Dennis Wayne Merriweather v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 13, 2009
DENNIS WAYNE MERRIWEATHER v. STATE OF TENNESSEE
Appeal from the Circuit Court for Hickman County
No. 08-5045C Robbie Beal, Judge
No. M2008-01848-CCA-R3-HC - Filed June 11, 2009
Appellant, Dennis Wayne Merriweather, filed a petition for the writ of habeas corpus in which he
alleged that his fifteen year sentence for selling controlled substances within 1,000 feet of a school
renders the judgment imposed as a result of his guilty plea void because the judgment provides the
sentence is to be served at 100%. Because we find the judgment is not void, we hold the habeas
court properly dismissed the habeas corpus petition. Accordingly, the judgment of the lower court
is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES and ROBERT W.
WEDEMEYER, JJ., joined.
Dennis Wayne Merriweather, Pro Se, Only, Tennessee.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
and Ron Davis, District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
On August 9, 1999, Appellant pled guilty to selling more than twenty-six grams of cocaine
within 1,000 feet of a school, a violation of Tennessee Code Annotated section 39-17-417(i)(5) with
punishment subject to enhancement pursuant to Tennessee Code Annotated section 39-17-432. He
was sentenced to fifteen years in the Tennessee Department of Correction. Sale of cocaine within
1,000 feet of a school zone is a Class A felony and the term of imprisonment prescribed by statute
is fifteen to sixty years. T.C.A. § 40-35-111(b)(1). Therefore, Appellant received the minimum
sentence prescribed for the offense he committed. The judgment indicates that the term of
imprisonment is to be served at 100% incarceration.
Tennessee Code Annotated section 39-17-432, the Drug Free School Act, provides in
pertinent part:
(c) Notwithstanding any other provision of law or the sentence imposed by
the court to the contrary, a defendant sentenced for a violation of subsection (b) shall
be required to serve at least the minimum sentence for the defendant's appropriate
range of sentence. Any sentence reduction credits the defendant may be eligible for
or earn shall not operate to permit or allow the release of the defendant prior to full
service of the minimum sentence.
(d) Notwithstanding the sentence imposed by the court, the provisions of title
40, chapter 35, part 5, relative to release eligibility status and parole, shall not apply
to or authorize the release of a defendant sentenced for a violation of subsection (b)
prior to service of the entire minimum sentence for the defendant’s appropriate range
of sentence.
(e) Nothing in the provisions of title 38, chapter 1, part 4 shall give either the
governor or the board of probation and parole the authority to release or cause the
release of a defendant sentenced for a violation of subsection (b) prior to service of
the entire minimum sentence for the defendant's appropriate range of sentence.
Despite Appellant’s contention that the sentence he received to be served in its entirety is void
because it is not authorized by Tennessee Code Annotated section 40-35-101, the Tennessee
Criminal Sentencing Reform Act of 1989, the above quoted statute, mandates a 100% service of
Appellant’s sentence.
Appellant’s reliance on this Court’s decision in Terrance Lavar Davis v. State, No. M2009-
00011-CCA-RM-HC, 2009 WL 96177 (Tenn. Crim. App., at Nashville, Apr. 8, 2009) is misplaced.
Unlike Appellant herein, in Terrance Lavar Davis the Appellant had agreed to a sentence above the
minimum in the range for possessing more than twenty-six grams of cocaine in a school zone and
agreed the sentence would be served at 100%. He subsequently filed a petition for habeas corpus
relief claiming that his sentence was illegal because the Drug Free School Zone statute does not
authorize a 100% sentence other than for the minimum sentence for the offense. This Court agreed
and found that the sentence to which the Appellant agreed does not exist anywhere in any of our
sentencing laws and was therefore void. Terrance Lavar Davis, 2009 WL 96177, at *4. In the
instant case, however, Appellant received the minimum sentence and agreed to the 100% service
which is required by law.
In summary, Appellant agreed to service of the minimum sentence for his offense at 100%.
The Drug Free School Zone statute requires service at 100%. There is absolutely nothing illegal
about Appellant’s sentence. If a petition for habeas corpus relief fails on its face to state a cognizable
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claim for the writ a trial court may summarily dismiss the petition. See T.C.A. § 29-21-109;
Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007). The instant petition falls into this category.
CONCLUSION
For the foregoing reasons the judgment of the lower court is affirmed.
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JERRY L. SMITH, JUDGE
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