# FILED
August 20, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JULY 1998 SESSION

SAMUEL L. A

DAMS, )

) C.C.A. No. 01C01-9707- CC-00301 Appellant, ) ) Hickman County V. ) ) Honorable Corne lia A. Clark, Judge ) STATE OF TENN ESSEE, ) (Habeas Corpus) ) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: Samuel L. Adams, Pro Se John Knox Walkup T.C.I.P. Attorney General & Reporter Route 1 Only, TN 37140-9709 Timothy F. Behan Assistant Attorney Gener al John H. Henderson 425 Fifth Avenue North District Public Defender Nashville, TN 37243-0493 Elaine B. Beeler Joseph D. Baugh, Jr. Assistant District P ublic Defender District Attorney General P.O. Box 68 Franklin, TN 37065-0068 Ronald L. Davis Assistant District A

ttorney General P.O. Box 937 Franklin, TN 37065-0937

OPINION FILED: ___________________
AFFIRMED PAUL G. SUMM ERS, Judge

O P I N I O N-2- The appellant, Samuel Adams, filed a petition for habeas corpus relief in the Hickman County Cir cuit Court, alleging

that his sentences had expi red. After a hearing, the court dismi ssed the petition. The issue on appeal is whether the appella nt’s se ntences

have ex pired, entitli ng him t

o relie f.
In October 1989, the appellant pled guilty to robbery with a deadly weapon. The offense occurred in April 1982. He was sentenced to ten years in the Department of Correction. The appellant also pled guilt y to aiding and abetting second degree murder. He was sentenced to ten y ears, to run concurrently with his sentence for robbery with a deadly weap on. The appellant began serving his sentence in April 1990. He escaped from custody in September 1991. He was retur ned to custody in April 1994. The appellant was sentenced to one year for escape,to run consecutively to his two ten-year sentences.

In Janua ry 1997 , the appellant f iled a p etition for habea

s corpu s relie

f, alleging that his sentences had expired. The appellant argued that both of his ten-year sentences exp ired at the same time because the c ourt ordered the sentences to run concurrentl y. The appellant also arg ued that he thought that he was pleading guilty to the lesser included offense of armed robbery, not robbe ry with a deadly weap

on. He further alleged that w hen he pled guilty, he w as unaware that armed robbery was a Class X felony

. After a hearing, the court dismissed the petition. The cour t found that the appellant’s sentence for aidi ng and abetting second degr ee murder had expired because of sentencing credits. The court found that the appellant’s conviction of robbery committed with a deadly weapon was a Class X felony. The court found that the applicable la w required a defendant w ho was convicted of a Class X felony to ser ve his sentence day for day. The court further found-3- that since the appellant pled g uilty in 1989, his ten- year sentence had not expired. With regard to the appellant’s claim that he thought tha t he was pleading guilty to something other than robbery with a deadly weapon, the court held that the voluntariness of the appellant’s guilty plea was not a cognizable habeas corpus claim. We af firm the judgment of the trial court in all respects.
Habeas corpus relief is av ailable only when i

t appears upon the face of the judgment or the record of the proceedings upon which the judgmen t is rendered that a convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant's sentence of impr isonment or other restraint has expired. Archer v. State , 851 S.W.2d 157, 164 (Tenn. 1993).
The appellant committed robbery with a deadly weap on in April 1982. Under the statutes in effect at the time of the offense, robbery with a deadly weapon was a Class X felony. Tenn. Code Ann. § 39-3901( c) (Supp. 1981). A sentence for a Class X felony is not subject to reducti on for any type of sentencing credit. Tenn. Code Ann. § 39-5403(2) (Supp. 19 81). The sentence is not subject to early

release. The sentence expir es only after servic

e of the entire sentence day for day . Tenn. Code Ann. § 39-5403(3).
As the state argues, the appel lant’s sentence for robbery committed with a deadly weapon does not ex pire with his ten-y

ear sentence for aiding and abetting second degree murder because the robbery sentenc e must be served day for day. The appellant pled guilty to armed robbery in 1989. From the face of the conviction, ten year s had not elapsed when he filed hi s petition in 1997. His sentence had not expir ed. Moreover, the appell ant escaped for over two a nd one-half years.-4- Whether the appellant voluntarily pl ed guilty to robbery committed with a deadly weapon is not a c ognizable habeas corpus claim. Archer , 851 S.W.2d at 162-64.
The appellan t is proceeding pro se on appeal. We have carefully considered his appellate brief. W e find no merit to the appellant’s claim that his rights against ex post factolaws have been violated. In this case, such a claim is not a cognizable habeas co rpus claim, nor is his claim that the Department of Correction miscalculat

ed his sentence in viola tion of the law.
The judgment of the trial court is AFFIRMED.

_____________________________ PAUL G. SUMMERS, Ju dge-5- CONCUR:

__________________________ DAVID G. HAYES, Jud ge

__________________________ JERRY L. SMITH, Jud ge