Opinion

Michael J. McCann v. State of Tennessee

Court
Court of Criminal Appeals of Tennessee
Filed
Oct 31, 2018
Status
Published
On the bench
Judge John Everett Williams
Cited by
0 cases
Authority
More cited than 5.7%

“When such documents from the record of the underlying proceedings are not attached to the habeas corpus petition, a trial court may properly choose to dismiss the petition without the appointment of counsel or a hearing.”

How later courts described this case

  • “When such documents from the record of the underlying proceedings are not attached to the habeas corpus petition, a trial court may properly choose to dismiss the petition without the appointment of counsel or a hearing.”

Written by the judges who cited it.

The opinion

10/31/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 19, 2018

MICHAEL J. MCCANN V. STATE OF TENNESSEE

Appeal from the Circuit Court for Wayne County

No. 16239 Robert L. Jones, Judge

___________________________________

No. M2018-00192-CCA-R3-HC

___________________________________

The Petitioner, Michael J. McCann, appeals the Wayne County Circuit Court’s summary

dismissal of his pro se petition for writ of habeas corpus. The Petitioner contends that a

probation revocation involving certain 1994 drug convictions was in error and that the

erroneous probation revocation led to an incorrect calculation of his pretrial jail credits.

After a review of the record and applicable law, we conclude that the habeas corpus court

did not commit error, and we affirm the habeas court’s dismissal of the petition.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which J. ROSS

DYER, J., joined. TIMOTHY L. EASTER, J., not participating.

Michael Joe McCann, Clifton, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Robert Wilson, Assistant Attorney

General; and Brent A. Cooper, District Attorney General, for the appellee, State of

Tennessee.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

In 1994, the Petitioner pleaded guilty to one count of automobile burglary and one

count of theft under $500 in case number 5305. He also entered a guilty plea in case

number 5316 to three counts of the sale of marijuana. The trial court imposed a one-year

sentence for each count for case number 5316 to be served consecutively to the other

counts in case number 5316. The judgment forms do not specify whether the Petitioner’s

sentences for case numbers 5305 and 5316 were to run consecutively or concurrently.

However, the judgment forms from case number 5316 show that those sentences were to

run consecutively to case numbers 5325 and 5326. The appellate record does not contain

the judgment forms for case numbers 5325 and 5326 or any other information regarding

the offenses or sentences in those cases.

In August 1996, the trial court revoked the Petitioner’s supervised probation in

case number 5316 and sentenced him to a five-year sentence in community corrections.

In February 1998, the trial court found that the Petitioner had violated the terms of his

community corrections sentence and ordered him to serve 180 days in confinement

before returning to complete the remaining time on his five-year sentence in community

corrections. In March 1999, the trial court again found him in violation of the terms of

his community corrections sentence, and it ordered him to serve the remainder of his

sentence in confinement.

In 2000, a jury found the Petitioner guilty of one count of aggravated criminal

trespass on a habitation, two counts of assault, two counts of aggravated assault, one

count of aggravated sexual battery, and two counts of especially aggravated kidnapping.

He was sentenced as a Range II, multiple offender on the aggravated assault charges and

a Range I offender on the remaining convictions. The Petitioner received a ten-year

sentence on the aggravated assault and aggravated sexual battery convictions and a

twenty-five year sentence on the especially aggravated kidnapping convictions, and the

trial court imposed partially consecutive sentences for an effective thirty-year sentence.

In 2001, this court overturned one of the Petitioner’s assault convictions. See State v.

Michael J. McCann, M2000-2990-CCA-R3-CD, 2001 WL 1246383 at *1 (Tenn. Crim.

App. Oct. 17, 2001).

The Petitioner filed a petition for writ of habeas corpus on October 20, 2017,

alleging that the trial court erred in 1996 when it revoked his probation and sentenced

him to a five-year sentence in community corrections. Assuming that the service of his

three one-year marijuana sentences began in 1994 despite the fact that the judgment

reflects that these convictions were to be served consecutively to the sentences in two

other cases, the Petitioner asserted that two of the one-year sentences from his marijuana

convictions had already expired in 1996. The Petitioner argues that the five-year

community corrections sentence was accordingly an illegal sentence and that he should

be entitled to pretrial jail credit to be applied to his July 2000 convictions for the time

served for his marijuana offenses. The habeas court summarily dismissed his petition on

December 29, 2017. This appeal follows.

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ANALYSIS

The State argues that the Petitioner failed to file his notice of appeal within thirty

days of the habeas court’s order dismissing his petition for relief as required by

Tennessee Rule of Appellate Procedure 4(a). The habeas court entered its order denying

the Petitioner’s request for habeas corpus relief on December 29, 2017. The Petitioner

mailed his notice of appeal through the correctional facility where he is serving his

sentence. “When timeliness of filing or service become[s] an issue, the burden is on the

pro se petitioner to establish compliance with this provision.” Tenn. Sup. Ct. R. 28 §

2(G); see also Tenn. R. Crim. P. 49(d).

