# FILED January 28, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE NOVEMB ER SESSION, 1998 RONALD DEE WATT, ) C.C.A. NO. 03C01-9609- CR-00343 ) Appe llant, ) ) ) ROANE COUNTY VS. ) ) HON. E. EUGENE EBLEN STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Habeas Corpus)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF ROANE COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : KENNETH F. I RVINE, JR. JOHN KNOX WALKUP 606 W. Main Street, Sui te 350 Attorney Generaland Reporter Knoxvill e, TN 37901-0084 MICH AEL J . FAHE Y, II Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 CHARLES E. HAWK Distri ct Attor ney General ROGER DE LP Assistant Distri ct Attor ney General P.O. Box 703 Kingston, TN 37763
OPINION FILED ________________________ REVERSED AND REMANDED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defendant, Ronal d Dee Watt, appe al s as of ri ght from the Roane Coun ty Criminal Court’s dismissa l of hi s petiti on for habeas corpus relief. The issue on appeal is whet her the tr ial co urt erredby summarily di smissing the petiti on w ithout a ppointing couns el or cond ucting an evidentiary hearing . We
reverse the order dismissi ng the petit ion and remand thi s case for f urther proceedings.

We will first attempt to sum marize, from the record before u s, the eve nts givin g rise to the Defendant’ s petiti on for wri t of habeas corpus. On A pril 17 , 19 80, the Defendant pl eaded guilt y to one count of armed robbery with a sentence of ten y

ears, t wo counts of conceal ing stol en property with a sentence of three year

s on each count, and two counts of arson with a

sen tence o f one yearon e ach count. A ll sentenc es were ordered to be serv ed con secutive to each other, for an effective s entence of e ighteen years. T he sentenc es were ordered to be s erved conc urren tly with a sen tence the De fenda nt was serving in the federal pen itentiary for bank robb ery.
The Defendant was subsequently transferred back to federal cu stody for the servi ce of h is sen tences . Atsome point ther eafter he was r

eleased on pa role from f ederal custody. Subsequent to being rel eased on parole, the Defen dan t
was apparently

charged with ad di tional fede ral crimes and wa s returne d to federal custody. By

order enter

ed on January 16, 1 992, the C riminal Cour t for Roane Coun ty, Tenn essee issued a capias fo r the arres t o f the Defendant “fo r-3-

service of the port ion ofhis sentence stillowed to the Tennessee Department of Correc tion.”

On May 14, 1996 the Defendant f iled apetiti on for wri t of habeas corpus i n the CriminalCourt for Roane Count y. The peti tion all eged that he was an i nmate in the federalpenitenti ary. He all eged that he was suf fering col lateral consequences from b eing ille gally an d unc onstitu tionally detained by v irtue of the capias issued by t he Roane County CriminalCourt on January 16, 1992 . I n a ddition to his al legations of vari ous constit utional violat ions, th e Defenda n t alleged that his

Tennessee sent ence was illega l and void b ecause he was sentenced pursuantto “an agreement between hi s court-appoi nted counsel and attorney genera l that [the trial cou rt] was powerless to orderunder Tenn. Code Ann. § 3 9-1-703 .”

The State fi led a mo tion to di smiss the habeas corpus petit ion on the grounds (1 ) that T enne ssee Code Anno tated § 29-21 -102 e xclude d pers ons in federal custody fr

om the benefi t of State proceedingsfor a writ of habeas corpus, and (2) that the trial court had n o auth ority to o rder th e Def enda nt’s release fr om federal custody. The tri al court issued an or der dismissi ng the peti tion on th e grounds that it

failed to state a

cause of acti on for whic h relief c ould be granted because the Defendant was in federalcustody and § 29- 21-102 “excl udes persons in federalcustody fr om benefit of

fili ng wr it of habea s corpu s in State proceeding . . . [and] . . . State of Tenne ssee has no authority to or der release from federal cu stody even i f grounds for relief existed. ” It i s from this order of dismissal that the Defendant appeals.-4- The trialcourt dis missed the habeas corpus peti tion because t he Defendant is in federal c ustody. Tennessee’s habeas corpus law is statutory and begins wit h the foll owing provi sion:

Any person impri soned or restr ained of hi s libert

y, under any pretense whatsoever, exceptin cases specif ied in § 29- 21-102, may prosec ute a writ of habe as corp us, to inquire into t he cause of such imprison ment a nd restra int. Tenn
. Code Ann. § 29-21-101. The exception r eferred to in the above sectio n provides as foll ows:

