Adrian Delk v. Grady Perry, Warden ( 2017 )

11/30/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs March 7, 2017
ADRIAN DELK v. GRADY PERRY, WARDEN
Appeal from the Circuit Court for Hardeman County
No. 2016-CR-105 Joe H. Walker III, Judge
___________________________________
No. W2016-01394-CCA-R3-HC
___________________________________
Petitioner, Adrian Delk, appeals the dismissal of his petition for writ of habeas corpus.
On appeal, Petitioner asserts that the State breached the plea agreement by choosing an
incorrect range of offense dates for the judgment for solicitation to commit first degree
murder; that the State’s error resulted in a breach of the plea agreement because it
affected Petitioner’s sentencing credit; that the Department of Correction was not
properly awarding post-judgment sentencing credits; that there was insufficient proof to
support the conviction for solicitation; and that Petitioner’s indictment for solicitation
was void because it was returned prior to the completion of the crime and failed to
provide notice. After a review, we affirm the summary dismissal of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.
Adrian Delk, Whiteville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel
for the appellee, State of Tennessee.
OPINION
Procedural History
According to the scant record on appeal, Petitioner was indicted in 2013 by the
Shelby County Grand Jury for one count of attempted second degree murder and two
counts of aggravated assault. The charges stemmed from a knife-attack on the mother of
Petitioner’s child. See Adrian Delk v. State, No. W2015-01246-CCA-R3-PC, 2016 WL
4189718, at *1-2 (Tenn. Crim. App. Aug. 5, 2016), perm. app. denied (Tenn. Oct. 21,
2016). Three months after the original indictment, the Shelby County Grand Jury
returned a second indictment charging Petitioner with solicitation to commit first degree
murder based on information that Petitioner attempted to hire someone to kill the mother
of his child while he was incarcerated on the original indictment. Id.
Petitioner pled guilty to aggravated assault and solicitation to commit first degree
murder in exchange for sentences of four years and eight years, respectively. The
sentences were ordered to be served consecutively, for a total effective sentence of twelve
years as a Range I, standard offender. The remaining counts of the indictments were
nolle prossed.
After entering the guilty plea, Petitioner sought post-conviction relief and error
coram nobis relief. Id. This Court affirmed the denial of relief but noted that Petitioner
argued on appeal that his guilty plea was unknowing and involuntary because the
judgment for solicitation to commit first degree murder listed erroneous code sections 39-
12-202 and 39-13-210. Id. This Court determined that the typographical errors did not
render the pleas involuntary or unknowing but ordered the matter remanded to the trial
court for the entry of a corrected judgment to reflect the proper code sections of 39-12-
102 and 39-13-202. Id.
Petitioner filed the petition for writ of habeas corpus at issue in this appeal during
the pendency of his post-conviction appeal. The circumlocutory petition raises multiple
challenges to his judgments, including but not limited to the following: (1) a complaint
that the plea agreement was breached by the State because the State chose an erroneous
range of offense dates for Petitioner’s judgment for solicitation to commit first degree
murder; (2) a complaint that the State’s error in determining the offense dates resulted in
improper sentencing credits at the Tennessee Department of Correction (“TDOC”); (3) a
complaint that TDOC was improperly awarding post-judgment sentencing credits; (4) a
challenge to the sufficiency of the evidence on the solicitation charge; and (5) a challenge
to the validity of the indictment for solicitation because it was returned prior to
completion of the crime and failed to provide sufficient notice. The trial court summarily
dismissed the petition without a hearing. Petitioner filed a timely notice of appeal.
Analysis
“The determination of whether habeas corpus relief should be granted is a question
of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21
S.W.3d 901, 903 (Tenn. 2000)). Accordingly, our review is de novo without a
presumption of correctness. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing
State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006)).
-2-
A prisoner is guaranteed the right to petition for habeas corpus relief under Article
I, section 15 of the Tennessee Constitution. Tenn. Const. Art. I, § 15; see T.C.A. §§ 29-
21-101 to -130. The grounds upon which a writ of habeas corpus may be issued,
however, are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). “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.” Archer v. State,
851 S.W.2d 157, 164 (Tenn. 1993) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326,
337 (1868)). “[T]he purpose of a habeas corpus petition is to contest void and not merely
voidable judgments.” Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel.
Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968)). A void judgment “is one in
which the judgment is facially invalid because the court lacked jurisdiction or authority to
render the judgment or because the defendant’s sentence has expired.” Taylor, 995
S.W.2d at 83 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998); Archer, 851
S.W.2d at 161-64). However, as the Tennessee Supreme Court stated in Hickman v.
