DocketNumber: W2000-01533-CCA-R3-CD
Judges: Special Judge Cornelia A. Clark
Filed Date: 8/16/2001
Status: Precedential
Modified Date: 10/30/2014
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON June 12, 2001 Session MICHAEL SHANE HYDER v. ALLEN BARGERY, WARDEN Direct Appeal from the Circuit Court for Hardeman County No. 9203 Jon Kerry Blackwood, Circuit Judge No. W2000-01533-CCA-R3-CD - Filed August 16, 2001 The state has appealed from the judgment of the Circuit Court of Hardeman County granting the petitioner habeas corpus relief and finding that his two consecutive three-year sentences had expired. The state asserts that the sentences have not expired and that the petitioner is not entitled to be released from prison. Because the state has not filed an adequate record, we affirm the judgment of the trial court. Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed CORNELIA A. CLARK, SP. J., delivered the opinion of the court, in which JOE G. RILEY and NORMA MCGEE OGLE, JJ., joined. Paul G. Summers, Attorney General, J. Ross Dyer, Assistant Attorney General, Elizabeth T. Rice, District Attorney General, James Walter Freeland, Jr., Assistant District Attorney General, for the Appellant, Allen Bargery, Warden. John E. Appman, Attorney for Appellee, Michael Shane Hyder. OPINION On November 12, 1999, the petitioner filed a petition for writ of habeas corpus in the Chancery Court of Hardeman County. He alleged that he was incarcerated in the Hardeman County Correctional Facility unlawfully, his sentences imposed in Cumberland County having expired. On November 16, 1999, the case was transferred to the Hardeman County Circuit Court for disposition on the merits. The petition was refiled there November 19, 1999. On January 7, 2000, the state filed a motion to dismiss. On May 15, 2000, the state filed a Response to the Petition, attaching the earlier-filed Motion to Dismiss and two affidavits of Fay Claud, Manager of Sentence Information Services, Tennessee Department of Correction. The motion to dismiss was denied by order entered May 18, 2000, for February 4, 2000. By separate order, a hearing was scheduled for May 19. A third order required the petitioner to be transported to the hearing. No hearing transcript has been filed. By order entered May 25, 2000, the court found that petitioner’s sentence had expired, and granted the writ of habeas corpus. The state appeals that dismissal. It is the duty of the appellant to prepare a record which conveys a fair, accurate, and complete account of what transpired in the trial court with respect to the issues which form the basis of appeal. Tenn. R. App. P. 24(b). In the absence of an adequate record on appeal this court must presume the trial court’s rulings were supported by sufficient evidence. Sherrod v. Wix,849 S.W.2d 780
, 783 (Tenn. App. 1992). The May 25, 2000 order reflects that the case was heard “upon the petitioner’s Petition for Writ of Habeas Corpus, the Answer, Exhibits filed, Memorandum of Law, and arguments of counsel”, and that “the exhibits filed in this case were a true and accurate reflection of the chronology and sentencing in this matter”. However, no transcript of the proceedings below has been made a part of the record. No exhibits are included in the record. While copies of certain orders from the original proceedings in Cumberland County have been filed, they have not been certified or otherwise properly identified and admitted into evidence.1 1 The noncer tified Cum berland County orders included in the file appear to have been filed by the petitioner as attachments to h is original petition for habe as corpus. The y reflect as follows: By order stamped as entered on both October 6 and N ovem ber 6, 19 93, the de fendan t pled guilty in Cumberland County , Tenne ssee to fou r counts of aggra vated bu rglary. U nder a n egotiated plea agre emen t entered in to on October 1, he received four three-year sentences. Two of the sentences were run concurrent to the one another and consecutive to the other two sentences, which were also run concurrent to one another. The defendant therefore received an effective sentence of six years. He was given credit for time served (length not identified), and required to serve the remain der of his se ntence in the Com munity Correctio ns Prog ram. By order entered April 20, 1995, the defendant’s original sentence was modified to allow him to serve the remainder of the community corrections sentence on supervised probation. The order reflects that the sentence expiration date is October 1, 1999. By order entered July 16, 1996, the defendant was found to have vio lated his pro bation ba sed on w arrants issued January 29 and May 24, 1996. The order cited a court hearing of June 10, 1996, and reflected that petitioner had been incarcerated since May 10. He was ordered to serve an additional thirty days in the county jail. Thereafter he was to be released on July 9, 1996 and returned to probation. This order directed that his probation expire on October 1, 1999. By order entered November 24, 1997, the defendant was found to have violated his probation on November 10, 1997. He wa s ordered to serve nin ety days in the Cum berland County jail, and then be return ed to the co mmu nity corrections program. This order did not recite his sentence expiration date. (continu ed...) -2- Allegations contained in pleadings are not evidence. State v. Roberts,755 S.W.2d 833
, 836 (Tenn. Crim. App. 1988). Recitations of the facts contained in a brief, or arguments of counsel, also are not evidence. Id. The state included in an appendix to its brief copies of two affidavits of Fay Claud, Manager of Sentence Information Services, Tennessee Department of Correction. Apparently those affidavits were originally attached to the state’s May 15, 2000, response. It is not clear whether they were properly admitted into evidence or considered by the trial court. Appellate courts may only review what is in the record, and not what might have been or should have been included. Dearborne v. State,575 S.W.2d 259
, 264 (Tenn. 1978). Further, even if the orders and affidavits had properly been placed in the record, they are insufficient, without clarification, to allow determination of the issue presented. The state has failed miserably to meet its duty to present a record from which we can ascertain the actual status of the petitioner’s sentence. Therefore, we must presume the finding of the trial court was supported by sufficient evidence. For the reasons stated above, we conclude that the trial court did not err in granting the petitioner’s petition for writ of habeas corpus. The judgment of the trial court is affirmed. ____________________________________ CORNELIA A. CLARK, SPECIAL JUDGE 1 (...continued) By document filed February 23, 1998, and titled “State of Tennessee Community Corrections Order”, the defendant was placed on state-super vised pro bation fo r a period of six year s. The order indicated that it arose out of a probatio n violation which o ccurred on No vemb er 10, 19 97. This o rder also re quired d efendan t to be placed in the comm unity corrections program effective February 13, 1998, for a period of 5.96 years. However, the signature page, if any, of this order is not included in the record. By order entered F ebruary 22, 199 9, the trial cou rt found that defen dant had violated th e terms o f his community corrections placement of Febru ary 23, 1 998. Th e court rev oked th e comm unity corrections sentence and ordered the defendant to serve “the balance of the revoked sentence”. He was given credit for ninety-six (96) days on comm unity corrections. The order references a violation warrant issued May 19, 1998, but the warrant itself is not included in the record. -3-