeas corpus relief. Id.
    The amended petition asserted that the petitioner’s sentence was illegal
    because (1) the second degree murder sentence exceeded the maximum for a
    Range I offender; (2) the trial court exceeded its authority by amending the
    judgment from thirty years as a Range I offender to twenty-five years, eight
    months as a Range II offender; and (3) a sentence including a term of both
    years and months is impermissible under Tennessee Code Annotated section
    40-35-211. None of these claims are meritorious. Therefore, summary
    dismissal of the petition was appropriate, as we will explain.
    Previous portions of this opinion have considered and rejected the first
    and third of these claims. As for the second claim, a judgment becomes final
    thirty days after entry, after which time the trial court generally may not amend
    it. State v. Moore, 
    814 S.W.2d 381
    , 382 (Tenn. Crim. App. 1991); see Tenn.
    R. App. P. 4(a), (c) (2007). The record reflects that the trial court amended the
    judgment within one week of the entry of the original. Therefore, the trial
    court had jurisdiction to make the amendment. Further, any potential error in
    the amendment process did not prejudice the petitioner. As noted earlier, the
    amendment did not materially change the petitioner’s release eligibility; any
    error was therefore harmless. See Tenn. R. App. P. 36(b) (2007) (“A final
    judgment from which relief is available and otherwise appropriate shall not be
    set aside unless, considering the whole record, error involving a substantial
    right more probably than not affected the judgment or would result in
    prejudice to the judicial process.”). The petitioner did not present a cognizable
    claim for habeas corpus relief in his petition, and the trial court was within its
    authority to dismiss the petition without appointing counsel or conducting a
    hearing.
    Johnson v. Brandon, 
    2007 WL 3275274
    , at **4-5.
    In the appeal currently before us, the petitioner asserts his sentence was illegal and
    void because “the trial courts [sic] sentencing judgment imposing Life and 25.8 years at 35%
    Range II on the Appellant, was in direct contravention to the jurisdictional authority of the
    court and second, this was not the plea agreement the appellant entered into with the attorney
    general on December 7, 1994.” He further asserts that “plain error” exists because the trial
    court imposed a longer sentence than the sentence contemplated by the plea agreement. We
    conclude that, while the petitioner attempts to couch these arguments in new terms, this court
    has previously determined the issues the petitioner presents. Because we have concluded that
    this issue was previously determined on direct appeal, we affirm the habeas corpus court’s
    dismissal of the petition. See Milburn L. Edwards v. State, No. M2010-02001-CCA-R3-HC,
    
    2011 WL 3480994
    , at *1 (Tenn. Crim. App. at Nashville, Aug. 5, 2011), perm. app. denied
    (Tenn. Dec. 14, 2011). The petitioner is not entitled to relief on this issue.
    Conclusion
    Based upon the foregoing, the denial of habeas corpus relief is affirmed.
    _________________________________
    JOHN EVERETT WILLIAMS, JUDGE
    

Document Info

Docket Number: M2011-00945-CCA-R3-HC

Judges: Judge John Everett Williams

Filed Date: 2/27/2012

Precedential Status: Precedential

Modified Date: 10/30/2014