The “prison mailbox rule” provides that documents filed by pro se inmates “may

be considered filed within the prescribed time if delivered to the appropriate prison

authority for mailing within the time allowed for filing.” State v. Christopher Burress,

E2012-00861-CCA-R3-CD, 2013 WL 1097809, at *4 (Tenn. Crim. App. Mar. 18, 2013)

(citing Tenn. R. Crim. P. 49(d)). The Petitioner’s signed notice of appeal was dated on

Monday, January 29, 2018. According to Tennessee Rule of Appellate Procedure 21(a),

“the last day of the period so computed shall be included unless it is a Saturday, a

Sunday, or a legal holiday.” Although the notice of appeal document bears a stamped

filed date of January 30, 2018, we “consider his notice of appeal filed as of the date

indicated in the document itself.” Donald Scott Kimbrough v. State, E2017-01354-CCA-

R3-PC, 2018 WL 2277831, at *1 n.2 (Tenn. Crim. App. May 18, 2018). Accordingly, we

conclude that the Petitioner’s appeal was timely filed.

The determination of whether habeas corpus relief should be granted is a question

of law. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). Our review is “de novo with no

presumption of correctness given to the findings and conclusions of the lower court[].”

Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). The “grounds upon which habeas

corpus relief may be granted are very narrow.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn.

1999). A petitioner is entitled to habeas relief “only in the case of a void judgment or to

free a prisoner after his term of imprisonment or restraint has expired.” Summers, 212

S.W.3d at 255. A writ will be issued only when the judgment is void, not merely

voidable. State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968). A

facially void judgment is a judgment that the trial court did not have the authority to

impose. Davis v. State, 313 S.W.3d 751, 767 (Tenn. 2010). Because the Petitioner did

not comply with the procedural requirements for filing a writ for habeas corpus petition

and the Petitioner has not asserted a colorable habeas claim, we affirm the dismissal of

the petition.

The Tennessee Supreme Court has noted that “[w]ithout question, the procedural

provisions of the habeas corpus statutes are mandatory and must be followed

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scrupulously.” Archer v. State, 851 S.W.2d 157, 165 (1993). The State argues that the

Petitioner failed to comply with the habeas corpus procedural provisions as required by

Tennessee Code Annotated section 29-21-107(b)(2). A petition for writ of habeas corpus

must provide “[t]he cause or pretense of such restraint according to the best information

of the applicant, and if it be by virtue of any legal process, a copy thereof shall be

annexed, or a satisfactory reason given for its absence.” T.C.A. § 29-21-107(b)(2). One

of the requirements for filing a petition for a writ of habeas corpus is to include a copy of

the judgment at issue. See Archer, 851 S.W.2d at 165.

The State asserts that the Petitioner did not attach all of his judgments responsible

for his current thirty-year sentence. The Petitioner did not attach the judgment form for

his 2000 conviction for aggravated sexual battery, one of the convictions that is

responsible for his current sentence, and he did not give a satisfactory reason for its

absence, as required by statute. The habeas court did not err by summarily dismissing the

Petitioner’s petition for a writ of habeas corpus. See Summers, 212 S.W.3d at 261

(“When such documents from the record of the underlying proceedings are not attached

to the habeas corpus petition, a trial court may properly choose to dismiss the petition

without the appointment of counsel or a hearing.”); Donald Marshall Mathis v. State,

M2010-00730-CCA-R3-HC, 2011 WL 300143, at *3 (Tenn. Crim. App. Jan. 19, 2011)

(holding that when a petitioner did not attach the judgment form for his current sentence,

the habeas court’s dismissal was supported by procedural failure alone).

Regardless of the procedural improprieties, the Petitioner is not entitled to relief.

Insofar as the Petitioner is challenging his 1994 drug convictions, those sentences have

expired. “[H]abeas corpus relief may not be granted after expiration of a sentence.”

Brown, 479 S.W.3d at 207. The Petitioner relies on Ussery v. Avery, 432 S.W.2d 656

(Tenn. 1968), for the proposition that all but one of his 1994 sentences were already

served at the time of the probation revocation, and that his subsequent prison time should

have applied towards his 2000 convictions. The Petitioner’s reliance on Ussery is

misplaced. The Court in Ussery reasoned that habeas corpus relief is available only to a

petitioner contesting the validity of the judgment under which he is currently confined.

Ussery, 432 S.W.2d at 658. The Petitioner is not currently confined for his 1994

marijuana convictions.

In 1996, the trial court found that the Petitioner violated the terms of his

supervised probation and imposed a five-year sentence to be served in community

corrections for the violation of probation. It appears that the Petitioner is essentially

claiming that he is entitled to receive more pretrial jail credits for time served in

community corrections. A trial court’s decision not to “award pretrial jail credits is

insufficient to state a colorable claim for relief from an illegal sentence.” State v. Brown,

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479 S.W.3d 200, 213 (Tenn. 2015). Accordingly, we conclude that the Petitioner has

failed to establish that he is entitled to relief.

CONCLUSION

The habeas court’s dismissal of the Petitioner’s writ of habeas corpus petition is

affirmed.

JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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