### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A pril 19, 20 05
KENT OUSLEY v. D AVID MILLS, WAR DEN
Appeal from the Circuit Court for Lauderdale County No. 5894 Joseph H. Walker, Judge

No. W2004-02078-CCA-R3-HC - Filed June 17, 2005

The petitioner, Kent

Ousley, appea

ls the trial court’s denial of his petition for habeas corpus relief. The single

issue pre sented f

or revie w is wheth er the pe

tition was properl y dismissed. The judgment is affirmed.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

G ARY R. W ADE , P.J., deliveredthe opinion of the c ourt, in which J OSEPH M. T IPTON and A LAN E. G LENN , JJ., joined. Kent Ousley, He

nning, Tennessee, pro se.

Paul G. Summers, Attorney Gene ral & Reporter; Rachel E. Willis, Assistant Attorney General; and Elizabeth T. Rice, District Attorney Ge neral, for the appellee, State of Tennesse e.
OPINION

OnApril 5, 1982, the petitioner , who ent ered pleas of guilty to two counts of first degree bu rg la ry, two counts of second degree burg lary, and one

count of larceny

over two hundred dollars,
was sentenc ed by

the Shelby

County Criminal Co

urt to con curren t prison te rms of not les s than six
nor more than ten y

ears. Thereafter, on November 11, 1983, the petitioner, w hile apparently on a formof work r

elease from the D epartme

nt of Corr ection, c ommitted a

n agg ravate d rape, a

Class X fe lo ny, in Shelby County . He was convicted on March 16, 1984 and received a forty

-year sentence. The 1984 j udgmen

t, which in

cluded 12 6 day s of jail credit, did not affir matively indicate whether the sentence was to be served concur rently or conse cutively to the 1982 sentence

. OnAugust 16, 2004, the petitioner filed this petition for writ of habeas corpus asser ting that because he was on work release for the 1982 convictions when he committed the aggra vated rape, the sentenc e in

that cas e should have been ordered to be served c onsecutively to his prior sentenc e. He also claimed that the 1 984 judgment is illegal because the trial court fa iled to indicate on the judgment form whe

ther the sentenc e was to b e concu rrent or consecu tive to the 1982 sentence. As1 W hile the petitioner also mad e reference to T ennessee C ode A nnotated se cti on 40-35-209(e)(15 ), whi ch places

a duty upon the distr ict att orney general to complete the uni form judgm entdocum e nt indicating, among other things, whether the sente nce is to be ser ved conc urre ntl y or c onsec uti vely , this is sue w as not addressed on app eal and it i s our view tha t this pro vision w ould not en title the pe titioner to habe as co rpus re lief.
-2- support for his argument, the petitioner pointed to Rule 32 of the Tenne ssee Rule s o f Criminal Procedure, which pe

rtains tothe circumstances under which sentences are to be served c oncurre

ntly
or consecu tively , and thiscourt' s r

uling in Taylor v. Morg an , 909 S.W.2d 17 (Tenn. Crim. App. 1995). 1 Citi ng Taylor , the peti tioner a sserted

that the 1 984 judg

ment was i llegal

because it provided that the sente nce be se rved con curren tly t o the 1982 sentence when, be cause he was on work rele ase at th e t im e o f h is co nv ic ti on , c on se cu ti ve se nt en ci ng wa s m an da to ry.
The trial court reviewed the pleadings, dete rmined that the sentence had not expired, and concluded

that the terms of Rule 32 of the Tennessee Rules of Criminal Pr

ocedure did not manda

te consecutive sentencing for a crime committed on work re lease unless it was committed during an
esca pe. After determining that a sentence tha t does not require consecutive sentencing must be deemed concurrent to a prior sentence, the trial c ourt ruled that the 1984 sentence was not illega l, denie d habe as corp us rel ief, an d dis miss ed the petit ion wi thou t a hear ing.

Inthis appeal, the petitioner argues that beca use consecutive sentencing was mandatory u nder Rule 32(c) of the Tennessee Rules of Criminal Procedure, the 1984 judgment, which was silent on the issue of service related to the 1982 sentence, is illegal. The petitioner c oncludes that because the 1984 judgment is illegal under Rule 32(c )(3) an

d becau se his 1982sentenc e is expire d, he is entitled to release. The petitioner also argues that the 1984 sentence is illegal because the ruling in Taylor provides that consecutive sentencing is mand atory wh en an offender commits a felony while on work release. In response, the state submits that the 1984 sentence is not illegal because the judgm ent does not indicate that the petitioner was on work release a nd is not otherwise invalid on its face.