Persons committed or detained by v irtueof process i ssued by a court o f the U nited S tates, o r a judg e there of, in cases where such judges or courts hav

e exclusi ve juri sdicti on under the laws o f the United States, or

have acquired ex

clusive jurisdi ction by t he commencement of suits in such court s, are not en titl ed to the benefits o f this writ. Id. § 29-21-102.
We read this statute to c learly provide t hat a State j udge has no authority to order the r

elease of

a person who has been committ ed or is bei ng detained, imprisoned, or restraine d of his liberty by virtue of an order of a federal co urt. In the petiti on filedherein, however, the Defendant is seeking t o test thevalidi ty of the restrai nt on his l iberty being caused by the capias for his arrest

issued by t he Criminal Court of Ro ane Cou nty, Ten nessee. We do not believe that the Defe ndan t’s s tatu s as a federal prisoner deprives the Cr iminal Court of Roane Coun ty of any a uthority to in q uire into the cause of t he restrai nt on the Defe ndan t’s liberty as a result of the capias f

or the Defendant ’s arrest which was issued by the Roane County C riminal Court in a p revious order. W e therefore
conc lud e that the t rial cour t was in err

or by summarily

dismissing t he habeas corpus pe tition on the ground s that the Defen dant was a federal prisoner.-5- Although it is notentirely cl ear in the Defendant’s pro se habeas corpus petiti on, the Defendant pri marily ar gues thathis sentence i s ill egal because it was ordered to be served concurrentl y with a federal senten ce when the law requir ed that the sentence b e served under t he control and supervisi on of the State of Tennessee. At the ti me the Defendant was convi cted of armed robbery, robbe ry accomplished by the use o f a dea dly weapon was a Class X fel ony. Tenn. Code Ann. § 39-1-702 (r

epealed 1989). The law provided that a sentence for a Class X felony would “[t]erminate or expire only after service o f the entire sentence, day forday, under the control and su pervision of the state o f Tennes see.” Id. § 39-1- 703 (repealed 1989) . The Defendant quest ions whether t he trialjudge had the legal authority to orde r his sentence to run concurrently with the federal sentence
or whether h e was requi red by t he Class X felony l aw t o order the Tennessee sentences to be served in the state penitentiary, presu mably after he was released from federal custody.

Tennessee courts have hel d that wh en the law requires the trial cour t to impose a consecutive sentence on a defendan t convicted of a cri me committed while on work releas e, the trial court is without jurisdiction or autho rity to enter a judgment against a defendant for a concu rrent sen tence. Henderson v. State ex rel. Lance , 419 S.W .2d 176 (Te nn. 1967); Taylor v. Morgan , 909 S.W.2d 17, 20 (Tenn. Crim. A pp. 199 5); see also Archerv. State , 851 S.W.2d 157, 163 (Tenn. 1993) (noting t hat because the t rial court in Lance was witho ut autho rity to render
a concurrent se ntence wh en statutorily re qu ired to make the sentence consecutive, the judgm ent w as fa cially void , and a writ of ha beas corpu s cou ld issue to release Lance from his guilty plea).-6- We also note t hat the Defendant ’s effective eighteen-year sentence was imposed on April 17 , 1980. The sente nce w as ord ered to be se rved co ncurre ntly with a fede ral sen tence . Assu ming that the conc urren t sente nce w as a le ga l sentence, it becomes obvi ou s that more th an eighteen year s has now passed since the sentence was i mposed. Although t here may well be r easons why the sentence has not expi red, the D efend ant arg ues o n app eal tha t on its fa ce it appears that t he sentence has expi red.

Based on our revi ew of the r ecord and ou r underst anding of

the law, we do not believe t hat the trial j udge should have di smissed the Defendant’s pet ition f or habeas corpus reli ef without appointi ng counsel and all owing the Defendant the opportu nity to present his peti tion on the merits. If the Defendant’ s eighteen-y ear sentence, ordered to be se rved co ncurre ntly with a fede ral sentence, is an i llegal sentence, it is clear that the court h as the autho rity to cor rect it at any ti me, even if it has otherwisebecom e final. State v. Burkha rt , 566 S.W.2d 871, 873 (Tenn. 1978). An illeg al sen tence is a nullity. Id. If thesentence was il legal, t he status of the prosec ution i n Roane County would apparent ly ret urn to the se ntencing stage. At that st

age, furt her proceedings on the Defendant’ s plea would be governed by Rule 11 of t he Tennessee Rules of Cri minal Proced ure. See Taylor v. Morgan , 909 S.W .2d 17, 20 (T enn. Crim. A pp. 1995).

We also point

out that even if t he Defendant can establish t hat he received
an illegal sente nce, he may ne vertheles s be ineligib le fo r h abeas corpus relief. Obviously, if the Defendant is l awfully confined under

authorit y of a federal court order, the Tennessee court may not order hi m discharged fr om custody . If his sentence is il legal and t hus void, he remains subject to his or iginal pending-7-

charges in Roa ne Co unty. If his sente nce h as exp ired, he may w ell rem ain i n lawful custody as a federal pri soner. In an y event, we believe t he Defendant may proceed with his

habeas corpus proceeding to determine whether his Tennessee sentence is i llegal or has expir ed.

The judgment of the trial court dis missing the Defendant’s habeas corpus petiti on is re versed . This case i s remanded to the t rial cour t for f urther proceedings.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JAMES CU RWOOD WITT, JR. , JUD GE

___________________________________ L.T. LAFFER TY, S ENIOR J UDGE