Shawn Rafael Bough v. Jim Morrow, Warden ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
SHAWN RAFAEL BOUGH v. JIM MORROW, WARDEN
Appeal from the Circuit Court for Bledsoe County
No. 2010-CR-13 Thomas W. Graham, Judge
No. E2010-01194-CCA-R3-HC - Filed May 24, 2011
The Petitioner, Shawn Rafael Bough, appeals from the Bledsoe County Circuit Court’s
dismissal of his petition for habeas corpus relief. The State of Tennessee has moved to have
this court summarily affirm the dismissal pursuant to Rule 20 of the Rules of the Court of
Criminal Appeals. We grant the motion and affirm the order of dismissal pursuant to Rule
20.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
Pursuant to Rule 20, Rules of the Court of Criminal Appeals
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R. and N ORMA M CG EE O GLE, J.J., joined.
Shawn Rafael Bough, appellant, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; and Clarence E. Lutz, Assistant
Attorney General, for the appellee, State of Tennessee.
MEMORANDUM OPINION
The Petitioner filed a pro se petition for writ of habeas corpus challenging his two
concurrent sentences of life imprisonment with the possibility of parole and twenty-one years
that he received from the Knox County Criminal Court in case number 68041A on one count
of first degree felony murder and one count of especially aggravated robbery. In his petition,
the Petitioner claimed that the trial court constructively amended the indictment after
jeopardy had attached by way of the instructions given to the jury and without the Petitioner’s
consent. Specifically, the Petitioner argued that the trial court incorrectly instructed the jury
that the underlying felony on the first degree felony murder charge was especially aggravated
robbery, rather than simple robbery as charged in the indictment. Attached to the petition
included in the record were: (a) the indictment charging the Petitioner with one count of first
degree premeditated murder, first degree felony murder and especially aggravated robbery;
(b) the transcript of the jury instructions from the Petitioner’s trial; (c) a Uniform Civil
Affidavit of Indigency; and (d) the transcript from the Petitioner’s sentencing hearing.
Absent from the attachments to the petition were copies of the challenged judgments.
After the record was filed in this appeal, but before the Petitioner filed his principal
brief, he filed a motion to supplement the record with Exhibit C to the petition filed in the
trial court. The Petitioner represented in his motion to supplement that Exhibit C consisted
of the challenged judgments entered in Knox County Criminal Court case number 68041A.
This court granted the Petitioner’s motion to supplement the record. The supplement to the
record transmitted pursuant to this court’s order contained Exhibit C to the petition, which
did not consist of the challenged judgments as represented by the Petitioner in the motion
filed with this court. After the supplement to the record was filed, this court received a
motion to supplement the record intended by the Petitioner to be filed with the trial court.
Attached to this motion to supplement were copies of the challenged judgments.
The trial court dismissed the petition for writ of habeas corpus on grounds that the
challenged judgments were not attached to the petition as required by Tennessee Code
Annotated section 29-21-107(b)(2). The trial court alternatively ruled that the Petitioner’s
claim, even if proven, would render his convictions merely voidable, not void as required for
habeas corpus relief.
Habeas corpus relief is available in Tennessee only when it appears upon the face of
the judgment or 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. Edwards v. State, 269
S.W.3d 915, 920 (Tenn. 2008); Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007); Archer
v. State, 851 S.W.2d 157, 164 (Tenn. 1993). The procedures applicable to seeking the writ
are codified at Tennessee Code Annotated section 29-21-101 et seq. These procedures “ ‘are
mandatory and must be followed scrupulously.’ ” Summers, 212 S.W.3d at 259 (quoting
Archer, 851 S.W.2d at 165). A trial court properly may choose to summarily dismiss a
petition without the appointment of counsel and without a hearing when a petitioner has
failed to comply with the statutory procedural requirements. See Faulkner v. State, 226
S.W.3d 358, 365 (Tenn. 2007); Summers, 212 S.W.3d at 260-61. One of the statutory
requirements for seeking habeas corpus relief is that the petitioner must annex to the petition
a copy or copies of the judgment or judgments at issue. See Tenn. Code Ann. § 29-21-
107(b)(2).
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Because the Petitioner failed to attach to his petition copies of the challenged
judgments, we conclude that the State’s motion for summary affirmance is well-taken. We
note that the Petitioner provided this court with copies of the challenged judgments during
the course of this appeal. However, as previously noted, these copies of the judgment were
never made a part of the record of the proceedings below. “We decide cases and
controversies on the basis of the record as presented to us for our consideration, and not as
they might, or should, have been presented.” Dearborne v. State, 575 S.W.2d 259, 264
(Tenn. 1978).
In addition, as the trial court alternatively concluded, the Petitioner’s claim, even if
proven, would not entitle him to habeas corpus relief. See, e.g., Bobby A. Davis v. Howard
Carlton, Warden, No. E2007-01279-CCA-R3-HC, slip op. at 5 (Tenn. Crim. App., Knoxville,
Feb. 4, 2008), perm. to appeal denied (Tenn. Apr. 28, 2008) (rejecting claim that trial court
“constructively amended . . . indictment by its instructions to the jury” on grounds that “[t]his
court has repeatedly found that erroneous jury instructions do not form the basis for habeas
corpus relief”). As this court also concluded in the opinion affirming the denial of post-
conviction relief in the Petitioner’s case, “the petitioner was not prejudiced by the trial
court’s instructing the jury on the greater offense” as the underlying felony on the felony
murder count. Shawn Rafael Bough v. State, No. E2007-00475-CCA-R3-PC, slip op. at 9
(Tenn. Crim. App., Knoxville, Oct. 18, 2007), perm. to appeal denied (Tenn. Feb. 25, 2008).
Accordingly, we GRANT the State’s motion for summary affirmance and the trial
court’s order dismissing the petition for writ of habeas corpus is AFFIRMED pursuant to
Rule 20 of the Rules of the Court of Criminal Appeals.
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JOSEPH M. TIPTON, PRESIDING JUDGE
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