IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 26, 2011

GARY WAYNE CALHOUN v. DAVID MILLS, WARDEN

Direct Appeal from the Criminal Court for Morgan County

No. 2010-CR-48 E. Eugene Eblen, Judge

No. E2010-01022-CCA-R3-HC - Filed February 6, 2012

The Criminal Court of Morgan County granted habeas corpus relief to the Petitioner, Gary

Wayne Calhoun, for convictions in the Criminal Court of Sullivan County for “bringing

stolen property into the State valued in excess of $200.00” in case number 21,478 and for

“simple robbery” in case number 22,532. The Respondent, David Mills, Warden, has

appealed. After a thorough review of the record, we reverse the judgment of the habeas

corpus court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS, J., joined. DAVID H. WELLES, SP.J., not participating.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney

General; and Russell Johnson, District Attorney General, for the appellant, the State of

Tennessee.

Dan R. Smith, Johnson City, Tennessee, for the appellee, Gary Wayne Calhoun.

OPINION

The case sub judice is not Petitioner’s first habeas corpus proceeding concerning

Sullivan County case numbers 21,478 and 22,532. See Gary Wayne Calhoun v. Howard W.

Carlton, Warden, No. E2005-00001-CCA-R3-HC, 2006 WL 433680 (Tenn. Crim. App. Feb.

23, 2006) reh’g denied (Calhoun I). In Calhoun I, Petitioner appealed from the trial court’s

dismissal of his habeas corpus petition challenging the Sullivan County convictions in

addition to two convictions in Washington County, and one conviction in Carter County.

This Court reversed the trial court’s judgment in the Carter County conviction but affirmed
the dismissal of the habeas corpus petition as to the Sullivan County and Washington County

convictions. Id. at *5.

Pertinent to the issue presented by the State in the instant appeal, this Court in

Calhoun I set forth the following facts regarding the sentencing structure of the Sullivan

County convictions:

On March 23, 1988, the [petitioner] pled guilty in Sullivan County to one

count of bringing stolen property into the state, and the trial court sentenced

the [Petitioner] to seven years incarceration. On May 31, 1988, the

petitioner pled guilty in Sullivan County to one count of armed [sic]

robbery, and the trial court sentenced him to fifteen years, ordering the

[petitioner] to serve the seven-year sentence imposed on March 23, 1988,

consecutively to the fifteen-year sentence imposed on May 31, 1988.

Calhoun I at *1

There are no transcripts of the guilty plea hearings in the record on appeal. There are,

however, two judgments concerning Sullivan County case number 21,478 (conviction of

bringing stolen property into the State with a sentence of seven years) in the record. Neither

judgment is marked as an “amended” judgment. The first “case number 21,478” judgment

has on its face at the top information that it was entered of record on June 6, 1988. The

second “case number 21,478” judgment has, in the same location, information that it was

entered of record on November 29, 1988. We will refer to these two “case number 21,478”

judgments as the “June” judgment and the “November” judgment. Most of the information

on the two judgments is identical. However, in the June judgment, in the section designated

for information regarding consecutive or concurrent sentencing, no other conviction is

mentioned and “n/a” is typed in the blank space. In the November judgment, the following

is set forth in the section regarding consecutive or concurrent sentencing: “6. This sentence

shall be served [ ] [consecutively to] [sic] sentence(s) in the following [cases] [sic] and/or

[counts] [sic] 22,532 (15 yrs) (Armed [sic] Robbery) Sullivan Co. Crim. Ct.”

Both judgments regarding case number 21,478 show that Petitioner pled guilty to the

offense on March 23, 1988, and the sentence imposed was seven years. The June judgment

gave Petitioner 100 days of jail credit without specificity of the dates, but the November

judgment gave only 49 days of jail credit, with the specific dates listed. Each judgment

showed that Petitioner was “sentenced for an especially aggravated offense.” The June

judgment was silent as to the basis of this classification, but the November judgment

explained this designation by stating “(On Probation out of U.S. District Court, Roanoke,

VA).”

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There is only one judgment in the appellate record regarding case number 22,532.

That judgment shows that Petitioner was indicted for the offense of armed robbery. The

judgment specifically states Petitioner pled guilty to simple robbery on May 31, 1988. The

judgment was entered of record on November 29, 1988. The imposed sentence of 15 years,

for an especially aggravated offense, was ordered to be served consecutively to “21,478 (7

years).”

From the record, we conclude that an amended judgment in case number 21,478 was

entered on November 29, 1988, the same date that the judgment in case number 22,532 was

entered. The judgments on their face reflect properly imposed consecutive sentences. We

also note that the appellate record contains an order of the Criminal Court of Sullivan County

which pertains to both case number 21,478 and case number 22,532. The order sets forth that

Petitioner could serve his sentences in the Johnson County Jail. Pertinent to the case sub

judice this order, entered July 14, 1989, reflects that the sentences had been ordered to be

served consecutively.

As noted above, in Calhoun I, this Court reversed the trial court and granted habeas

corpus relief to the Petitioner on his Carter County conviction. The State filed a lengthy

petition to rehear, which was denied. Some of the language of this Court’s order denying the

State’s petition to rehear forms the basis of Petitioner’s argument that he is entitled to habeas

corpus relief in the case sub judice. The order states as follows:

ORDER

The state has petitioned this court for a rehearing. It claims this

court erred in concluding that the petitioner’s Carter County Criminal Court

sentence was illegal and therefore void. The state claims this court erred

because (1) the petitioner is under a valid sentence from Sullivan County

until 2010 and is not entitled to habeas corpus relief on his Carter County

Criminal Court sentence until then, and (2) McClaney v. Bell, 59 S.W.3d

90 (Tenn. 2001) (authorizing a withdrawal of a guilty plea where the

bargained for sentence is subsequently declared illegal), is bad law and

“should be overruled.”

