Daniel G. Carr v. State of Tennessee - Concurring/Dissenting

11/21/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 15, 2019 Session

DANIEL G. CARR v. STATE OF TENNESSEE

Appeal from the Circuit Court for Macon County

Nos. 99-CR-93, 99-CR-94, 99-CR-95, Brody Kane, Judge

99-CR-96, 99-CR-97, 99-CR-98

No. M2017-01389-CCA-R3-PC

ROBERT H. MONTGOMERY, JR., J., concurring in part; dissenting in part.

I concur with the majority’s conclusions to reverse the judgment of the post-

conviction court and to remand this case for consideration of whether due process requires

tolling of the one-year statute of limitations and, if so, whether the Petitioner is entitled to

post-conviction relief. However, I respectfully disagree with the majority’s conclusion that

the Petitioner is entitled to habeas corpus relief.

The record reflects that the Petitioner pleaded guilty to offenses enumerated in Code

section 39-13-524(a) (2018), requiring a sentence of community supervision for life.

However, the original judgments of conviction did not reflect a sentence of lifetime

supervision. The Petitioner conceded at oral argument that the original judgments of

conviction contained illegal sentences because they did not reflect the sentence of

community supervision for life. Code section 39-13-524(b) requires a judgment of

conviction to reflect that a defendant has received “a sentence of community supervision for

life” when convicted of the enumerated offenses. (Emphasis added). This court has

concluded that “the failure to include the community supervision for life provision [on the

judgments of conviction] rendered the . . . sentences void.” State v. Bronson, 172 S.W.3d

600, 601-602 (Tenn. Crim. App. 2005); see Cantrell v. Easterling, 346 S.W.3d 445, 452

(Tenn. 2011) (concluding that an illegal sentence is “one which is in direct contravention of

the express provision of [an applicable statute], and consequently [is] a nullity”) (internal

quotations and citation omitted). The failure to include community supervision for life on

the judgments of conviction was in direct contravention of Code section 39-13-524(a).

As a result, the original judgments of conviction reflected illegal sentences, which

rendered them void. See T.C.A. § 29-21-101 (2012); see also Tucker v. Morrow, 335

S.W.3d 116, 119-20 (Tenn. Crim. App. 2009). “An illegal sentence renders a judgment void,

and a trial court may correct it at any time.” Bronson, 172 S.W.3d at 602. Therefore, the

trial court had the authority to amend the judgments. The amended judgments of conviction

before this court corrected the illegality, reflect the proper sentence of lifetime community

supervision, and are not void. Archer v. State, 851 S.W.2d 157, 161 (Tenn. 1993)

(determining that a judgment is void if it appears from its face or the record that the

convicting court lacked jurisdiction or authority to sentence the defendant or that the

defendant’s sentence has expired); see Moody v. State, 160 S.W.3d 512, 515 (Tenn. 2005).

Because the amended judgments of conviction at issue in this appeal do not reflect an illegal

sentence, they are not void. Therefore, I conclude that the Petitioner is not entitled to habeas

corpus relief.

Furthermore, I disagree with the majority’s conclusion that the trial court did not have

jurisdiction to amend the original judgments because the Petitioner’s sentences had expired.

See generally State v. Brown, 479 S.W.3d 200 (Tenn. 2015); Anthony Leslie v. State, No.

M2018-00856-CCA-R3-HC, 2019 WL 3814623 (Tenn. Crim. App. Aug. 14, 2019), no

perm. app. filed. Community supervision for life is “a sentence” in addition to any term of

confinement. See T.C.A. § 39-13-524(a) (“In addition to the punishment authorized by the

specific statute prohibiting the conduct, a person shall receive a sentence of community

supervision for life . . . .”) (Emphasis added). “The sentence of community supervision for

life shall commence immediately upon the expiration of the term of imprisonment imposed

upon the person by the court or upon the person’s release from regular parole supervision,

whichever first occurs.” Id. § 39-13-524(c). The plain language of the statute reflects that

the sentence of community supervision for life begins, in relevant part, upon the expiration

of the term of confinement. The Petitioner’s original sentence included a ten-year sentence

to serve in the Tennessee Department of Correction and lifetime community supervision for

life, regardless of whether the parties and the trial court were aware of the sentence at the

guilty plea hearing. The sentence of lifetime supervision was mandated by statute, and the

failure to note it on the original judgments of conviction resulted in void judgments.

Although the Petitioner’s service requirement in the Tennessee Department of Correction

had been completed at the time the amended judgments were entered, his lifetime

supervision sentence had not expired.

For purposes of habeas corpus as a mechanism to correct an illegal sentence, it is

irrelevant whether the Petitioner knew about the statutorily mandated sentence of lifetime

supervision. Rather, the Petitioner’s knowledge of lifetime supervision is a question of

whether the Petitioner entered knowing and voluntary guilty pleas and whether he received

the ineffective assistance of counsel, which are matters to be addressed in a petition for post-

conviction relief. See Calvert v. State, 342 S.W.3d 477 (Tenn. 2011); State v. Nagele, 353

S.W.3d 112 (Tenn. 2011). I note that the Petitioner has raised these allegations properly in

his post-conviction petition. The Petitioner’s full sentences had not expired at the time the

amended judgments of conviction were entered, and, as a result, the trial court had the

authority to correct the illegal sentences contained in the judgments of conviction. I am

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unwilling to conclude that the failure to notate the statutorily required lifetime supervision

sentence on a judgment of conviction deprives a trial court of jurisdiction to amend the

judgment after a defendant has completed a period of confinement.

Furthermore, this case is distinguishable from State v. Brown, 479 S.W.3d 200 (Tenn.

2015), which it relied upon by the majority. The defendant in Brown sought to correct an

illegal sentence pursuant to Tennessee Criminal Procedure Rule 36.1 because the judgments

of conviction reflected concurrent six-year sentences, rather than concurrent three-year

sentences pursuant to a plea agreement. Long after having served the six-year sentences, the

defendant sought to correct the illegality reflected in the judgments of conviction. However,

our supreme court concluded that relief pursuant to a motion to correct illegal sentences is

proper only when the relevant sentences have not expired. Id. at 203-212. The offenses

involved in Brown were drug-related, and the sentences were limited to a finite period of

confinement and did not include the sentence of community supervision for life. At the time

the defendant in Brown sought relief, his sentences had fully expired, unlike in the present

case. In Brown, the judgments of conviction reflected an incorrect number of years in

confinement. In the present case, the judgment omitted the additional, separate, and distinct

sentence of community supervision for life. Brown does not address the circumstances

presented here.

The Petitioner’s full sentences had not expired when the trial court entered the

amended judgments, which corrected illegal sentences, and, therefore, the trial court had

jurisdiction to cure the illegality. The judgments before this court do not reflect illegal

sentences, and I would respectfully affirm the denial of habeas corpus relief.

____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE

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