Ronald A. Barker v. Tony Parker, Warden ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 3, 2010
RONALD A. BARKER v. TONY PARKER, WARDEN
Appeal from the Circuit Court for Lake County
No. 10-CR-9454 R. Lee Moore, Jr., Judge
No. W2010-00881-CCA-R3-HC - Filed September 9, 2010
The petitioner, Ronald A. Barker, appeals from the habeas corpus court’s summary dismissal
of his petition for writ of habeas corpus. Discerning no error, we affirm the judgment of the
habeas corpus court.
Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and J.C. M CL IN, JJ., joined.
Ronald A. Barker, Tiptonville, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; and Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.
OPINION
On April 1, 2004, a Sullivan County jury convicted the petitioner of possession
of morphine for sale or delivery, a Class C felony (“Count One”); possession of
dihydrocodone, a Class D felony (“Count Two”); possession of alprazolam for sale or
delivery, a Class D felony (“Count Three”); and possession of .5 ounces or more of
marijuana for sale or delivery, a Class E felony (“Count Four”). Following his conviction,
the petitioner, who was free on bond until sentencing, fled the jurisdiction. In his absence,
the trial court held a sentencing hearing. The trial court entered four judgments of conviction
on June 25, 2004. The trial court ordered nine years’ incarceration for Count One with no
instructions on consecutive or concurrent sentencing. It ordered seven years’ incarceration
for Count Two with instructions that it run consecutively to “Ct 2.” The trial court ordered
seven and three year sentences for Counts Three and Four, respectively, and ordered both to
run concurrently to each other and Count One but consecutively to Count Two. Because
Count Two’s running consecutively to itself has no effect on the sentence, the total sentence
amounted to an effective 14 years’ incarceration.
The petitioner was arrested in Florida in 2005 and extradited to Tennessee.
The trial court then amended the four judgments of conviction on May 9, 2006, to reflect that
the defendant was not in custody until April 18, 2006.1 On August 4, 2006, the trial court
filed amended judgment forms for Counts One and Two. The amended judgments ordered
that Count One be served consecutively to Count Two, and the trial court removed the
instruction that Count Two be served consecutively to itself. Thus, by running the nine-year
sentence for Count One consecutively to the seven-year sentence for Count Two, the trial
court’s amended judgments created an effective 16-year sentence.
The petitioner filed a pro se petition for post-conviction relief on January 2,
2007, in which he
attacked the validity of his initial arrest and the validity of the
arrest warrants and presentments giving rise to the action. The
petitioner also claimed that the evidence used against him at trial
was illegally obtained, that the prosecution withheld exculpatory
evidence, that the evidence used at trial was insufficient to
support his convictions, and that he received the ineffective
assistance of counsel.
Ronald A. Barker a/k/a George N. Bailey v. State, No. E2007-00195-CCA-R3-PC, slip op.
at 3 (Tenn. Crim. App., Knoxville, Feb. 19, 2008). The post-conviction court dismissed his
petition as untimely because it was filed more than one year from the June 2004 judgments.
The post-conviction court also determined that the 2006 amended judgments did not toll the
running of the one-year statute of limitation for the post-conviction petition. Id. The
defendant appealed to this court, and we affirmed. As to the petitioner’s argument that the
2006 amended judgments extended his time to file a petition for post-conviction relief, this
court noted,
Regarding the amended judgments, the trial court
stated that it entered the judgments pursuant to Rule 36 of the
Tennessee Rules of Criminal Procedure, which gives the trial
1
The trial court apparently included this explanation to clarify an issue of pretrial jail credits with
the Department of Correction. Ronald A. Barker a/k/a George N. Bailey v. State, No.
E2007-00195-CCA-R3-PC, slip op. at 2-3 (Tenn. Crim. App., Knoxville, Feb. 19, 2008).
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court jurisdiction to correct a clerical error in a judgment after
it has become final. However, this court has previously noted
that changes under this rule may only be made where “the
judgment entered omitted a potion [sic] of the judgment of the
court or that the judgment was erroneously entered . . . . In the
absence of these supporting facts, a judgment may not be
entered under the clerical error rule after it has become final.”
State v. Jack Lee Thomas, Jr., No. 03C01-9504-CR-00109, 1995
WL 676396, at *1 (Tenn. Crim. App. at Knoxville, Nov. 15,
1995). In this case, the record reflects, and the trial court
correctly stated, that there were no errors in the judgments as
they were originally entered. Thus, the 2006 amended
judgments were entered in error and are void, as they were
beyond the jurisdiction of the trial court. See Brown v. Brown,
198 Tenn. 600, 281 S.W.2d 492, 497 (1955). Because these
amended judgments were a nullity, they did not start anew the
time for filing a post-conviction petition. Applying the statute
of limitations established in Tennessee Code Annotated section
40-30-102(a), the petitioner had until July 21, 2005, to file his
petition. His petition was filed after this date and was, provided
no exception applies, time-barred.
Id. at 4.