The law governing habeas c orpus is well settled. Article 1, section 15 of the Tennessee Constitution provides that "the privilege of the writ of Habe as Corpus shall not b e suspend ed, unles s when in case of rebe llion or inv asion, the Genera l Assembly

shall dec lare the

public safety

requires it." Tenn. Con st. art I , § 15. Although the writ of ha

beas cor pus is cons tit

ut ionally guara nteed, it has been regulated

by statute for more

than a hundred years. See Ussery v. Ave ry , 222 Tenn. 50, 432 S.W.2d 656, 657 (1968). Our current code provides that "[a]ny person imprisoned or restrained of li be rt y, under an

y pr etense w hatsoeve r, except incases specific

in § 29-21- 102, may

prosecu te a writ of habea s corpus, to inquire into the cause of such imprisonment and restraint." Tenn. Code Ann. § 29-21-101. The burden, however, is on the petitioner to estab li sh by a preponderance of the evidence that the challenged judgment is void or that a term of imprisonment has expired. State ex rel. Kuntz v. Bomar , 214 Tenn. 500, 504, 381 S.W.2d 290, 291-92 (1964). H abeas c orpus re lief is availab le only when it app ears on the face of the judgment or the record of the proc eedings upon whichthe judgment is rendered that a court lacke d jurisdiction or authority to sentence

or that the sentence has expired. Archer v. State , 851 S. W.2d 157, 16 4 (Tenn. 1993); State ex rel. Wade v. Norvell , 1 Tenn. Crim. App. 447, 443 S.W.2d 839 (1969). A petitioner cann ot attack a facia lly valid-3-

convictionin a habeas corpus proceeding

. Potts v. Stat e , 833 S. W.2d 60, 62 (Tenn. 1992). The policy behind limiting habea s corpus relief to facially void convictions is "grounded on the strong presumptionof validit

y that attac

hes to final judgments of courts of gene ral jurisd iction." State v. Ritchie , 20 S.W.3d 624, 630 (Tenn. 2000). If the a llegations in a petition for habeas corpus relief failto state a cognizable claim, the trial court may summarily di smiss the petition. Passarella v. State , 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). Rule 32(c )(3), wh

ich gov erns man

datory consecu tive sente ncing, provides

as follow s:
Where a defendant is convicted of multiple

offense s from one

trial or where the defendant has additional sentences not ye t fully served as the result of convictions in the same or other court and the law requires consecutive sentences, the sentence shallbe consecutive w

he ther the

judgmen t explicitly

orders or not. The rule

shall ap pl y: (A ) t o a se nt en ce fo r a fe lo ny c om mi tt ed wh il e o n p ar ol e f or a f el on y; (B) to a sentence for esca pe or for a felony

committed while on escape; (C) to a sentence for a felony where the defendant wasreleased on bail and the defendant is convicted of both offenses; and (D) any other ground provided by law. Tenn. R. Crim. P. 32(c)(3) (emphasis added).

As indicated, the trial court ruled that Tennessee Rule of Criminal Procedure 32(c) (3) did not compel a consecutive sentence for a prisone r on work release. While acknowled gin g that th

is portion of the rule contemplated a consecutive sentenc e for a felony offender on parole, escape, or bail, the trial court found no specific provision requiring a consecutive sentence for one on work release, where the prisoner con tinues to earn credits against his prison term. While there is no specific reference to a work re lease classification in Rule 32(c)(3), subsection (D) o f the r ule provides for consecutive sentencing on the basis of " any other ground provided by

law." T enn. R. Crim. P. 32(c)(3)(D). As will be discussed more f ully below, t

his court has interpreted the provisions of Tennessee Code Annotated section 40-28-123 to require consecutive sentencing for those who commit a felony while on wor k release. See Taylor v. Morg an , 909 S.W.2d 17 (Tenn. Cri m. App . 19 95) . In consequence, it is our vie

w that the provision s of Rule

32 would no t entitle the petitioner to habeas corpus relief.

The petitione

r also ar gues tha t his 1984 se

ntence i s il le gal because of the ruling in Taylor , wherein this court addressed a similar situation. Tay lor, who had received a

prior life sentence that had been commuted

to twenty y

ears and one day, rec eived a twenty -year sentence for a bank robbery committed

while on a work release progr am for the prior conviction. He filed a petition for habeas corpus relief arguing that the rob bery sente nce, which was specifically ordered to be served
concurr ently to the prior sentence, was in direct contravention of Tennessee Code Annotated section 40-3620 (1978 Supp.). See Tenn. Code Ann. § 40-28-123. Citing Henderson v. State ex rel. Lance ,2 Only o ne oth er cas e, Ronald Dee W att v. State , No. 03C01-9609-CR-00343 (Tenn. Crim. App., at Knoxvil le,

Jan. 28, 1999), holds that the s entence for

a fe lony commit ted on work r elea se mus t be s erved conse cuti vely to t he pri or sentence. This case rel ies upon the holdings i n Henders on and Taylor

