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

DICKEY L. COTT ON v. DAVID M ILLS, WARDEN

Circuit Court for Lauderdale County

No. 5904

No. W2004-02523-CCA-R3-HC - Filed Septem ber 19, 2005

OPINION DISSENTING IN PART

D AVID H. W ELLES , J., dissentin g in par t.

Iagree tha

t if the al l egations and assertions contained in the petition are cor rect, the Defendant’s sentences appear to be in direct contra vent ion to Tennessee’s sentencing act a nd are therefore illega

l and void. Howeve

r, beca use the D efenda

nt’s habe as corpu s petition w as summar ily dismissedwithout a hearing, I would reman d the case to the habeas court for a dete rmination of whether the sentences are indee d void.

Becau se the Defe

ndant’s habeas c orpus pet ition was summarily dismi ssed by the lower court, the record

before us on appe al is, as t

he majo rity surmised, “sparse .” It is unquestioned that Tennessee’s sentencing act require s multiple r

ape off enders t o serve 1 00% of the ir

sentence with no reduction credits. See Tenn. Code Ann. § 39-13- 523. The Defendant in this case asserts that he entered into a plea agreement--which was accepted by the trial court--in which

he was to serve two concurrent eight-y

ear sentenc es as a

Range I , standar

d offend er with a 30% rele ase eligibility

date for hi s t wo r ape con vi cti ons . If these factual assertions are true, the De fendant would be entitled t o the habeas corpus relief for which he has petitioned.

Becau se the habeas court in this case summarily dismissed the Defendant’s petition before the State had the opportunity to respond and w ithout any hearing , the factual assertion s contained inthe Defendant’s habeas petition have neve r been properly

addressed. While I ag

ree with the majority that the lower court’s summary dismissal of the Defendant’s petition for habeas relief was error, I be lieve tha

t it is likewis e error fo r t hi s C ou rt to su mm ar il y grant habeas r elief wi thout a judicial determination of the accuracy of the Defendant’s assertions. We have previously noted that “[i]n this state’s adversarial system of justice, both the district attorney g eneral and defense counsel
are advocates.” State v. G riffis , 964 S.W.2d 577, 598 (Tenn. Crim. App. 1997). Both the Defendant and the State should be g

iven the o

pportunit y to address th e factu al ass ertions made in a habeas corpus pet it io n. In my view, befor e a court g

rants an inmate ha

beas cor pus relie f, the Sta

te should have the opportunity to be he ard on the petition.-2-

While the Defendant

may indeed be

entitled to habeas relief

as a matter of law if the factual assertions ma de in his pe tition are true, this Court is not

in a position to make t

he initial factu a l determinations necessa

ry to conclude that relief must be granted. Our supreme court has stated that “appell ate courts are not fact finders.” State v. Flake , 114 S.W.3d 487, 506 (T enn . 2003). Wh ile it appears that

the Defe ndant’s negotia

ted plea agree ment indic ates he a

greed to be sente

nced as a Range I offender, a

n illegal sentence for

a multiple rape offende

r, the jud gment of convicti on forms inthe record on appeal

appear to be blank as to offender status. Quite simply , the record before us is so sp arse t hat we are unable to properly conclude whether the judgment of conviction conta ins “mere clerical errors” or

does indeed impose an illegal sentence. See Coleman v. Morgan , 159 S. W.3d 887, 890 (Tenn. Crim. App. 2004) (holding that “mere cleric al errors in the terms of a sentence may not give rise to a void judgment.”). Becau se we ar e a cour t of revie w, our role ex tends no further than reversing the order summarily dismissing the petition. I believe we should re mand this
caseback to th e habea s court to make appropriate findings of fact and c onclusions of law regarding the merits of the petition.

Inmost of the ca se prec edent ap

plicable to this issue, including cases heavily relied on by the majority, this Court has remanded the cause back to the habeas court for a hearing

. See McLaney
v. Bell , 59 S.W.3d 90, 91 (Tenn. 2001) (“we . . . remand the cause to the trial cour t for appointment of counsel and a determination whether the fac e of the jud gm ent or the rec ord of the pr oceedi ngs [support the defendant’s habeas claims.] ”); Mark L. Grimes v. Fre d Rainey , No. W2002-01583- CCA-R3-CO, 2003 WL 21878530, at *1, 3 (Tenn. Crim. App., Jackson, A ug. 5, 20 03) (“th e circu

it court erred i n summarily dismissing the habeas c orpus petition without the appointment of counsel and a h earing. We th erefor e rever se the judgm ent of the ci rcuit court and rem and fo r proce edings consistent with this opinion,” and

further holding that “[s]hould the [habeas court] Judge determine that the petiti oner’s s entence s are ille gal and void, the habeas c ourt shoul d declar e the sen tences v oid and transfer the matter

to the [con

victing court] for further procee dings.” ); Mitchell T arver v . State , No. W2002-01662-CCA-R3-CO, 2003 WL 22446774, at *1 (Tenn. Cr im. App., Jackson, Oct. 21, 2003) (holding

that “[w]hil e consideration of the underly ing record of convictions is appropriate, we believe it must be done in the context of anevidentiary he aring wherein the habeas pe titioner has the opportuni ty to explain any discrepanc y in the underly

ing rec ord a nd the allegations in the habeas petition which if true would render the sentence void. Therefore, we remand this case to the [habeas court] for . . . anevidentiary he aring wherein the petitioner shall be g iven an opportunity to prove his allegations and such o ther relief a s may

be appro priate. ”); Charles G . Summers v . State , No. M2004-02 806-CCA- R3-HC, 2005 WL 1950298, at *2 (Tenn. Crim. App., Nashville, Au g. 12, 2005) (“As the supreme court held in McLaney , we believe the appellant

should be afforded the benefit of counsel and an

opportuni

ty to prove the allega tions to the

habeas c orpus cou

rt. Ther efore, this case is remanded to the habeas corpus court . . . ”)

. But see Deway ne Cathey v. State , No. W2003-00411- CCA-R3-CO, 2004 WL 1686869, at *1 (Tenn. Crim. App., Jackson, July 28, 2004) ( “The lower court summarily dismissed the [habeas] petition. Upon our review of the r ecor d, we reverse and vacate the trial court’s order. Furthermore, we order the lower court

to grant habeas corpus relief” ).

Insummary, the habe as corpus court made n o factu al findings. This court does not make factual findings. There are no facts upon which to base conclusions of law. I n view of the record-3-

before us and based on the foregoing r easoning and authorities, I would remand t

he case to the habeas court for a hearing. Onl y if th e habeas court determines that the alleg ations in the Defendant’s petition a

re acc urate should

the habeas court declare the sentenc es void and transfer the matter to the convi cting c ourt for

further procee dings.

____________________________________ DAVID H. WEL

LES, JUDGE