Christopher Keyln Dearing v. Howard Carlton, Warden

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 30, 2007

CHRISTOPHER KEYLN DEARING v. HOWARD CARLTON, WARDEN

Appeal from the Criminal Court for Johnson County

No. 5037 Lynn W. Brown, Judge

No. E2007-01191-CCA-R3-HC - Filed February 1, 2008

The Appellant, Christopher Keyln Dearing, proceeding pro se, appeals the Johnson County Criminal

Court’s summary dismissal of his petition for the writ of habeas corpus. Dearing is currently an

inmate at Northeast Correctional Complex in Johnson County as a result of his convictions for Class

D felony theft and Class E evading arrest. Dearing’s petition alleges that, under the terms of his plea

agreement, he pled guilty to Class D theft in exchange for a sentence of two years; however, the

judgment form and Department of Correction records show that the actual length of the sentence he

is serving is two years and one day. Dearing argues that, because the State has breached the plea

agreement, his sentence of two years and one day is void. After review, we agree with the trial court

that Dearing’s petition fails to state a cognizable claim for habeas corpus relief. Accordingly, the

judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES, J., concurred

in results only, and D. KELLY THOMAS, JR., J., filed a dissenting opinion.

Christopher Keyln Dearing, Pro se, Mountain City, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; and Sophia S. Lee, Assistant Attorney

General, for the Appellee, State of Tennessee.

OPINION

Procedural History

On November 9, 2005, the Appellant entered guilty pleas in the Hamblen County Criminal

Court to the crimes of theft of property valued between $1,000 and $10,000, a Class D felony, and

evading arrest with flight, a Class E felony. The judgments of conviction reflect that the Appellant

received concurrent sentences of two years and one day for the theft conviction and one year for the

evading arrest conviction.

On February 14, 2007, the Appellant filed a pro se petition for the writ of habeas corpus,

which alleged that his sentence of two years and one day for the theft of property conviction was

illegal because it was induced by the State’s agreement that his sentence would be two years. As

such, he argues that his guilty plea was not knowingly and voluntarily entered. The Appellant also

filed a motion to proceed in forma pauperis on the same day. According to the Appellant, the

agreed-upon two-year sentence is reflected on both the negotiated guilty plea form and the guilty plea

document. We would note, however, that neither document is included in the record before us

Moreover, the transcript of the guilty plea hearing, which would definitively determine the agreed-

upon sentence, is neither included. The judgment of conviction for felony theft, which is included

in the record, clearly reflects that the Appellant received a sentence of two years and one day for the

conviction.

On May 4, 2007, the trial court entered an order granting the State’s motion to summarily

dismiss the petition, stating that nothing in the petition supported a finding that the conviction was

void or that the sentence had expired. Moreover, the trial court further held that the pauper’s oath

and affirmation in support of the Appellant’s motion to proceed in forma pauperis was insufficient

to make a finding of indigency. On May 25, 2007, the Appellant filed a timely notice of appeal.

Analysis

The right to seek habeas corpus relief is guaranteed by Article I, section 15 of the Tennessee

Constitution. Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004). However, the grounds upon which

habeas corpus relief will be granted are narrow. Id. at 20 (citations omitted). Relief will be granted

if the petition establishes that the challenged judgment is void. Id. A judgment is void “only when

‘it appears upon the face of the judgment or the record of the proceedings upon which the judgment

is rendered’ that a convicting court was without jurisdiction or authority to sentence a defendant .

. . .” Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “If the court rendering a judgment has

jurisdiction of the person, the subject-matter, and has the authority to make the challenged judgment,

the judgment is voidable, not void; and the judgment may not be collaterally attacked in a suit for

habeas corpus relief.” Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

The petitioner in a habeas corpus proceeding has the burden of establishing either a void

judgment or an illegal confinement by a preponderance of the evidence. If the petitioner carries this

burden, he is entitled to immediate release. Id. However, if the habeas corpus petition fails to

demonstrate that the judgment is void or that the confinement is illegal, neither appointment of

counsel nor an evidentiary hearing is required, and the trial court may properly dismiss the petition.

Hickman, 153 S.W.3d at 20 (citing T.C.A. § 29-21-109 (2003); Dixon v. Holland, 70 S.W.3d 33, 36

(Tenn. 2002)). The determination of whether habeas corpus relief should be granted is a question

of law which this court reviews de novo. State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006);

Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000).

