Steve G. Hutton v. State of Tennessee, Glen Turner, Warden ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 26, 2005
STEVE G. HUTTON v. STATE OF TENNESSEE,
GLEN TURNER, WARDEN
Appeal from the Circuit Court for Lawrence County
No. 24968 Robert L. Jones, Judge
No. M2005-00585-CCA-R3-HC - Filed December 16, 2005
Over a span of several years, the Petitioner, Steve G. Hutton, was convicted of eight counts of
passing worthless checks, one count of theft, one count of forgery, one additional count of passing
a worthless check, and one count of reckless endangerment. The Petitioner filed a petition for a writ
of habeas corpus, alleging that his continued confinement is illegal. The trial court dismissed the
petition, and we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which THOMAS T. WOODALL and
JAMES CURWOOD WITT , JR., JJ., joined.
Steve G. Hutton, pro se, Whittenville, Tennessee.
Paul G. Summers, Attorney General and Reporter, Brent C. Cherry, Assistant Attorney General, for
the Appellee, State of Tennessee.
OPINION
I. Facts and Procedural History
On January 4, 2000, the Petitioner pled guilty to eight counts of passing worthless checks and
was sentenced to an effective sentence of four years, to be served in the community corrections
program. On April 9, 2001, the Petitioner completed the community corrections program, and he
was placed on probation.
On January 31, 2002, the Petitioner pled guilty to one count of theft and one count of forgery,
and he was sentenced to an effective sentence of six years in community corrections, to be served
consecutively to the sentence he was serving for passing worthless checks. Also, on January 31,
2002, the Petitioner’s probation was revoked and he was again placed in community corrections for
his passing worthless checks convictions.
On October 15, 2002, the Petitioner pled guilty to one count of passing a worthless check and
was sentenced to four years to be served in community corrections, concurrently with his other
sentences.
On June 3, 2003, the Petitioner pled nolo contendere to one count of reckless endangerment
and was sentenced to two years to be served consecutively to his earlier sentences. Also, on June
3, 2003, the Petitioner was removed from community corrections and ordered to serve his remaining
sentences in the Tennessee Department of Correction.
On February 2, 2004, an amended revocation order was executed, evincing that the Petitioner
had been revoked from community corrections and was to serve out his sentence in the Tennessee
Department of Correction.
On December 21, 2004, the Petitioner filed his Petition for Writ of Habeas Corpus, which
was dismissed by the trial court. It is from that judgment that the Petitioner now appeals.
II. Analysis
In his petition for writ of habeas corpus, the Petitioner asserts that his continued confinement
is illegal because: (1) on October 15, 2002, his probation was revoked without a hearing, and he was
transferred to Community Corrections; (2) on June 3, 2003, his sentence to Community Corrections
was revoked without a hearing, and he was ordered to serve out his sentence in the Tennessee
Department of Correction; (3) his guilty pleas are void due to the trial court’s failure to advise him
of his right to a revocation hearing; (4) the trial court sentenced him to ten years when he had agreed
to a sentence of eight years under his plea agreement; (5) the trial court of Lawrence County had no
jurisdiction over the crimes he committed in Davidson County; (6) when the trial court ordered
restitution, it failed to specify the amount to be paid; (7) his sentences are void, because they
simultaneously sentence him to the Tennessee Department of Correction and the Community
Corrections program; and (8) the amended judgement of February 2, 2004, fails to reflect the amount
of jail and community corrections credits he should receive, and therefore “extend” his sentence.
When reviewing a petition for habeas corpus relief, the determination of whether relief
should be granted is a question of law. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000).
Accordingly, our review is de novo with no presumption of correctness given to the findings of the
court below. Id. The grounds upon which a writ of habeas corpus may be issued are very narrow.
McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). A writ of habeas corpus is available only when
it appears from the face of the judgment or record that either the convicting court was without
jurisdiction to convict or sentence the petitioner, or the petitioner’s sentence has expired. Archer v.
State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In other
words, habeas corpus relief may only be sought when the judgment is void, not merely voidable.
Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999).
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The Petitioner’s first contention is that he was removed from probation and transferred to
community corrections without a hearing, and subsequently removed from community corrections
to serve out his sentence in the Tennessee Department of Correction without a hearing. However,
unlike the post-conviction petition, the purpose of the habeas corpus petition is to contest a void, not
merely voidable, judgment. State ex rel. Newsome v. Henderson, 424 S.W.2d 186, 189 (Tenn.
1968). A petitioner cannot collaterally attack a facially valid conviction in a habeas corpus
proceeding. Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992); State ex rel. Holbrook v. Bomar, 364
S.W.2d 887, 888 (Tenn. 1963). We discern nothing in the record that would render the judgment
void on its face, thus, the Petitioner is not entitled to habeas corpus relief based upon this contention.
The Petitioner’s second contention is that his judgments are void because he was not advised
of his right to a revocation hearing. This is not a proper claim for habeas corpus relief because, even
if the claim was true, the allegation would merely render the judgments voidable, not void. See
Keith Hatfield v. David H. Mills, Warden, No.W2004-01566-CCA-R3-HC, 2004 WL 2848372, at
*1 (Tenn. Crim. App., at Jackson, Dec. 10, 2004) no Tenn. R. App. P. 11 application filed.
