State v. Charles Loveless ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1998 SESSION FILED
CHARLES A. LOVELESS, JR., * C.C.A. # 02C01-9706-CC-00219
Appellant, * LAKE COUNTY
March 30, 1998
VS. * Hon. R. Lee Moore, Jr., Judge
STATE OF TENNESSEE, * (Habeas Corpus)
Cecil Crowson, Jr.
Appellee. *
Appellate C ourt Clerk
For Appellant: For Appellee:
Charles A. Loveless, Jr., Pro Se John Knox Walkup
NWCC Attorney General and Reporter
Route 1, Box 660
Tiptonville, TN 38079 Elizabeth T. Ryan
Assistant Attorney General
425 Fifth Avenue North
Second Floor, Cordell Hull Building
Nashville, TN 37243-0493
C. Phillip Bivens
District Attorney General
P.O. Drawer E
Dyersburg, TN 38024
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The petitioner, Charles A. Loveless, Jr., appeals the trial court's denial
of habeas corpus relief. He contends his sentence has expired and that he should
be released from custody. We disagree and affirm the judgment of the trial court.
Between 1989 and 1991, the petitioner was convicted of escape, theft,
and three counts of grand larceny and received an effective fourteen-year sentence.
In 1992, he was paroled. One year later a parole revocation proceeding was
instituted due to technical violations of the conditions of parole. In 1994, the
petitioner was convicted of twelve counts of forgery and received an effective five-
year sentence;1 all of these state court sentences were ordered to be served
concurrently with a five-year sentence he had received that same year in federal
court.2 On November 1, 1996, the petitioner was released from federal
incarceration and placed in state custody. Once the petitioner was in state custody,
parole was revoked on the fourteen-year sentence. He was ordered to begin
serving his five-year sentence on May 6, 1997.
He argues that since the federal and the state sentences are
concurrent and since he has been released from federal custody, he should be
released from state custody as well. He also argues that the Parole Board did not
have authority to order him to serve the five-year sentence beginning in 1997, when
he had already served it concurrently with his federal sentence.
1
In counts one through four, he received co ncurrent two-year sentences. In counts five
through eight, he received two-year sentences that were co ncurrent with each other but consec utive
to counts one through four. In counts nine through twe lve, he received one-year sentences that were
concurrent with each other but consecutive to the other sentences.
2
The judg me nt for m fo r the f ede ral se nten ce pr ovide s the petitio ner w as to serv e two years in
custod y followed by a three-yea r term o f "superv ised relea se."
2
In this state, a writ of habeas corpus may be granted only when a
petitioner has established lack of jurisdiction for the order of confinement or that he
is otherwise entitled to immediate release because of the expiration of his sentence.
See Ussery v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell,
443 S.W.2d 839 (Tenn. Crim. App. 1969). A "person imprisoned or restrained of his
liberty, under any pretense whatsoever, ... may prosecute a writ of habeas corpus,
to inquire into the cause of such imprisonment...." Tenn. Code Ann. § 29-21-101.
The writ of habeas corpus, however, is available only when it appears on the face of
the judgment or the record that the trial court was without jurisdiction to convict or
sentence the defendant or that the sentence of imprisonment has otherwise expired.
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60,
62 (Tenn. 1992).
In this case, the June 3, 1994, judgment forms authorize an effective
five-year sentence. Even if the petitioner began serving his five-year state sentence
in 1994, as he claims, the sentence would not expire until 1999. Also, the record
indicates the fourteen-year sentence does not expire until 2001. We must agree
with the trial court's determination that the petitioner's sentences have not expired.
The petitioner also complains that the Parole Board acted beyond its
authority by ordering the five-year sentence to be served beginning in 1997. He
complains that he served it concurrently with the federal sentence.
In ordering the sentence to commence in 1997, the Parole Board was
acting under the authority of Tenn. Code Ann. § 40-23-123, which provides, in part,
as follows:
Any prisoner who is convicted in this state of a felony,
committed while on parole from a state prison, jail or
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workhouse, shall serve the remainder of the sentence
under which the prisoner was paroled, or such part of
that sentence, as the board may determine before the
prisoner commences serving the sentence received for
the felony committed while on parole.
Our Rules of Criminal Procedure also provide guidance:
(3) Mandatory Consecutive Sentences.-- ... [W]here the
defendant has additional sentences not yet fully served
as the result of convictions in the same or other court
and the law requires consecutive sentences, the
sentence shall be consecutive whether the judgment
explicitly so orders or not. This rule shall apply to:
(A) [A] sentence for a felony committed while on parole
for a felony.
Tenn. R. Crim. P. 32. Thus, Rule 32 would require that the five-year sentence be
served consecutively to the fourteen-year sentence, whether the judgment form so
orders or not. Id.We decline, however, to rule on the merits of this issue. A challenge
to the propriety of a release eligibility date or questions about parole or sentence
credits have no bearing upon the validity of the convictions. Because the
Department of Correction is an agency of the state government, questions such as
these should be addressed through the Administrative Procedures Act. Tenn. Code
Ann. §§ 4-5-101 to -324. Thereafter, any judicial review must be initiated in the
chancery court. Brigham v. Lack, 755 S.W.2d 469, 471 (Tenn. Crim. App. 1988);
Tenn. Code Ann. § 4-5-323.
Furthermore, the record is incomplete. The judgment forms for the
convictions entered between 1989 and 1991 are not in the record. The transcript of
the 1994 sentencing hearing is not in the record. The burden is always upon the
appealing party to develop a record which conveys a fair, accurate, and complete
account of those proceedings which form the basis of the appeal. Tenn. R. App. P.
13(c); Dearborne v. State, 575 S.W.2d 259 (Tenn. 1978) (order denying petition to
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rehear).
Accordingly, the judgment dismissing the writ of habeas corpus is
affirmed.
________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
Joe B. Jones, Presiding Judge
_____________________________
Jerry L. Smith, Judge
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