Andre Anthony v. State of Tennessee

07/19/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 11, 2022
ANDRE ANTHONY v. STATE OF TENNESSEE
Appeal from the Circuit Court for Trousdale County
No. 2020-CV-4869 Michael Wayne Collins, Judge
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No. M2021-00665-CCA-R3-HC
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The Petitioner, Andre Anthony, appeals the Trousdale County Circuit Court’s summary
dismissal of his pro se petition for writ of habeas corpus. After review, we affirm the
judgment of the habeas corpus court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.
Andre Anthony, Hartsville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter, and T. Austin Watkins, Senior
Assistant Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
This case relates to the Petitioner’s robbery of a Memphis store in July 1999. See
State v. Andre Anthony, No. W2002-01377-CCA-R3-CD, 2003 WL 23100339, at *1
(Tenn. Crim. App. Dec. 30, 2003). During the robbery, the Petitioner seriously injured the
store clerk and took cash, credit cards, and blank checks. See id. He later used one of the
credit cards and made out three of the checks to himself. See id. at *3. The record reflects
that in May 2002, a jury convicted the Petitioner of forgery over five hundred dollars in
case number 00-00157, forgery over five hundred dollars in case number 00-00158, forgery
over one thousand dollars in case in case number 00-00159, attempted first degree murder
in case number 00-00160, and especially aggravated robbery in case number 00-00161.
The trial court sentenced the Petitioner to two years for each conviction of forgery
over five hundred dollars, four years for his conviction of forgery over one thousand
dollars, twenty-four years for his conviction of attempted first degree murder, and twenty-
two years for his conviction of especially aggravated robbery and ordered that he serve the
twenty-two- and twenty-four-year sentences consecutively for a total effective sentence of
forty-six years. On direct appeal of his convictions, this court affirmed the judgments of
the trial court. Id. This court also affirmed the post-conviction court’s denial of the
Petitioner’s petition for post-conviction relief and the trial court’s denial of his motion to
correct an illegal sentence pursuant to Rule 36.1, Tennessee Rules of Criminal Procedure.
See State v. Andre Anthony, No. W2016-02347-CCA-R3-CD, 2018 WL 1989613, at *1
(Tenn. Crim. App. Apr. 26, 2018); Andre Anthony v. State, No. W2007-00532-CCA-R3-
PC, 2008 WL 763783, at *1 (Tenn. Crim. App. Mar. 24, 2008).
On June 13, 2019, the Petitioner filed a pro se Petition for Declaratory Judgment in
chancery court pursuant to the Tennessee Uniform Administrative Procedures Act,
challenging the application of pretrial jail credits in case numbers 00-00160 and 00-00161.
The Tennessee Department of Correction (TDOC) filed a motion for summary judgment.
The chancery court’s rulings regarding the pro se petition and the motion for summary
judgment are not relevant to the present case. However, in support of the TDOC’s motion
for summary judgment, Amber Phillips, the TDOC’s Assistant Director of Sentence
Management Services, signed an affidavit in which she calculated the expiration of each
of the Petitioner’s five sentences based on the length of the sentence, the Petitioner’s
pretrial jail credit, his pretrial behavior credits, and his sentence reductions credits.
According to her calculations, the Petitioner’s twenty-two-year sentence in case number
00-00161 expired on May 7, 2018, and his twenty-four-year sentence in case number 00-
00160, which he was to serve consecutive to the twenty-two-year sentence, was to expire
on November 19, 2041.
On October 8, 2020, the Tennessee Board of Parole held a parole hearing regarding
the Petitioner. In a letter dated October 12, 2020, the Board notified the Petitioner that it
recommended he “begin serving [his] next sentence on 9/1/2016.”
