Kenneth Kersey v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9604-CR-00128
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED APRIL SESSION, 1997 June 6, 1997

Cecil W. Crowson KENNETH KERSEY, ) Appellate Court Clerk C.C.A. NO. 01C01-9604-CR-00128 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. SHRIVER STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Habeas Corpus)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

PAU LA OG LE BL AIR CHARLES W. BURSON 176 Se cond A venue, N orth Attorney General and Reporter Suite 406 Nashville, TN 37201 LISA A. NAYLOR Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

VICTOR S. JOHNSON District Attorney General

NICHOLAS D. BAILEY Assistant District Attorney General Washington Square, Suite 500 222 Se cond A venue, N orth Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE OPINION

This is an appeal pursuant to Rule 3 of the Tennessee Rules of Appe llate

Procedure. The Defendant filed a petition seeking habeas corpus relief and

alleged generally that his sentence was void and had expire d. Counsel was

appointed, and an amended petition was filed. After conducting an evidentiary

hearing, the trial court denied relief. It is from this order that the Defendant

appea ls. We affirm the ju dgme nt of the trial co urt.

On July 14, 1981, the Defenda nt was convicte d on a jury verdict of

burglary, aggravated sexual battery and aggravated rape. He received an

effective senten ce of twenty years in the D epartm ent of C orrect ion. Sh ortly

thereafter, he was transported to Indiana where he was subsequently convicted

of several offenses and received a sentence of twenty-five years.1 After serving

several years in Indiana, the Defendant was apparently paroled or otherwise

released from prison in Indiana and was returned to Tennessee where he

entered into the custody of the Department of Correction on May 26, 1991. He

has been denied parole several times and remains incarcerated in the

Depa rtment o f Correc tion.

The Defe ndan t’s prima ry argu men t at the e videntia ry hea ring wa s that h is

Tennessee sentence was to be served concurrently with his Indiana sentence

and therefore, beca use he ha s been disch arged from his Indiana sentence, he

shou ld also be discharged from his Tennessee sentence. On appeal, the

1 Apparently, the Indiana sentence was subsequently modified to twenty years.

-2- Defendant argues that his sentence is void because Tennessee violated the

Interstate Compact on Detainers and lost jurisdiction over the Defendant when

he was transported to Indiana. He also argues that beca use h e did n ot actu ally

start serving his Tennessee sentence until 1991, he was denied jail credits and

time for good behavior in violation of due process of law.

Much of the Defendant’s argument centers around his contention that the

Tennessee authorities are not giving him credit on his sentence for the time he

served in Indiana. From this record, we cannot determine for certain whether the

Defenda nt’s Tennes see senten ces were to ru n concurren tly with or consecutively

to the Indiana sentences. It appears from the testimony presented at the

evidentiary hearin g that th e Def enda nt was either e ligible fo r parole at the time

he returned to Tennessee in 1991 or that h e bec ame eligible for paro le sho rtly

thereafter. This fa ct sug gests that the Defe ndan t has re ceived credit o n his

Tennessee senten ces for the time he s erved in In diana. In any event, time

credits and sentence reduction credits are generally inappropriate considerations

in a habeas corpus proc eeding and must be a ddressed through the U niform

Administrative Procedures Act. Tenn . Code Ann. § 4 -5-101 to - 324; Carroll v.

Raney, 868 S.W .2d 721, 723 (Tenn. Crim . App. 1993 ). The sole re lief availa ble

under Ten ness ee’s h abea s corp us sta tute is discharg e from c ustody. Taylor v.

Morgan, 909 S.W .2d 17, 20 (T enn. Crim. A pp. 1995).

Habeas corpu s relief is availab le und er Te nnes see la w only when a

convicting court is without jurisdiction or authority to sentence a defendant or

when that defendant’s term of imprisonment or restraint has expired. Archer v.

State, 851 S.W .2d 157 , 164 (T enn. 19 93). Th ere is noth ing in this record that

-3- demonstrates that the convicting co urt was without jurisdiction or authority to

sentence the Defe ndant to serve tw enty ye ars in confinement for the convictions

which he received on July 1 4, 198 1. The re is furth er noth ing co ntaine d in this

record which demonstrates that the Defendant’s term of imprisonment or restraint

has expired. Therefore, we cannot conclude that the trial court erred by denying

the De fendan t habea s corpu s relief.

The judgment of the trial court is affirmed.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ GARY R. WADE, JUDGE

___________________________________ J. CURWOOD WITT, JR., JUDGE

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