State:
[A] voidable judgment is facially valid and requires the introduction of
proof beyond the face of the record or judgment to establish its invalidity.
Thus, in all cases where a petitioner must introduce proof beyond the
record to establish the invalidity of his conviction, then that conviction by
definition is merely voidable, and a Tennessee Court cannot issue the writ
of habeas corpus under such circumstances.
153 S.W.3d 16, 24 (Tenn. 2004) (internal citations, quotations, and emphasis omitted);
see Summers, 212 S.W.3d at 256. Moreover, it is the petitioner’s burden to demonstrate,
by a preponderance of the evidence, that the judgment is void or that the confinement is
illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). If this burden is met, the
petitioner is entitled to immediate release. State v. Warren, 740 S.W.2d 427, 428 (Tenn.
Crim. App. 1986) (citing Ussery v. Avery, 432 S.W.2d 656, 658 (Tenn. 1968)).
The procedural requirements for habeas corpus relief are mandatory and must be
scrupulously followed. Summers, 212 S.W.3d at 260; Hickman, 153 S.W.3d at 19-20;
Archer, 851 S.W.2d at 165. In order to show that the judgments are void, they must be
attached to the petition. Id. at 261 (“When such documents from the record of the
underlying proceedings are not attached to the habeas corpus petition, a trial court may
properly choose to dismiss the petition without the appointment of counsel and without a
hearing.”). If the habeas corpus court determines from the petitioner’s filings that no
cognizable claim has been stated and that the petitioner is not entitled to relief, the
-3-
petition for writ of habeas corpus may be summarily dismissed. See Hickman, 153
S.W.3d at 20. Further, the habeas corpus court may summarily dismiss the petition
without the appointment of a lawyer and without an evidentiary hearing if there is
nothing on the face of the judgment or the record of the proceedings upon which the
judgment is rendered to indicate that the convictions are void. Passarella v. State, 891
S.W.2d 619, 627 (Tenn. Crim. App. 1994). “The petitioner bears the burden of providing
an adequate record for summary review of the habeas corpus petition, including
consideration of whether counsel should be appointed.” Summers, 212 S.W.3d at 261.
Initially, we point out, as argued by the State, that Petitioner in this case failed to
provide adequate documentation to support his allegations. Specifically, the technical
record does not contain Petitioner’s indictments. Rather, the record merely contains the
cover pages for the indictments. The cover page indicates that the indictment for
solicitation was returned on November 14, 2013. As noted at the plea hearing, the State
alleged that Petitioner solicited the murder of the victim between January 31, 2013 and
October 1, 2013, contrary to Petitioner’s allegation that the indictment alleged the
commission of the crime after the issuance of the indictment. “[S]ummary dismissal [of
a petition for writ of habeas corpus] may be proper when . . . the petitioner fails to attach
to the habeas corpus petition pertinent documents from the record of the underlying
proceedings to support his factual claim.” Summers, 212 S.W.3d at 254. Because the
indictment itself does not appear in the technical record, the trial court properly dismissed
the petition for writ of habeas corpus.
As to his remaining issues, they are not cognizable in a habeas corpus petition.
Petitioner asserts that the State breached the plea agreement. This Court has previously
held that such a claim is not cognizable in a petition for writ of habeas corpus. See
Antonio M. Miller v. Joe Easterling, Warden, No. W2009-02175-CCA-R3-HC, 2010 WL
2787686, at *2 (Tenn. Crim. App. July 15, 2010), no perm. app. filed. Likewise,
Petitioner’s complaint with regard to the calculation of pretrial jail credits is not properly
resolved in a petition for habeas relief. See State v. Brown, 479 S.W.3d 200, 209 (Tenn.
2015). Even if this issue were proper in a habeas proceeding, the record is incomplete as
the record does not contain the corrected judgment about which he complains. Finally,
Petitioner’s challenge to the sufficiency of the evidence is not properly reviewed via a
habeas corpus petition. Gant v. State, 507 S.W.2d 133, 136 (Tenn. Crim. App. 1973). In
any event, Petitioner waived any issue with regard to sufficiency when he entered a guilty
plea. See Beaty v. Neil, 467 S.W.2d 844, 847 (Tenn. Crim. App. 1971). Petitioner has
failed to assert a claim entitling him to habeas corpus relief. We conclude that the habeas
corpus court’s summary dismissal of the petition was proper.
-4-
CONCLUSION
Upon review, we affirm the habeas corpus court’s order dismissing the habeas
corpus petition.
____________________________________________
THOMAS T. WOODALL, PRESIDING JUDGE
-5-