The petitioner also filed a petition for declaratory judgment. As explained by
the habeas corpus court,
The exhibits reflect that the petitioner later filed a Petition for
Declaratory Judgment with the Tennessee Department of
Corrections to clarify or correct any deficiencies in the
judgments. Petitioner attaches a copy of a judgment reflecting
Case No. S47936, count one, in which the defendant was
convicted of possession of morphine for sell or delivery with a
date of entry of the judgment being December 17, 2008. This
judgment reflects that there was a plea of guilty, but also that
there was a jury verdict of guilty. The sentence was nine years
as a Multiple Range II offender. This judgment reflects that the
sentence was to run consecutive to the sentence in count two of
this case. Thereafter, the petitioner filed a lawsuit in Chancery
Court for Davidson County challenging the sentence calculation
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of the Tennessee Department of Corrections. An order was
entered by Chancellor Claudia Bonnyman on March 12, 2010,
granting a Motion for Summary Judgement filed on behalf of
the Tennessee Department of Corrections confirming the
sentencing.
Perhaps importantly, the record reflects that the December 17, 2008 judgment reflecting
consecutive sentences was a “corrected” judgment.
In his habeas corpus petition, the petitioner alleged that he was being held on
the 2006 amended judgments, which this court declared void in his appeal of the denial of
his petition for post-conviction relief. The court summarily dismissed the petition for writ
of habeas corpus relief, ruling that “[t]he sentences in this case are not void and have not
expired.”
The petitioner appeals, arguing that because this court declared the 2006
amended judgments void in his post-conviction appeal, the subsequent 2008 judgment
correction ordering consecutive sentencing must also be void.
“The determination of whether habeas corpus relief should be granted is a
question of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State,
21 S.W.3d 901, 903 (Tenn. 2000)). Our review of the habeas corpus court’s decision is,
therefore, “de novo with no presumption of correctness afforded to the [habeas corpus]
court.” Id. (citing Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d 406, 408 (Tenn.
2006)).
The writ of habeas corpus is constitutionally guaranteed, see U.S. Const. art.
1, § 9, cl. 2; Tenn. Const. art. I, § 15, but has been regulated by statute for more than a
century, see Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968). Tennessee Code Annotated
section 29-21-101 provides that “[a]ny person imprisoned or restrained of liberty, under any
pretense whatsoever, except in cases specified in § 29-21-102, may prosecute a writ of
habeas corpus, to inquire into the cause of such imprisonment and restraint.” T.C.A. §
29-21-101 (2000). Despite the broad wording of the statute, a writ of habeas corpus may be
granted only when the petitioner has established a 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, 432 S.W.2d at 658; State v. Galloway, 45 Tenn. (5 Cold.) 326(1868). The purpose of the state habeas corpus petition is to contest a void, not merely a
voidable, judgment. State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968).
A void conviction is one which strikes at the jurisdictional integrity of the trial court. Archer
v. State, 851 S.W.2d 157, 164 (Tenn. 1993); see State ex rel. Anglin v. Mitchell, 575 S.W.2d
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284, 287 (Tenn. 1979); Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).
In addition to the various procedural requirements for the prosecution of a
petition for writ of habeas corpus contained in the Code, see generally T.C.A. §§ 29-21-105
to -112, our supreme court has held that “[t]he petitioner bears the burden of providing an
adequate record for summary review of the habeas corpus petition.” Summers v. State, 212
S.W.3d 251, 261 (Tenn. 2007). “In the case of an illegal sentence claim based on facts not
apparent from the face of the judgment, an adequate record for summary review must include
pertinent documents to support those factual assertions.” Id. When a petitioner fails to
attach to his petition sufficient documentation supporting his claim of sentence illegality, the
habeas corpus court may summarily dismiss the petition. Id.First, we note that the original judgments are not void. Although the 2004
judgment for Count Two contains an erroneous instruction that the sentence run
consecutively to itself, this error does not render the judgment, or the judgments for the other
counts, void. Despite this court’s declaration that the 2006 amended judgments were void,
the trial court acted within its jurisdiction in filing the 2008 corrected judgment ordering that
Count One run consecutively to Count Two. See Tenn. R. Crim. P. 36 (clerical mistakes in
judgments are correctable at any time). The petitioner argues that, because the 2006
judgments were declared void by this court, it must necessarily follow that the trial court was
without jurisdiction to enter the 2008 corrected judgment; however, the judgments on which
the petition is incarcerated are the 2004 judgments for all counts, which this court has
declared legal, as corrected by the 2008 judgment for Count One, which we now declare
legal on the basis that the original judgments evinced an ambiguity that warranted Rule 36
correction. Because the defendant cannot show that these judgments are void, we affirm the
trial court’s summary dismissal of his petition for writ of habeas corpus.
We also note that the defendant argues in his brief that the 2008 corrected
judgment illegally deprived him of pretrial jail credits. However, as the State notes in its
brief, the petitioner received full credit for his pretrial jail credit on his 2004 judgments. The
trial court correctly omitted any credit for Count One in the 2008 corrected judgment
ordering the sentence to run consecutively to Counts Two, Three, and Four, which already
accounted for the pretrial credit.
Because nothing in the petition for writ of habeas corpus shows that the
petitioner is being held in custody based on void judgments, we affirm the habeas corpus
court’s summary dismissal of his petition.
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_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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