Bobby Lee Scales Jr. v. Dwight Barbee, Warden ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 7, 2012
BOBBY LEE SCALES, JR. v. DWIGHT BARBEE, WARDEN
Direct Appeal from the Circuit Court for Lauderdale County
No. 6534 Joseph H. Walker, Judge
No. W2012-00163-CCA-R3-HC - Filed September 12, 2012
Petitioner, Bobby Lee Scales, Jr., filed a pro se petition for habeas corpus relief attacking two
convictions of theft in Davidson County and one conviction of theft in Williamson County.
The habeas corpus trial court dismissed the petition without an evidentiary hearing, and
Petitioner appeals. After a thorough review of the record and the briefs, we affirm the
judgment of the habeas corpus trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
T HOMAS T. W OODALL, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and R OGER A. P AGE, JJ., joined.
Bobby Lee Scales, Jr., Henning, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; and D. Michael Dunavant, District Attorney General, for the appellee, State of
Tennessee.
OPINION
On July 1, 2010, Petitioner pled guilty in the Davidson County Criminal Court to
Class D felony theft in case number 2010-A-50 and received a sentence of three years as a
Range III persistent offender. On the same date, he pled guilty to a separate Class D felony
theft in Davidson County in case number 2010-A-1334 and received a sentence of five years
as a Range III persistent offender. The judgments ordered these two sentences to be served
consecutively to each other, for an effective sentence of eight years. On October 4, 2010,
Petitioner pled guilty in Williamson County Circuit Court to another Class D felony theft in
case number II-CR054928 and received a sentence of five years as a Range II multiple
offender. The Williamson County sentence was ordered to be served concurrently with the
effective sentence of eight years in Davidson County cases numbered 2010-A-50 and 2010-
A-1334.
Copies of all three judgments were attached to the petition. There is nothing on the
face of the judgments to indicate that the concurrent sentencing violated any law mandating
consecutive sentencing. The only indictment attached by Petitioner was the indictment in
Davidson County case number 2010-A-1334. The pertinent language of that indictment
charges that Petitioner and his co-defendant,
on the 6th day of March, 2010, in Davidson County, Tennessee and before
the finding of this indictment, knowingly, did obtain or exercise control
over certain property, to wit: I-pods, of the value of $1,000 or more but less
than $10,000, the property of Electronic Express, without the effective
consent of Electronic Express with the intent to deprive Electronic Express
of the property, in violation of Tennessee Code Annotated § 39-14-103 and
against the peace and dignity of the State of Tennessee.
The indictment was returned by the Davidson County Grand Jury on May 28, 2010.
Petitioner also attached to his petition an unsigned copy of the affidavit of complaint/arrest
warrant for the March 6, 2010 theft from Electronic Express. This document has a printed
date of March 17, 2010, with printed names of the affiant and the judicial commissioner. All
it lacks is the signatures of these individuals. Nevertheless, the copy of the indictment shows
that it was properly filed after being signed by the District Attorney General and the Grand
Jury Foreperson. Any defects in an arrest warrant as to the criminal proceedings are cured
by issuance of an indictment. See Danny Ray Meeks v. State, No. 01C01-9709-CC-00387,
1998 WL 748676, at *2 (Tenn. Crim. App. Oct. 23, 1998), perm. app. denied, (Tenn. May
10, 1999); see e.g. State v. Campbell, 641 S.W.2d 890, 893 (Tenn. 1982). From what we
discern from the record, the copy of the affidavit of complaint/arrest warrant could have been
computer generated with the original document properly signed by the affiant and the judicial
commissioner. After the briefs were filed in this matter, Petitioner filed a document entitled
“Motion to Affirm that the Arrest Warrant was an unsigned Warrant and was Never Valid.”
Petitioner did not sign the motion in the presence of a notary public or any other official
authorized to administer an oath, but he did self-verify the motion by signing below a
statement which says, “I hereby verify by oath under penalty of perjury that the foregoing is
true and correct to the best of my information, knowledge, and belief.” Among the
allegations in the motion is the following: “I hereby affirm that the complaint and arrest
warrant was both unsigned and based on unsigned complaint and as such was facially void
and invalid.” To the extent the motion seeks to present facts for the first time on appeal, it
could not be granted. Tenn. R. App. P. 36(a); Butler v. State, 789 S.W.2d 898, 902 (Tenn.
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1990); Erika Louise Bunkley Patrick v. State, W2004-02217-CCA-R3-PC, 2006 WL 211824,
at *10 (Tenn. Crim. App. Jan. 24, 2006), no perm. app. filed. In any event, as noted above,
issuance of the indictment cured any defect in the arrest warrant.
Whether the petitioner is entitled to habeas corpus relief is a question of law.
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007); Hart v. State, 21 S.W.3d 901, 903
(Tenn. 2000). As such our review is de novo with no presumption of correctness given to
the trial court’s findings and conclusions. Id.
It is well-established in Tennessee that the remedy provided by a writ of habeas corpus
is limited in scope and may only be invoked where the judgment is void or the petitioner’s
term of imprisonment has expired. Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007);
State v. Ritchie, 20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport, 980 S.W.2d 407, 409
(Tenn. Crim App. 1998). A void, as opposed to a voidable, judgment is “one that is facially
invalid because the court did not have the statutory authority to render such judgment.”
Summers, 212 S.W.3d at 256 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)).
A petitioner bears the burden of establishing a void judgment or illegal confinement by a
preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).
Furthermore, when “a habeas corpus petition fails to establish that a judgment is void, a trial
court may dismiss the petition without a hearing.” Summers, 212 S.W.3d at 260 (citing
Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005)).
On appeal Petitioner asserts the indictment in Davidson County Criminal Court case
number 2010-A-1334 is defective because the indictment failed to allege the essential
element of “unlawfully.” Petitioner is not entitled to relief on this issue. This Court has
previously held that an indictment’s failure to allege that the charged offense occurred
“unlawfully” does not make the indictment defective. See Jerry D. Carney v. David Mills,
Warden, No. W2004-01563-CCA-R3-HC, 2004 WL 2756052, at *4 (Tenn. Crim. App. Dec.
2, 2004) no perm. app. filed.
Petitioner also argues that the Tennessee Department of Correction unlawfully voided
the action of the Tennessee Board of Parole to “parole” Petitioner on his sentence of three
years prior to the beginning of his consecutive sentence of five years. Issues concerning the
Department of Correction’s calculation of parole eligibility are not cognizable in a habeas
corpus proceeding. See John Willie Partee v. Fortner, No. M2007-01724-CCA-R3-HC,
2008 WL 1805757, at *2 (Tenn. Crim. App. April 22, 2008), no perm. app. filed. Petitioner
candidly acknowledges in his brief that the Tennessee Department of Correction “turned the
sentence in[to] an effective sentence of eight years.” That is exactly the sentence imposed
by the judgments attacked in the habeas corpus proceeding. Petitioner is not entitled to relief
on this issue.
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CONCLUSION
Having determined that Petitioner is not entitled to relief on the issues presented in
this appeal, we affirm the judgment of the habeas corpus trial court.
_________________________________________
THOMAS T. WOODALL, JUDGE
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