### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE May 2000 Session
EDDIE COPEL

AND v. JAMES A. BOWLEN, WARDEN
Appeal from the Circuit Court for Bledsoe County No. 10867 Buddy D. Perry, Trial Judge

No. E1999-01753-C CA-R3-CD - Dec ided September 11, 2000

The trial court dismissed the petition er’s pro se petition for habeas corpus relief. The petitioner alleges that various cre

dits should reduce

his sentence. The

trial court deter

mined th at it lacke d jurisdiction to address this issue or, in the alternative, that the sentence had not exp

ired. We affirm the dismissal of the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OHN E VERETT W ILLI AMS , J., delivered the op

inion of the court,

in which T HOMAS T. W OODALL and A LAN E. G LENN , JJ., joined. Eddie Copeland, Pikeville, Tennessee, Pro Se.

Paul G. Summers, Attorney General & Reporter; R. Stephen Jobe, Assistant Attorney General; and James Michael Taylor, District Attorney Gener al, for the appellee, State of Tennessee.

OPINION

Introduction

The petitioner, Eddie

Copeland, pled g

uilty to agg

ravated rape b

efore the Hamble

n County Criminal Court and was sentenced c oncurrently

with a Georgia sentence. The petitioner has sought sentence reduction credits for several years through c orresp ondence with both Georgia and Tennessee authorities and under the Uniform Administrative Procedures Act (APA). By order, the Hamilton County Criminal Court dismissed his pet it ion for habeas corpus relief for lack of jurisdiction and for failure to state a claim cognizable under habeas corpus relief. After c areful review, we aff

irm. Background1 The de fendant co uld not acc rue sentence reduction c redits for any inc arceration u nder max imum secu rity.
-2- On October 1, 1984, the petitioner pled guilty to aggrava ted r ape in the Hamilton County Criminal Court. The judgment order states that the petitioner was arrested on

this charge on A

pril 9, 1983, made bond on April 15, 1983, and was again arrested for the charge on September 10, 1984. The trial court impose

d a sentence of tw

enty y ears as a Range

I standard of

fender, with re

lease eligibi lity after service

of thirty pe

rcent. This sente

nce was imposed c

oncurrently

with th e pet itioner’s t hen current incarceration in Georgia for an offense or of fenses neither discussed nor identified in the record.

The defendant comple

ted his Georgia

sentence and wa

s returned to Ten

nessee to complet

e the sentence for aggravated rape on July 6, 1990. See Eddie Lamar Copeland v. Christine Bradley , No. 01A01-9409-CH-00435 (Tenn. Ct. App . fil ed Feb. 22, 1995). Correspondence regarding sentence credits followed, as the petitioner sought records from the Geo rgia Depar

tment of Correction (GDOC) to verify his claimed credits and application of cred its by t he Tennessee Department of Correction (TDOC).

The petitioner requested a TDOC declarat ory order regarding the credits. W illiam B. Hutchers on, Jr., Counsel to the Commissioner of TDOC, advised the petitioner that, altho ug h sentence reduction credits were potentially available from March 1, 1986, available documentation established that the petitioner had earned cre

dits only from 1990. Hutcherson advised the petitioner to request a

report from the Georgia authorities that detailed by month, his conduct, the number of days he had completed in a work/school/vocational program, his classification for each month, 1 and any disciplinary actions taken against him. After review, t he sentence re

cord would be app

ropriately modified. Therefore, advised Hutcherson, the petitioner’s request for a declaratory orde r wa s denied. See Tenn. Code Ann. § 4-5-223.

The petition er followed the APA, fi ling a Petition for Declaratory Judgment in the Davidson County Chancery Court, and the chancellor dismissed the petition for lack o f jurisdiction bec

ause the petitioner ha d not filed within sixty days of the Commissioner’s denial. See Copeland , No. 01A01-9409-CH-00435. The Tennessee Court of Appeals affirmed the dismissal but commented on TDOC’s delay in eliciting the requested information from GDOC. See id. During the pendency of the appeal, TDOC advised the petition er, through memorandums in Jan uary, June, and July 1997, that 390 credits, accrued from incarceration in Georgia from October 1984 to June 1990, would

be applied to his sentence. According to TDOC, this was the total amount applicable

from the record

s submitted by

GDOC. Further, the remaining accrued credits had been applied to the calculations for his sentence and the posted release date of

9-10-2001 “appe

ar[ed] to be correct.” That document fur ther advised the p

etitioner that he r

eceived six day

s of credit for so

me months and eight days for other months while incarcerated in Geor gia. He received a total of 993 prison sentence reduction credits (PSRC) and 96 program participation sentence credits (PPSC).

On July 26, 1999, the petitioner filed for habeas corpus relief in

the Bledsoe Count

y Circuit2 The record contain s a copy of a Motion to Correct

/Amend Judgment

and Award Jai

l Credit s, and t his copy is not stampe d as filed. Th e record contains no reference to any hearing o r disposition on this motion

. -3- Court. 2 The petitioner alleged that the effective date of the Tennessee sentence was actually July 26, 1983, the date he apparently began service of his Georg ia sentence, and

not September 3, 1984,
as indicated on the offender sentence letter from TDOC. He asserted that the judgment sheet r eflects his alleged plea a

greement for p

re-trial credi

ts and pre-trial b

ehavioral cred

it s from Jul y, 1983. Therefore, he claimed 429 day credits of pre-trial confi neme nt and 112 day credits of pre-trial beh avioral credits. He furt her alleged tha

t 390 program cr

edits earned dur

ing his incarce

ration in Georgia had not been applied.