The Petitioner’s third assertion is that the ten-year sentence imposed by the trial court for
forgery, theft, worthless check, and fraud, on February 2, 2004, is void, because he entered a guilty
plea pursuant to an agreement that he would receive an eight year sentence. Again, as noted above,
a writ of habeas corpus is available only when it appears from the face of the judgment or record that
either the convicting court was without jurisdiction to convict or sentence the petitioner, or the
petitioner’s sentence has expired. Archer, 851 S.W.2d at 164; Potts, 833 S.W.2d at 62. In this
instance, the Petitioner has failed to assert any jurisdictional violation, and he has not asserted that
the sentence has expired, therefore, we see no grounds for relief.
The Petitioner’s fourth contention is that his convictions for forgery, worthless check, theft,
and fraud are void, because he was tried in Lawrence County, but the crimes took place in Davidson
County, thus the Lawrence County court lacked jurisdiction. Although venue is a jurisdictional
matter, this Court has previously held that the issue is waived, if it is raised for the first time on
appeal. See State v. Turner, 919 S.W.2d 346 (Tenn. Crim. App. 1995). Furthermore, this Court has
held that:
Once a criminal defendant has solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights occurring prior
to the entry of the guilty plea. State v. Hodges, 815 S.W.2d 151, 153 (Tenn. 1991).
We believe that a criminal defendant waives his right to challenge venue upon
pleading guilty. Recor v. State, 489 S.W.2d 64, 69 (Tenn. Crim. App. 1972); Weaver
v. State, 4 Tenn. Crim. App. 435, 472 S.W.2d 898, 902 (1971).
Ellis v. Carlton, 986 S.W.2d 600, 602 (Tenn. Crim. App. 1998). Thus, we conclude that the
Petitioner’s guilty plea served to waive any claim he may have had to a jurisdictional deficiency.
Therefore, even if one or more of the Petitioner’s crimes actually took place outside of Lawrence
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County, the Lawrence County Circuit Court had jurisdiction to convict the Defendant upon his pleas
of guilty.
The Petitioner’s fifth contention is that the judgments of January 4, 2000, and October 15,
2002, ordering restitution, are void because they do not state a specific amount to be paid. Even if
the amount of restitution owed is not discernable from the record, this argument is not properly
before the Court. Tennessee Code Annotated section 29-21-101 (2000) provides that “[a]ny person
imprisoned or restrained of liberty, under any pretense whatsoever, . . . may prosecute a writ of
habeas corpus . . . .” The Tennessee Supreme Court has held that “a person is not ‘restrained of
liberty’ for purposes of the habeas corpus statute unless the challenged judgment itself imposes a
restraint upon the petitioner’s freedom of action or movement.” Hickman v. State, 153 S.W.3d 16,
23 (Tenn. 2004). In Hickman, the court explained that “when the restraint on a petitioner’s liberty
is merely a collateral consequence of the challenged judgment, habeas corpus is not an appropriate
avenue for seeking relief.” Id. Because, in this case, the Petitioner’s claims regard monetary
restitution, and not a restraint of liberty, the Petitioner’s claims regarding restitution are not proper
grounds for habeas corpus relief. See Tenn. Code Ann. § 29-21-101; Hickman, 153 S.W.3d at 23.
The Petitioner’s sixth claim is that the judgments of January 4, 2000, January 31, 2002, and
October 15, 2002, are illegal because they reflect simultaneous sentences of different forms. We
note that the judgment forms for these offenses do in fact reveal that the boxes for “TDOC” and
“Community Based Alternative” were each marked, however, this alone is not enough to render the
judgments void. A writ of habeas corpus is available only when it appears from the face of the
judgment or record that either the convicting court was without jurisdiction to convict or sentence
the petitioner, or the petitioner’s sentence has expired. Archer, 851 S.W.2d at 164; Potts, 833
S.W.2d at 62. In this case, the clerical error is neither a jurisdictional defect, nor is it evidence of
an expired sentence, thus, we hold that the Petitioner is not entitled to relief on this issue.
Finally, the Petitioner contends that his right to due process was violated when the Lawrence
County trial court failed to state the amount of jail and community corrections credit to be applied
to his amended revocation order issued on February 2, 2004. While the trial court’s order does not
specify the amount of time to be applied to the amended revocation order, habeas corpus relief is not
available to a petitioner claiming a deficiency in the calculation of sentence credits. Michael K.
Kennedy v. State, No. M2003-02059-CCA-R3-HC, 2004 WL 2599490, at *2 (Tenn. Crim. App.,
at Nashville, Nov. 12, 2004), no Tenn. R. App. P. 11 application filed; Hancock v. State, No.
01C01-9710-CR-00489, 1998 WL 453682, at *1 (Tenn. Crim. App., at Nashville, July 30, 1998),
perm. to appeal denied (Tenn. Feb. 16, 1999); see also, State v. Warren, 740 S.W.2d 427, 428 (Tenn.
Crim. App. 1986). Even if the Petitioner’s claim of sentence reduction miscalculation had merit, an
habeas corpus proceeding would not be appropriate because “complaints regarding sentence credit
miscalculations that relate to release eligibility short of full service of the sentence do not warrant
habeas corpus relief.” Id. Accordingly, the Petitioner is not entitled to relief on this issue.
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III. Conclusion
In accordance with the foregoing authorities and reasoning, we affirm the trial court’s
judgment.
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ROBERT W. WEDEMEYER, JUDGE
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