On November 5, 2020, the Petitioner filed a pro se petition for writ of habeas corpus,
asserting that by “next sentence” the Board of Parole meant his twenty-two-year sentence
in case number 00-00161. He also asserted that his sentences in case numbers 00-00160
and 00-00161 had both expired and that he was being illegally restrained of his liberty. In
support of his argument, the Petitioner attached a printout from the Tennessee Offender
Management Information System (TOMIS), showing that his twenty-four-year sentence in
case number 00-00160 expired on September 2, 2016. He also attached Ms. Phillips’s
affidavit in which she calculated that his twenty-two-year sentence in case number 00-
00161 expired on May 7, 2018. On May 17, 2021, the habeas corpus court entered an order
summarily denying the petition for writ of habeas corpus, concluding that “it appears the
petitioner’s sentences have not expired per the face of the judgments.”
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ANALYSIS
On appeal, the Petitioner contends that the habeas corpus court erred by summarily
denying his petition for writ of habeas corpus because the trial court failed to award him
pretrial jail credits on all of his cases as required by Tennessee Code Annotated section 40-
23-101(c), because the trial court erred by determining that his judgments of conviction
did not need to be corrected to reflect pretrial jails credits, and because he was “granted
parole to an expired sentence if pretrial jail credits were awarded.” The State argues that
the habeas corpus court properly denied the petition for writ of habeas corpus. We agree
with the State.
Article I, section 15 of the Tennessee Constitution guarantees an accused the right
to seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999).
However, “[s]uch relief is available only when it appears from the face of the judgment or
the record of the proceedings that a trial court was without jurisdiction to sentence a
defendant or that a defendant’s sentence of imprisonment or other restraint has expired.”
Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000); see also Tenn. Code Ann. § 29-21-101.
In other words, habeas corpus relief may be sought only when the judgment is void, not
merely voidable. Taylor, 995 S.W.2d at 83. “A void judgment ‘is one in which the
judgment is facially invalid because the court lacked jurisdiction or authority to render the
judgment or because the defendant's sentence has expired.’ We have recognized that a
sentence imposed in direct contravention of a statute, for example, is void and illegal.”
Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (quoting Taylor, 995 S.W.2d at
83). The determination of whether to grant habeas corpus relief is a question of law.
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we will review the trial
court’s findings de novo without a presumption of correctness. Id. Moreover, it is the
Petitioner’s burden to demonstrate, by a preponderance of the evidence, “that the sentence
is void or that the confinement is illegal.” Wyatt, 24 S.W.3d at 322.
Initially, we note that the Petitioner did not raise his first two issues in his pro se
petition. We will not address issues raised for the first time on appeal. See State v.
Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996); State v. Turner, 919 S.W.2d
346, 356-57 (Tenn. Crim. App. 1995). In any event, the failure to award pretrial jail credits
does not render a sentence illegal and, therefore, is not a colorable claim in a habeas corpus
petition. See State v. Brown, 479 S.W.3d 200, 212-13 (Tenn. 2015) (stating that “[a] trial
court’s failure to award pretrial jail credits does not render the sentence illegal”); Cory
O’Brien Johnson v. State, No. W2016-00087-CCA-R3-HC, 2016 WL 4545876, at *2
(Tenn. Crim. App. Aug. 30, 2016) (stating that “[a] trial court’s failure to award pretrial or
post-judgment jail credits does not render a sentence illegal and is, therefore, insufficient
to establish a colorable claim for habeas corpus . . . relief”).
Regarding the expiration of the Petitioner’s sentences in case numbers 00-00160
and 00-00161, the record before us includes copies of those judgments of conviction. The
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judgment for case number 00-00160 shows that the Petitioner was convicted of attempted
first degree murder on May 2, 2002, that he received a twenty-four-year sentence to be
served at thirty percent release eligibility, and that he was to serve the sentence consecutive
to his sentence in case number 00-00161. The judgment for case number 00-00161 shows
that the Petitioner was convicted of especially aggravated robbery on May 2, 2002, that he
received a twenty-two-year sentence to be served at one hundred percent, and that he was
to serve the sentence consecutive to his sentence in case number 00-00160. Accordingly,
the judgments of conviction do not support the Petitioner’s claim that both of his sentences
have expired, and he is not entitled to habeas corpus relief.
CONCLUSION
After review, we affirm the judgment of the habeas corpus court.
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JOHN W. CAMPBELL, SR., JUDGE
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