The Appellant, on appeal, argues that his sentence is void and, thus, illegal because his guilty

plea was not knowingly and voluntarily entered, as it was induced by an unfulfilled promise to

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receive a specific sentence of two years. While the Appellant is correct that a guilty plea induced

by misrepresentation is improper, a claim that a guilty plea was not voluntarily entered, even if

proven, merely renders a judgment voidable, not void. Archer, 851 S.W.2d at 164; see also Joseph

T. Faulkner v. State, No. W1999-00223-CCA-R3-PC (Tenn. Crim. App. at Jackson, Oct. 17, 2000)

(“[w]here a promise embodied in a plea agreement cannot be legally performed by the parties, the

voluntariness of the plea will be affected since the plea bargain agreement is the direct inducement

for the guilty plea.”). Thus, habeas corpus relief is not appropriate in this case, as post-conviction

relief is the procedural avenue for attacking voidable judgments. Hickman, 153 S.W.3d at 20. As

noted by our supreme court, “[v]oluntariness of the [guilty] plea . . . has no relevance in a habeas

corpus proceeding.” Summers v. State, 212 S.W.3d 251, 259 (Tenn. 2007).

Although not raised as error by the Appellant, we are constrained to note that a sentence of

two years and one day may constitute, under certain circumstances, an illegal sentence. In this case,

these circumstances are not apparent from the record before us. Tennessee Code Annotated section

40-35-211(1) (2006) provides, in relevant part, that:

Specific sentences for a felony shall be for a term of years or months or life,

if the defendant is sentenced to the department of correction; or a specific term of

years, months, or days if the defendant is sentenced for a felony to any local jail or

workhouse. . . .

(emphasis added). In this case, the Appellant was sentenced to incarceration in the Department of

Correction for a term of two years and one day. This sentence is in contravention of the statute. See

James Gordon Coons, III v. State, No. 01C01-9801-CR-00014 (Tenn. Crim. App. at Nashville, May

6, 1999) (finding sentence of six years and one day incarceration in the Department of Correction

violated the plain meaning of Tennessee Code Annotated section 40-35-211(1)). Nonetheless, it has

been held that in the context of plea bargaining, a defendant may agree to a sentence in contravention

of statutory provisions, thus, waiving consideration of the issue based upon a knowing and voluntary

guilty plea. Id. In the instant case, the Appellant has failed to include the relevant sentencing

documents to support his position. Accordingly, in the absence of evidence to the contrary, we must

presume that the Appellant’s guilty plea represents a knowing and voluntary plea which resulted in

the imposition of a two-year and one-day sentence as provided by the plea agreement. As such, we

find no error in the trial court’s summary dismissal of the petition.

In a second issue, the Appellant alleges as error the trial court’s failure to rule on his motion

to proceed in forma pauperis. The court’s order dismissing the habeas corpus petition included the

language, “[s]ince the pauper’s oath and affirmation is not sufficient to make a finding of indigency,

the court makes no finding regarding indigency.” According to the Appellant, the court “falsified

its reasons for not making a ruling upon the properly filed motion,” as the oath and affirmation were

properly completed and established his indigency. It is obvious from the trial court’s order that,

because “no finding regarding indigency” was made, the ruling was not a final judgment and, thus,

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not appealable as of right under the provisions of Rule 3, Tennessee Rules of Appellate Procedure.1

Nonetheless, no ruling was required by the trial court because the Appellant’s petition clearly failed

to state a cognizable claim. As noted by our supreme court, “the liberal procedural safeguards of the

Post-Conviction Procedure Act [have not been incorporated] into the provisions governing habeas

corpus.” Summers, 212 S.W.3d at 261. As noted by the State, this includes the right to counsel in

a habeas corpus proceeding. Accordingly, we find no error.

CONCLUSION

Based upon the foregoing, the summary dismissal of the Appellant’s petition for the writ of

habeas corpus is affirmed.

___________________________________

DAVID G. HAYES, JUDGE

1

An appeal from the denial of a motion to proceed in forma pauperis is more properly addressed through the

interlocutory provisions of Rule 9 or Rule 10 of the Tennessee Rules of Appellate Procedure.

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