Bobby L.Crum v. State ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1999 SESSION
July 15, 1999
Cecil W. Crowson
Appellate Court Clerk
BOBBY L. CRUM, )
) NO. 01C01-9810-CR-00432
Appellant, )
) DAVIDSON COUNTY
VS. )
) HON. STEVE R. DOZIER,
FLORA J. HOLLAND, Warden, ) JUDGE
)
Appellee. ) (Habeas Corpus)
FOR THE APPELLANT: FOR THE APPELLEE:
BOBBY L. CRUM, Pro Se MICHAEL E. MOORE
#00095044 Solicitor General
Special Needs Facility
7575 Cockrill Bend Industrial Rd. LUCIAN D. GEISE
Nashville, TN 37209-1057 Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
VICTOR S. JOHNSON III
District Attorney General
JON P. SEABORG
Assistant District Attorney General
Washington Square
222-2nd Avenue North, Suite 500
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED - RULE 20
JOE G. RILEY,
JUDGE
ORDER
Appellant, BOBBY L. CRUM, appeals the trial court's summary dismissal of
his petition for writ of habeas corpus. Appellant asserts his 1981 conviction and life
sentence for aggravated kidnapping are void since this Court did not affirm the
conviction until July 22, 1982, and the Criminal Sentencing Reform Act of 1982
(effective July 1, 1982) would significantly reduce his sentence for this particular
offense. Thus, he asserts he is entitled to be resentenced under the 1982 Act. We
disagree.
Appellant was arrested and charged with aggravated kidnapping in March
1980, was convicted of that charge in December 1981, and was sentenced in
January 1982. He alleges that he should be resentenced under the 1982
Sentencing Act since his conviction was not affirmed by this Court until July 22,
1982.
"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). If an appellant fails
to meet this threshold requirement, the trial court need not conduct a hearing and
may summarily dismiss the petition for writ of habeas corpus. Tenn. Code Ann. §
29-21-109.
Appellant cites Tenn. Code Ann. § 39-11-112 (1997) in support of his
argument for the more favorable sentencing provisions of the 1982 Reform Act:
"[e]xcept as provided under the provisions of § 40-35-
117, in the event the subsequent act provides for a
lesser penalty, any punishment imposed shall be in
accordance with the subsequent act." (Emphasis
added by appellant).
2
However, appellant blatantly fails to acknowledge the provisions of Tenn. Code Ann.
§ 40-35-117(c) (1997) which provides:
"[f]or all persons who committed crimes prior to July 1,
1982, prior law shall apply and remain in full force and
effect in every respect, including, but not limited to
sentencing, parole and probation." (Emphasis added).
Appellant seeks to be sentenced under the 1982 Sentencing Act; however,
that Act specifically states that “[f]or all persons who committed crimes prior to July
1, 1982, the prior law shall remain in full force and effect in every respect, including
but not limited to sentencing, parole and probation.” Tenn. Code Ann. 40-35-112(a)
(1982)(emphasis added). The fact that the conviction was not affirmed by this Court
until July 22, 1982, is irrelevant since the 1982 Sentencing Act does not apply to
crimes committed prior to July 1, 1982. Id.
Furthermore, the fact that subsequent legislation provides for a lesser penalty
than that received under prior legislation neither implicates nor violates any of
appellant’s constitutional rights. See State ex rel. Steward v. McWherter, 857
S.W.2d 875, 876 (Tenn. Crim. App. 1992); State ex rel. Bobby L. Crum v. Ned
McWherter, C.C.A. No. 02C01-9108-CC-00181, Lake County (Tenn. Crim. App.
filed May 13, 1992, at Jackson). 1
Based upon the foregoing, the judgment of the trial court is AFFIRMED
pursuant to Rule 20, Tennessee Court of Criminal Appeals. 2 It appearing that the
appellant is indigent, costs shall be taxed to the state.
So ordered. Enter:
1
In this 1992 case, the same appellant contended in a habeas corpus petition that he
should be resentenced under the 1989 Sentencing Act. That argument was also rejected by this
Court.
2
Appellant also assigns as error the trial court’s dismissal of his petition for failure to
include a copy of the “legal process” upon which his restraint is based. See Tenn. Code Ann. 29-
21-107(b)(2). We note no satisfactory reason for its absence. This failure operates as another
valid reason for dismissal of appellant’s petition without an evidentiary hearing. State ex rel.
Wood v. Johnson, 393 S.W.2d 135, 136 (Tenn. 1965).
3
____________________________
JOE G. RILEY, JUDGE
CONCUR:
___________________________
JOSEPH M. TIPTON, JUDGE
____________________________
ALAN E. GLENN, JUDGE
4