Montgomery v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: September 10, 1997
• Docket: 03C01-9507-CC-00189
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED September 10, 1997 MARCH 1996 SESSION Cecil Crowson, Jr. Appellate C ourt Clerk

EUGENE MONTGOMERY )C.C.A. No. 03C01-9507-CC-00189 ) Appellant, ) Carter County V. ) ) Hon. Arden L. Hill, Judge STATE OF TENNESSEE ) )(Post-Conviction Relief) Appellee,

FOR THE APPELLANT: FOR THE APPELLEE:

A. James Andrews Charles W. Burson Attorney at Law Attorney General and 606 W. Main St. Michael J. Fahey Knoxville, Tn. 37902 Assistant Attorney General 450 James Robertson Parkway Nashville, Tn. 37243

Kenneth Baldwin Assistant District Attorney 900 E. Elk Ave. Elizabethton, Tn. 37643

OPINION FILED: ______________________

REVERSED AND REMANDED

CHARLES LEE, Special Judge OPINION

This is an appeal as of right from a judgment of the trial court summarily

dismissing the appellant's petition for post-conviction relief. The appellant

originally filed a writ of habeas corpus. The trial court apparently treated the

writ as a petition for post conviction relief and dismissed the petition without

appointing counsel or conducting an evidentiary hearing. The judgment of

the trial court is reversed. This matter is remanded to the trial court for an

appointment of counsel and an evidentiary hearing.

The appellant filed a suit for habeas corpus relief on October 29, 1992.

The petition alleged that the appellant entered into a plea bargain agreement

to settle an aggravated assault charge. According to the petition, the

appellant and the State agreed his sentence for aggravated assault would run

concurrently with a parole violation. The appellant asserts that he should be

granted relief from his conviction because his sentence is illegal and the

judgment is void.

The state filed an answer urging the trial court to consider the matter

as a post conviction petition, generally denying the allegations of the petition

and alleging no deprivation of a constitutional right.

2 The trial court dismissed the matter referring to the action as a "post

conviction writ" simply stating that the "... petitioner has not stated a cause of

action that has not been already in effect..."

It is unnecessary to address whether this matter should be treated as

a habeas corpus or post conviction to resolve the issues. We note, however,

that in this jurisdiction a trial court has the discretion to treat a suit for habeas

corpus as a suit for post-conviction relief if the remedy is adequate and

appropriate to resolve the grounds raised. Tenn. Code Ann. § 40-30-108.

This Court has held that a trial court should treat a habeas corpus suit as a

suit for post-conviction relief when the pleadings of the parties do not comport

with the requirements applicable to habeas corpus suits, Trolinger v. Russell,

1 Tenn. Crim. App. 525, 446 S.W.2d 538 (1969); or the limited relief in

habeas corpus suits prevents an adjudication on the grounds raised by the

petitioner, but the grounds are cognizable in a post-conviction suit. See

Porter v. State, 2 Tenn. Crim. App. 437, 455 S.W.2d 159 (1970); Richmond v.

Russell, 2 Tenn. Crim. App. 345, 454 S.W.2d 155 (1970).

The trial court was authorized to treat this matter as one for

post-conviction relief. The judgments entered by the trial court, if illegal, are

voidable as opposed to being void. See State v. Burkhart, 566 S.W.2d 871

(Tenn. 1978); Henderson v. State, 220 Tenn. 520, 419 S.W.2d 176 (1967).

The writ of habeas corpus will not "lie to liberate a person imprisoned under a

voidable judgment as opposed to one which is void." State v. Henderson, 640

S.W.2d 56, 57 (Tenn. Crim. App. 1982).

The resolution of this matter is controlled by Henderson v. State, supra.

In Henderson the defendant committed a robbery with a deadly weapon while

on parole for a previous conviction. The parties entered into a plea bargain

3 agreement. It was agreed that the defendant would plead guilty to simple

robbery, the maximum sentence would be five (5) years, and the sentence

would be served concurrently with the previous sentence. Later, the

appellant challenged the validity of his conviction on the ground the sentence

was illegal. It was conceded that the trial court was powerless to order that

the sentences would be served concurrently as the applicable statute

mandated that the sentences must be served consecutively. The trial court

set aside the conviction following an evidentiary hearing. The State appealed

the judgment. In affirming the judgment of the trial court, the Supreme Court

said:

After having thought about the matter, heard able arguments, read the record and authorities, we agree that the trial judge was correct in his ruling herein.

******

Here, there was no official misrepresentation. The argument is made as to what they thought would happen, and it just was not right. When it appears that this is true the accused should be allowed to withdraw his plea.

220 Tenn. at 525, 419 S.W.2d at 178, 179.

Upon remand the appellant shall be given the opportunity to amend his

pleadings with the guiding hand of counsel. Thereafter, the trial court shall

conduct an evidentiary hearing on the grounds raised in the appellant's

pleadings.

_____________________________ Charles Lee, Special Judge

4 CONCUR:

____________________________ Paul G. Summers, Judge

____________________________ Joseph M. Tipton, Judge