. -4- 220 Tenn. 520, 419 S.W.2d 176 (1967), which held that a concurrent sentence for an

offender who committed

a felony while on pa

role was illegal, this court concl uded t hat Ta ylor's robbery se ntence should ha ve been consecutive to the prior sentence unde r the terms of the statute because Taylo r committed

the offense while on work release. This cour t concluded that the judgment, which ordered concurr ent s entencin g, was void for lack of jurisdiction, leaving the pe titioner with "no sentence at all." Taylor , 909 S.W.2d at 20. Nevertheless, this cour t rule d that Taylor wa s not eligible for habeas corpus relief because he was not e ntitled to release from his prior sentencewhich, by then, had been re instated a s a life se ntence a s a resul

tof a revocation

of the commutation by the governor.
The Taylor

ruling m ust be gi ven some consideration in relation to the second issue. Ini ti al ly, this case is distinguishable because unlike Taylor , where concurr ent sente ncing w as order

ed in the judgmen t, the petitioner's 1984 judgment is silent on the issue. In addition, the Taylor opinion relied heavily upon Henderson , wherein a parolee was given a concurrent sentence contra ry to statute, even thou gh Taylor wa s on a work release program, a status trea ted differently by

the same statute. See Tenn. Code Ann. § 46-3620 (Supp. 1978) (current version at Tenn. Code Ann. § 40-28-123 (2003) ).

The current version

of the sta tute, whic h is identical to the provision in effect at the time of both Tay lor's a nd the pet itioner' s convict

ions, prov ides, in pe

rtinent pa rt, as fo llows: Any prisoner

who is convicted in this state of a felony, committed while on parole from a state prison, jail or workhou se, s hall serve the remainder of the sentence under which the prisoner was paroled, or such part of that sentence, as the board may determine

before the prisoner commences serving the sentence received for the felony

committed while on parole. . . .

Tenn. Code Ann. § 40-28-123(a) (2003) (emphasis added). T his statute has been inter p reted to require, as a matter of law, that the sentence for an offense c ommitted while on parole be served consecutively to the pr

ior sentence. State v. V enable , 606 S.W.2d 29 8 (Tenn. Crim. App. 1980). 2 Section(b)(1) of the statute, however, specifica lly addresses prisone

rs "assigned

to any work r

elease, educ a tional release, restitution release, or other prog ram . . . [involving] release into the community," disqualifying

them from

parole or work release eligibility

if convicted of a felony

other than escape butnot otherwise requiring a consecutive sente nce for the subsequent offense. Tenn. Code Ann. § 4 0-28-123 (b)(1) (2003). This language implies that the Gener al Assembly intended diffe rent treatment for those on work release and ot he r similar programs than those on parole, including concurrent

sentencing for the subsequent offende r. See ge nerally State v. Gerald Webster , No. 02C01-9703-CR-00119 (Tenn. Crim. App., at Jackson, J an. 5, 1998) (setting out the rules of statutory construction).-5-

The facts here are closely

aligned with those in Taylor in that both petitioners were on work release. Taylor, who wa s specifically g ranted a concurrent sentence , was not granted habeas corpus relief because his prior sentence had been r estored to a life term and he was not entitled t o immediat

e release, a pre-requisite before the g rant of a wri t. In Taylor , this court’s ruling was that the charge s whichha d r es ul te d i n t he tw en ty- yea r s en te nc e w er e i nc or re ct ly o rd er ed to be se rv ed co nc ur re nt ly,
wer e v oid, and were still pending subject to resolution at a future date. The observation that the second sentenc e was ille gal bec ause it wa s ordere d to be ser ved conc urrently to th e first had no bearing on the outcome of that case but is controlling precede nt in this case notwi th standing the language of the statute, whichdoes not appear to preclude a concur rent sentence for the petitioner who co mmitted a fel ony while on work re lease from prison. In our view , this court is bound by Taylor , which sta

nds for th e proposi

tion that a nyone on wor

k relea se who commits a felony, by the terms of the statute, must receive a consecutive sentenc e.
The trial co urt foun d that Tennessee Rule of Criminal Procedure 32(c)(3) did not require consecutive sentenc ing but it did not add

ress the catchall provision (D) of Rule 32(c)(3), re quiring
a consecutive sentence on "any other ground

provided by law." Although the statute in effect at the time did not appear to require consecutive sentencing , our ruling in Taylor , a published opinion, has interpreted

it as so. Rule 32 provides that when the law requires a c onsecuti ve sentence, "the sentence shall be consecutive whether ordered or not." Tenn. R. Crim. P. 32(c)(3). Because the 1984 judgment did not orde r a concurr ent sente nce, it was not illeg al. Bec ause Rule 32 in conjunctionwith Taylor

requires that the 1984 sentencebe interpreted as consecutive, the petitioner is not entitled to habeas corpus relief. Accordingly , the judgment is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE