Larry Joe Jones v. David Mills, Warden

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 15, 2005
LARRY JOE JONES v. DAVID MILLS, WARDEN
Direct Appeal from the Circuit Court for Lauderdale County
No. 5943 Joseph H. Walker, Judge
No. W2005-01172-CCA-R3-HC - Filed December 5, 2005
The petitioner, Larry Joe Jones, appeals from the trial court’s summary dismissal of his pro se
petition for writ of habeas corpus. Following our review, we affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J.C. MCLIN , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR. and NORMA
MCGEE OGLE, JJ., joined.
Larry Joe Jones, Henning, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee.
OPINION
This case represents an appeal from the trial court’s dismissal of the petitioner’s pro se
petition for writ of habeas corpus. In 1980, the petitioner was convicted on two counts each of
aggravated kidnapping and aggravated rape, and one count of grand larceny. On appeal, this Court
affirmed the convictions for aggravated kidnapping and grand larceny but reversed and dismissed
the aggravated rape convictions. State v. Jones, No. 37, Shelby County (Tenn. Crim. App., at
Jackson, Mar. 19, 1981) perm. app. denied (Tenn. June 29, 1981). The petitioner subsequently filed
several state and federal petitions attacking his convictions and sentences, the denial of the most
recent petition for post-conviction relief having been affirmed by this Court in 1998. See Larry
Jones v. State, No. 02C01-9708-CR-00331 (Tenn. Crim. App., at Jackson, Apr. 22, 1998), perm.
app. denied (Tenn. Sept. 14, 1998); see also Larry Jones v. State, No. 02C01-9207-CR-00162 (Tenn.
Crim. App., at Jackson, Feb. 10, 1993), perm. app. denied (Tenn. June 1, 1993).
On April 4, 2005, the petitioner filed a pro se petition for writ of habeas corpus challenging
the validity of his sentences. In the petition, he alleged that his sentences were illegal and void
because the judgment forms causing his restraint were incomplete. In its order summarily dismissing
the petition, the trial court found that the petitioner had failed to allege any grounds warranting
habeas corpus relief.
The petitioner now appeals the trial court’s dismissal, arguing that his sentences are void
because the judgment forms were not completed pursuant to Tennessee Code Annotated section 40-
35-209(e). Essentially, the petitioner contends his sentences are illegal and void because the
judgment forms do not designate his offender status or designate whether his sentences run
concurrently or consecutively.
Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief. Tennessee Code Annotated sections 29-21-101 et seq. codifies the applicable procedures for
seeking a writ. 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 on the face of the judgment or the record of the proceedings upon which the judgment was
rendered that a court was without jurisdiction to convict or sentence the defendant or that the
defendant is still imprisoned despite the expiration of his sentence. Archer v. State, 851 S.W.2d 157,
164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). The purpose of a habeas corpus
petition is to contest void and not merely voidable judgments. Archer, 851 S.W.2d at 163. A void
judgment is a facially invalid judgment, clearly showing that a court did not have statutory authority
to render such judgment; whereas, a voidable judgment is facially valid, requiring proof beyond the
face of the record or judgment to establish its invalidity. See Taylor v. State, 995 S.W.2d 78, 83
(Tenn. 1999). The burden is on the petitioner to establish, by a preponderance of the evidence, “that
the sentence is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn.
2000). Moreover, it is permissible for a trial court to summarily dismiss a petition for habeas corpus
relief, without the appointment of counsel and without an evidentiary hearing, if the petitioner does
not state a cognizable claim. See Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004).
Looking at the record before us, we conclude the petitioner failed to state a cognizable claim
for habeas corpus relief. First, the petitioner was convicted and sentenced prior to the promulgation
of the 1989 Sentencing Act. The petitioner has failed to provide any argument regarding whether
retroactive application of the 1989 Sentencing Act is mandated in this case. Second, Tennessee
Code Annotated section 40-35-209 provides a remedy for incomplete judgment forms, allowing the
sentencing court to complete or correct the judgment form. Tenn. Code Ann. § 40-35-209(g). On
this basis, this Court has previously determined that incomplete judgments representing technical
omissions or defects do not constitute void judgements. See e.g., Kent Ousley v. David Mills,
Warden, No. W2004-02078-CCA-R3-HC, 2005 WL 1457792 (Tenn. Crim. App., at Jackson, June
17, 2005); John Haws Burrell v. Howard Carlton, Warden, No. E2004-01700-CCA-R3-HC, 2005
WL 544732 (Tenn. Crim. App., at Knoxville, March 8, 2005); Anthony K. Goods v. Tony Parker,
Warden, No. W2003-02914-CCA-R3-HC, 2004 WL 2309901 (Tenn. Crim. App., at Jackson, Oct.
13, 2004); Eddie J. Phifer v. State, No. M2003-02236-CCA-R3-HC, 2004 WL 392370 (Tenn. Crim.
App., at Nashville, Mar. 3, 2004). A defect which renders a judgment merely voidable is not subject
to collateral attack via habeas petition. See Archer, 851 S.W.2d at 164. In the instant case, nothing
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in the record demonstrates that the trial court lacked jurisdiction to convict and sentence the
petitioner, or that the petitioner’s sentences have expired. Therefore, the petitioner failed to state a
cognizable claim for habeas corpus relief, and the trial court did not err in summarily dismissing his
petition. The judgment of the trial court is affirmed.
___________________________________
J.C. McLIN, JUDGE
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