Montgomery v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
September 10, 1997
MARCH 1996 SESSION
Cecil Crowson, Jr.
Appellate C ourt Clerk
EUGENE MONTGOMERY )C.C.A. No. 03C01-9507-CC-00189
)
Appellant, ) Carter County
V. )
) Hon. Arden L. Hill, Judge
STATE OF TENNESSEE )
)(Post-Conviction Relief)
Appellee,
FOR THE APPELLANT: FOR THE APPELLEE:
A. James Andrews Charles W. Burson
Attorney at Law Attorney General and
606 W. Main St. Michael J. Fahey
Knoxville, Tn. 37902 Assistant Attorney General
450 James Robertson Parkway
Nashville, Tn. 37243
Kenneth Baldwin
Assistant District Attorney
900 E. Elk Ave.
Elizabethton, Tn. 37643
OPINION FILED: ______________________
REVERSED AND REMANDED
CHARLES LEE,
Special Judge
OPINION
This is an appeal as of right from a judgment of the trial court summarily
dismissing the appellant's petition for post-conviction relief. The appellant
originally filed a writ of habeas corpus. The trial court apparently treated the
writ as a petition for post conviction relief and dismissed the petition without
appointing counsel or conducting an evidentiary hearing. The judgment of
the trial court is reversed. This matter is remanded to the trial court for an
appointment of counsel and an evidentiary hearing.
The appellant filed a suit for habeas corpus relief on October 29, 1992.
The petition alleged that the appellant entered into a plea bargain agreement
to settle an aggravated assault charge. According to the petition, the
appellant and the State agreed his sentence for aggravated assault would run
concurrently with a parole violation. The appellant asserts that he should be
granted relief from his conviction because his sentence is illegal and the
judgment is void.
The state filed an answer urging the trial court to consider the matter
as a post conviction petition, generally denying the allegations of the petition
and alleging no deprivation of a constitutional right.
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The trial court dismissed the matter referring to the action as a "post
conviction writ" simply stating that the "... petitioner has not stated a cause of
action that has not been already in effect..."
It is unnecessary to address whether this matter should be treated as
a habeas corpus or post conviction to resolve the issues. We note, however,
that in this jurisdiction a trial court has the discretion to treat a suit for habeas
corpus as a suit for post-conviction relief if the remedy is adequate and
appropriate to resolve the grounds raised. Tenn. Code Ann. § 40-30-108.
This Court has held that a trial court should treat a habeas corpus suit as a
suit for post-conviction relief when the pleadings of the parties do not comport
with the requirements applicable to habeas corpus suits, Trolinger v. Russell,
1 Tenn. Crim. App. 525, 446 S.W.2d 538 (1969); or the limited relief in
habeas corpus suits prevents an adjudication on the grounds raised by the
petitioner, but the grounds are cognizable in a post-conviction suit. See
Porter v. State, 2 Tenn. Crim. App. 437, 455 S.W.2d 159 (1970); Richmond v.
Russell, 2 Tenn. Crim. App. 345, 454 S.W.2d 155 (1970).
The trial court was authorized to treat this matter as one for
post-conviction relief. The judgments entered by the trial court, if illegal, are
voidable as opposed to being void. See State v. Burkhart, 566 S.W.2d 871(Tenn. 1978); Henderson v. State, 220 Tenn. 520, 419 S.W.2d 176 (1967).
The writ of habeas corpus will not "lie to liberate a person imprisoned under a
voidable judgment as opposed to one which is void." State v. Henderson, 640
S.W.2d 56, 57 (Tenn. Crim. App. 1982).
The resolution of this matter is controlled by Henderson v. State, supra.
In Henderson the defendant committed a robbery with a deadly weapon while
on parole for a previous conviction. The parties entered into a plea bargain
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agreement. It was agreed that the defendant would plead guilty to simple
robbery, the maximum sentence would be five (5) years, and the sentence
would be served concurrently with the previous sentence. Later, the
appellant challenged the validity of his conviction on the ground the sentence
was illegal. It was conceded that the trial court was powerless to order that
the sentences would be served concurrently as the applicable statute
mandated that the sentences must be served consecutively. The trial court
set aside the conviction following an evidentiary hearing. The State appealed
the judgment. In affirming the judgment of the trial court, the Supreme Court
said:
After having thought about the matter, heard able arguments, read
the record and authorities, we agree that the trial judge was correct in
his ruling herein.
******
Here, there was no official misrepresentation. The argument is made
as to what they thought would happen, and it just was not right. When
it appears that this is true the accused should be allowed to withdraw
his plea.
220 Tenn. at 525, 419 S.W.2d at 178, 179.
Upon remand the appellant shall be given the opportunity to amend his
pleadings with the guiding hand of counsel. Thereafter, the trial court shall
conduct an evidentiary hearing on the grounds raised in the appellant's
pleadings.
_____________________________
Charles Lee, Special Judge
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CONCUR:
____________________________
Paul G. Summers, Judge
____________________________
Joseph M. Tipton, Judge
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