IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

January 5, 2011 Session

STATE OF TENNESSEE v. JOSEPH TIPLER

Direct Appeal from the Criminal Court for Shelby County

Nos. 96-1426, 27, 28, 29, 30 Chris Craft, Judge

No. W2010-01246-CCA-R3-PC - Filed November 10, 2011

The state appeals from the post-conviction court’s judgment granting the petitioner a new

sentencing hearing. A Shelby County jury convicted the petitioner on two counts of

aggravated kidnapping, two counts of aggravated assault, one count of assault, and one count

of aggravated burglary. The trial court - Division One of the Shelby County Criminal Court -

sentenced him as a Range II, multiple offender to an effective sentence of twenty years in the

Tennessee Department of Correction, with a release eligibility of thirty-five percent on all

counts. The petitioner’s habeas corpus petition alleged that a release eligibility of thirty-five

percent was illegal for his aggravated kidnapping convictions. The habeas court - Division

Five of the Davidson County Criminal Court - agreed, and it vacated his sentences for

aggravated kidnapping. The habeas court remanded the case to Division One of the Shelby

County Criminal Court - for a new sentencing hearing in accordance with Tennessee Code

Annotated section 40-35-501. On remand, the trial court corrected the judgment forms to

reflect the 100% release eligibility required by statute for the aggravated kidnapping

convictions but did not conduct a hearing. The petitioner filed a petition for post-conviction

relief alleging that the corrected judgments were void and that the entry of corrected

judgments violated double jeopardy. The post-conviction court - Division Eight of the Shelby

County Criminal Court - granted relief, vacating the corrected judgments and remanding the

case to Division One of the Shelby County Criminal Court for a new sentencing hearing. The

state appeals the post-conviction court’s order, arguing that the only possible remedy for the

petitioner was the entry of corrected judgments. Following our review, we reverse the postconviction court’s order granting relief and dismiss the post-conviction petition.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ALAN E. GLENN, J.,

joined. J.C. MCLIN, J., (Mortuus).

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Lance R. Chism, Memphis, Tennessee, for the appellee, Joseph Tipler.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Anita Spinetta, Assistant District

Attorney General, for the appellant, State of Tennessee.

OPINION

Background

In its decision disposing of the petitioner’s direct appeal, another panel of this court

set forth the following summary of the facts leading to the petitioner’s convictions:

In 1995, Frances Smith resided with her thirteen year old son, Shannon,

in Collierville. At some time during the month of September, Ms. Smith

permitted the appellant, the brother of Ms. Smith’s ex-husband, and his

girlfriend, Penny McIntyre,[FN 2] to stay at her residence.

[FN 2] Penny McIntyre was charged as a co-defendant in this

case. Prior to the appellant’s trial, McIntyre entered guilty pleas

to the offenses of aggravated criminal trespass, assault, and

attempted aggravated kidnapping.

On October 8, 1995, an argument erupted between the appellant and Ms.

Smith because the appellant believed that Ms. Smith had accused him of

stealing Shannon’s stereo. When Ms. Smith denied making the accusation, the

appellant “hit [her] in the mouth and busted [her] lip.”[FN 3] Ms. Smith

retaliated by evicting the appellant and his girlfriend from her home, reclaiming

her keys to the residence, and placing the appellant’s personal belongings “out

on the back porch.”

This case was originally assigned to our colleague and friend, Judge J.C. McLin. After Judge 1

McLin’s untimely death on September 3, 2011, the case was re-assigned. Prior to his death, Judge McLin

and his staff had done extensive work on this case. We have utilized much of that work, incorporated it into

this opinion, and take this opportunity to acknowledge the faithful service of Judge McLin to this Court.

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[FN 3] This altercation led to the appellant’s conviction, in the

present case, for assault.

Two days later, at approximately 3:00 a.m., Ms. Smith was awakened

by someone “beating on the back door.” She woke her son and instructed him

to go out the front door of the house. When Ms. Smith opened the front door,

she was greeted by Penny McIntyre who physically detained Ms. Smith by

grabbing her by the arm. Shannon, however, was able to escape and started

running towards a neighbor’s house. The appellant, who by this time had

succeeded in breaking a board covering a broken glass pane on the back door

and unlocking the door, ran through the house and inquired as to the

whereabouts of Shannon. McIntyre informed the appellant that Shannon had

gone next door. Armed with a “10 to 12” inch knife, the appellant “took off

after [Shannon].” Before Shannon was able to reach the neighbor’s front door,

the appellant stopped him and told him to come back to the house. The

appellant “grabbed [Shannon’s] left arm and ... pulled [him] back” to the

house.