Initially, we note that in the opinion filed in this case, we stated that

“based upon Thompson and Arnold, the language in the petitioner’s March

23, 1988 judgment of conviction ordering the sentence in that case to be

served consecutively to the May 31, 1988 sentence was surplusage” and

“without efficacy.” (Emphasis added). Therefore, the defendant’s Sullivan

County sentences expired in 2003, and pursuant to the Carter County

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Criminal Court judgment, he is under valid restraint of freedom until 2009

based upon the six-year probated portion of his ten-yearsentence, which we

held illegal.

Concerning this court’s remedy pursuant to McClaney, the state is

asking this court to overrule McClaney, which is beyond this court’s

authority. In consideration of the foregoing, it is hereby ORDERED that

the state’s petition to rehear is DENIED.

In the habeas corpus court, and on appeal, Petitioner asserts that his Sullivan County

convictions in case numbers 21,478 and 22,532 expired in 2003, and that he has been

unlawfully detained by the “Tennessee Probation and Parole Board” in 2008 for a violation

of parole in those cases, based upon new convictions from offenses charged in Virginia in

December 2006. Petitioner asserts that the State did not seek review from this Court’s order

on the petition to rehear in Calhoun I which stated that Petitioner’s sentences in Sullivan

County cases number 21,478 and 22,532 had expired in 2003. Thus, Petitioner argues, this

court’s order is final and is binding on the issue of whether the sentences have expired.

In the habeas corpus court the State filed a motion to dismiss based upon the assertion

that Petitioner’s sentences had not yet expired.

In granting relief to Petitioner, the habeas corpus court stated in pertinent part:

The Petitioner has demonstrated by way of a judicial proceeding by

a preponderance of the evidence that he is being unlawfully restrained of

liberty on his sentences imposed by the Criminal Court of Sullivan County

in case numbers 21478 and 22532. In light of the opinion of the Court of

Criminal Appeals on the petitioner’s prior habeas corpus petition, as well

as that court’s order denying a petition to rehear, the court finds that these

two sentences ran concurrently with each other and have now expired.

ANALYSIS

Petitioner, through counsel, brought the instant proceeding before the habeas corpus

court pursuant to Tennessee Code Annotated section 29-21-104 which states as follows:

29-21-104. Issuance of writ without application. – Whenever any

court or judge, authorized to grant this writ, has evidence, from a judicial

proceedings, that any person within the jurisdiction of such court or officer

is illegally imprisoned or restrained of liberty, it is the duty of such court or

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judge to issue, or cause to be issued, the writ as aforementioned, although

no application be made therefor.

Tenn. Code Ann. § 29-21-104.

Petitioner argues that this Court’s order on the petition to rehear in Calhoun I

determined conclusively that the sentences from his Sullivan County convictions in case

numbers 21,478 and 22,532 were to be served concurrently and that the sentences expired

in 2003. Petitioner argues this despite the fact that in his appellate brief he acknowledges

that the judgment in Sullivan County case number 22,532 (15-year sentence for simple

robbery) reflects that sentence was to be served consecutively to Sullivan County case

number 21,478.

The issues in Calhoun I, as to the Sullivan County convictions, were whether the

judgment in case number 21,478 was void because it was ordered to be served consecutively

to a sentence not yet imposed, and whether the judgments in that case and in case number

22,532 were void because the State failed to file a notice to seek enhanced punishment.

Calhoun I at *1.

The State did not initially address in its arguments on appeal that Petitioner was not

entitled to relief on the Carter County conviction because he had not yet completed service

on the Sullivan County convictions, one of the issues brought up in the petition to rehear.

Instead, the State argued as to the Sullivan County convictions that the specified language

in the judgment of case number 21,478, regarding consecutive sentencing, was surplusage

and did not render the judgment void. Furthermore, the State argued that a claim that failure

to file a notice of intent to seek enhanced punishment was not a cognizable claim for habeas

corpus relief.

This Court agreed with the State’s argument and made its ruling accordingly.

Calhoun I at *3.

The Calhoun I Court denied the State’s petition to rehear. The language in that order

stating that the sentences in the Sullivan County case numbers 21,478 and 22,532 were

ordered to be served concurrently, was erroneous as shown by the record in this case. We

do not fault the habeas corpus trial court in this case for ruling in a manner consistent with

what a panel of this Court previously concluded in the order denying a rehearing in Calhoun

I. In fact, a lower court is generally obligated to follow the holdings of a higher court, even

if erroneous. See State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995). However, this Court can

recognize but decline to follow rulings that were clearly erroneous based upon the appellate

record. See State v. Jefferson, 31 S.W.3d 558, 560 (Tenn. 2000) (citing Memphis Publg. Co.

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v. Tennessee Petroleum Underground Storage Tank Bd., 975 S.W.2d 303 (Tenn. 1998). To

the extent that the Calhoun I opinion and order denying rehearing suggest that the sentences

in cases 21,478 and 22,532 were imposed concurrently, they are clearly erroneous based upon

the appellate record in the present case. This court is not bound by Calhoun I. The Petitioner

is not entitled to habeas corpus relief on his claim that Calhoun I conclusively determined

that the sentences in cases 21,478 and 22,532 were to be served concurrently. Accordingly,

we must reverse the habeas corpus trial court’s order granting relief to Petitioner in this case.

CONCLUSION

The judgment of the habeas corpus trial court, which granted habeas corpus relief to

Petitioner in Sullivan County case numbers 21,478 and 22,532 is reversed.

_________________________________

THOMAS T. WOODALL, JUDGE

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