Once in the house, the appellant began “cussing [Ms. Smith] and

calling [her] names,” while Ms. Smith and Shannon sat “on the bed.” The

appellant “pulled the left side of [Ms. Smith’s] hair back and slapped [her]

upside the head.” He then “threatened to kill [her] with the knife, but ... gave

the knife to Shannon,” stating that “he better throw the knife away because if

he didn’t he would do something he would regret.” Shannon threw the knife

on the floor and McIntyre retrieved the weapon. The appellant informed Ms.

Smith that “he come [sic] there to kill [her] just like his brother-in-law had

killed his sister.” Penny McIntyre inquired as to the location of a cassette tape,

Ms. Smith responded and retrieved the cassette from “the counter.” Before

leaving the house, the appellant asked Ms. Smith whether she needed a ride

to work the next day. The entire episode lasted approximately forty-five

minutes. Subsequent to the appellant’s departure, Ms. Smith remained in her

bed for several hours before reporting the incident to law enforcement

officials.

State v. Joseph Tipler, No. 02C01-9611-CR-00384, 1998 WL 32683, *1 (Tenn. Crim. App.,

at Jackson, Jan. 30, 1998), perm. app. denied (Tenn. Oct. 12, 1998).

On direct appeal, the petitioner argued that his separate convictions for aggravated

kidnapping and aggravated assault violated due process because any movement of the

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victims was incidental to the assault. Id. at *2. This court disagreed with the petitioner and

affirmed the judgments of the trial court. Id.

The petitioner filed a petition for post-conviction relief on November 16, 1998,

alleging that he received ineffective assistance of counsel at trial. Joseph Kenneth Tipler v.

State, No. W2000-00168-CCA-R3-PC, 2000 WL 1840079, *1 (Tenn. Crim. App., at

Jackson, Dec. 6, 2000), perm. app. denied (Tenn. May 14, 2001). The post-conviction court

denied relief, and the petitioner appealed. Id. at *2. This court affirmed the denial of postconviction relief. Id. at *3.

The petitioner filed a petition for writ of habeas corpus in 2008. The habeas court

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entered an order on January 8, 2009, granting the petition for habeas corpus relief, vacating

the petitioner’ssentencesfor aggravated kidnapping, and transferring the case “to the Shelby

County Criminal Court for a new sentencing hearing in accordance with [Tennessee Code

Annotated section] 40-35-501.”

There is nothing in the record indicating that Division One of the Shelby County

Criminal Court held a sentencing hearing. On January 15, 2009, Division One entered

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corrected judgments reflecting a 100% release eligibility for the two aggravated kidnapping

sentences. According to the petitioner’s post-conviction petition, the petitioner filed a

motion to set aside the corrected judgments, which Division One denied.

The petitioner filed for post-conviction relief on November 9, 2009, and the matter

was assigned to Division Eight of the Shelby County Criminal Court. Division Eight held

a hearing on March 10, 2010.

At the hearing, the petitioner testified regarding the procedural history of the matter.

The petitioner further testified about the habeas corpus proceeding in the Davidson County

Criminal Court. According to the petitioner, the state argued in that proceeding that the

errors on the judgment sheets for the aggravated kidnapping convictions were mere clerical

errors, but the petitioner said that the habeas court “shut [the state] down and said no, it’s

beyond clerical.” The petitioner stated, “I remember the Judge telling my attorney and the

prosecutor to get together and get it worked out and then he would sign the Order.” The

petitioner recalled that “on March 5th[,] [his] sentences were wiped from the [Department

The habeas petition is not in the appellate record nor is the transcript of the hearing before the 2

habeas court. 

The record reflects that the original trial judge had retired prior to the petitioner’s habeas

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proceeding.

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of Correction’s] computer,” and the Department of Correction “put a retainer on [him] . . .

for Shelby County to pick [him] up.” The petitioner testified that “on March 6th[,] [he] was

re-sentenced to twenty years at [100%].”

Division Eight granted the petition for post-conviction relief. In its written order

granting relief, Division Eight made the following findings of fact:

[The petitioner] filed a habeas corpus petition in Division Five of

Davidson County Criminal Court, when he discovered the Tennessee

Department of Correction was computing his 20 year Aggravated Kidnapping

sentences as 100 [%] Violent Offender sentences, despite the percentage

stated on the face of the judgments. On January 8, 2009, Judge Monte

Watkins entered an order vacating the two 35% Aggravated Kidnapping

sentences as illegal, transferring the cause to “the Shelby County Criminal

Court for a new sentencing hearing in accordance with T.C.A. § 40-35-501.”

This appears to be a consent order which the State never appealed.

As far as this court can tell from the absence of a record of a new

sentencing hearing no new sentencing hearing was ever conducted, but new

judgments were nevertheless entered January 15, 2009, by the judge in

Division One changing the notation of “Multiple Offender 35%” to “Violent

Offender 100%.” The defendant filed a motion to set aside these two

judgments, which was denied by Division One on March 24, 2009, causing the

petitioner to file the instant petition for post-conviction relief on November

9, 2009.

Division Eight concluded that a new sentencing hearing was required because the habeas

court’s order vacated the petitioner’s sentences entirely rather than merely finding the

sentences illegal. The state now appeals Division Eight’s granting of post-conviction relief.

Analysis

On appeal, the state argues that the post-conviction court erred by concluding that

Division One should have held a new sentencing hearing rather than enter a corrected

judgment. The state claims that no authority exists for the post-conviction court’s ruling

because the proper remedy for an illegal sentence in such a case as this is entry of a corrected

judgment. The petitioner responds that some authority exists for granting a new sentencing

hearing and argues that it was improper for Division One to alter the habeas court’s order

granting a new sentencing hearing.

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The post-conviction judge’s findings of fact on post-conviction hearings are

conclusive on appeal unless the evidence preponderates otherwise. State v. Burns, 6 S.W.3d

453, 461 (Tenn. 1999). Those findings of fact are afforded the weight of a jury verdict, and

this court is bound by the findings unless the evidence in the record preponderates against

those findings. Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958

S.W.2d 138, 147 (Tenn. Crim. App. 1997). This court may not reweigh or reevaluate the

evidence, nor substitute its inferences for those drawn by the post-conviction court. State

v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s

conclusions of law are reviewed under a purely de novo standard with no presumption of

correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

The Tennessee Supreme Court recently addressed an issue very similar to this case

in Cantrell v. Easterling, 346 S.W.3d 445, 448 (Tenn. 2011). In Cantrell, the defendant

stood convicted of four counts of aggravated rape, and the judgment sheets indicated that

the defendant was a Range II, multiple offender with a release eligibility of 35%. Id.

However, Tennessee Code Annotated section 39-13-523, provides that a defendant with

multiple convictions for aggravated rape must be classified as a Multiple Rapist and be

required to serve the entirety of the imposed sentence. Id. at 457. The supreme court ruled

that Cantrell’s judgment sheets set forth sentences directly contravened by statute, and,

therefore, the sentences were illegal and void. Id. The supreme court also ruled that “[t]he

only remedy to which Defendant is entitled as a result of his habeas corpus proceeding is the

entry of amended judgment orders on each of his four aggravated rape convictions reflecting

Defendant’s status as a multiple rapist.” Id.

In this case, a jury convicted the petitioner of two counts of aggravated kidnapping,

and the trial court entered judgment sheets indicating that the petitioner was a Multiple

Offender with a release eligibility of 35%. However, Tennessee Code Annotated 40-35-

501(i) provides that aggravated kidnapping is an offense for which there is no release

eligibility. Therefore, the judgment sheets set forth sentences that were in direct

contravention of Tennessee Code Annotated section 40-35-501(i), a “fatal error” under

Cantrell. See Cantrell, 346 S.W.3d at 452. As such, the petitioner’s sentences for

aggravated kidnapping were illegal and void, which was the conclusion reached by the

habeas corpus court. The complication in this case arises from the habeas corpus court’s

order requiring a new sentencing hearing in accordance with Tennessee Code Annotated

section 40-35-501. Division One apparently interpreted the habeas corpus court’s order as

requiring the entry of amended judgment sheets reflecting the correct release eligibility. In

light of the Cantrell court’s ruling that the only available remedy in a habeas corpus

proceeding when the judgment forms reflect an illegal release eligibility is the entry of

corrected judgment forms, we conclude that Division One’s interpretation of the habeas

corpus court’s order was logical. Because the only remedy available is the entry of corrected

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judgment forms, the only result possible from “a new sentencing hearing in accordance with

[Tennessee Code Annotated section] 40-35-501” was the entry of corrected judgment forms

reflecting the statutorily mandated 100% release eligibility. Therefore, the post-conviction

court erred by granting the petitioner’s petition for post-conviction relief from Division

One’s amended judgments, and we reverse the post-conviction court’sjudgment and dismiss

the post-conviction petition.

Conclusion

Based on the foregoing reasons, we reverse the post-conviction court’s granting of

relief and dismiss the petitioner’s post-conviction petition.

___________________________________ 

CAMILLE R. McMULLEN, JUDGE

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