The trial court’s order dismissed the petition for writ of habeas corpus, first noting the APA as the proper avenue for

recalculation o

f sentence redu

ction credits. Further, that court concluded that, even if the a llega tions w ere true and his claim cognizable in a habeas corpus proceeding, he would still not be entitled to relief. So, reasoned the court, thepetiti oner received a twenty-y ear sentence on October 4, 1984. The petitioner’s exhibits indicated that the sentence wou

ld expire on Septemb er 3, 2004. Reduction of sente nce by the 9 31 days req

uested by the

petitioner would terminate the sentence in the year

2002. Therefore, the sentence had not expired and the claim for relief could not be granted. Analysis Habeas corpus

Habeas corpus relief un

der Tennessee s

t ate law is an extr aordinary remedy g ranted only when
a petitioner proves by a preponder ance o f the evidence th

at a judgment is vo

id, and not merely voidable, on the face of the ju dgment or on the record on which the face of the judgment or the record of the proceedings on which the judgment is rendered. See Archer v. State , 851 S.W.2d 157, 163-64 (Tenn. 1993); Taylor v. Morgan , 909 S.W.2d 17, 19 (Tenn. Crim. App. 1995); Passarella v. State , 891 S.W.2d 619, 627 (T enn. Crim. App. 1994). “[A]ny compla int regarding

sentence cred

it miscalculations th

at relate to paro

le or other rele

ase eligibility

short of full

service of the sentence does not warrant habeas corpus relief.” William Jon es v. Department of Correction , No. 01C01- 9606-CC-00263 (Tenn. Crim. App. filed May 30, 1997); see also Carroll v. Raney , 868 S.W.2d 721, 723 (Tenn. Crim. App. 1 993) (Time credi ts, as internal mat

ters, are gen

erally ina ppropriate considerations under habeas corpus and their validity must be addressed thoug h the APA.).
Jail credits and sente

nce reduction cred

its

Credits may

reduce a defendant’s sentence under Tennessee statutory law. When a sentence is imposed for confinement, the trial court is required to render a judgment reflecting credit for any jail time accrued pending arraignment and trial and for any time served subseq ue nt “to any conviction arising out of the original offense for which the defendant was tried.” Tenn. Code Ann.-4-

§ 40-23-101(c).
Further, defendants

in DOC may earn up to eight day s for each full calendar month served for good institutional behavior and up to eight days per full calendar month for

satisfactory proper performance. See Tenn. Code Ann. § 41-21-236(a)(2). “ No prisoner sha ll have the right to any such time credits,” see id. , and the credits are available only on the governing war d en’s receipt of documents

establishing good behavior and satisfactory perfor mance, see Tenn. Code Ann. § 41-21- 236(a)(3). One convicted ma y also earn

good behavior c

redits for jail tim

e served before the imposition of a sentence, but, again, these credits are not automatically awa rded. See Tenn. Code Ann. § 41-21-236 (e)(1).

Our analysis mus

t also consider an

other se nte ncing concern: The defendant committed a Class X felony an

d was therefore

ineligible for se

ntencing credits under the law at the time of sentenc in g. See Tenn. Code Ann. § 41 -21-212, -214(r epealed 1985); Henderson v. Lutche , 938 S.W.2d 428, 429 (Tenn. Cri m. App. 1996); see also Tenn. Code Ann. § 41-21-236(g ) (Although repe al ed, Tennessee Code Annotated §§ 41-21-212 and -214 apply to inmates sentenced bef ore repeal.). He committed the Class X felony before December 11, 1985, and is therefore only eligib

le for credits accrue

d from and after

the date he sign

ed a written waiv

er of his right “

to serve his sentence under the law in e ffect at the time

his crime was committed.” Tenn. Code Ann. § 41-21- 236(c)(3); Henderson , 938 S.W.2d at 430. We discuss this waiver in greater detail in the subsequent analysis.
Administrative Procedures Act

The proper avenue for relief lies with the APA. See Tenn. Code Ann. § 4-5-101 to -325; Brigham v. Locke , 755 S.W.2d 469, 471 (T enn. Crim. App. 1988

); Lon nie Williams v. Bruce McDonald , No. 02C01-9603-CR-00109 (Tenn. Crim. A p p. filed Mar. 11, 1997, at Jackson). A petitioner still aggrieve

d must seek relief

in the Chancery

Co urt of Da vidson County. See Tenn. Code Ann. § 4-5-225, -322.

In the instantcase, the petitioner did initially pursue the proper avenue of relief. However, after TDOC received d ocume ntation, calculated the sentence, and advised the petitioner of the sentence status, he was still aggrieved. As noted, habeas corpus was not the proper course of relief. His remedy still

lies wi th t he A PA a nd, thu s, a sui t in the Cha ncer y Cou rt o f Dav ids on C oun ty. Again, we agree with the trial court’s conclusion that it lacked jurisdiction.
Failure to state a clai

m Further, in the alternative, we agree withthe trial court’s conclusion that the defendant has not established by a preponderance of the evidence tha t his sentence is voi

d versus merely voidable. The record is plagued by

inconsistencies and omissions that simply preclude a reviewing court from considering that the sentence has expired.3 We are not currently addressing the applicabil ity of good behavi

or credits under

Tennessee Code Annotated § 41-21-236.
-5- First, the defendant asserts that he has accrued 429 day

s of pre-trial ja

il credits retroa

ctively from the beginning o

f his Georgia

sentence on July

26, 1983. For these days of credit, the petitioner relies on Tennessee Code Annotated § 40-23-101, which establishes that all pre-trial jail credits and jail credits arising from the conviction shall be granted. See Stubbs v. State , 393 S.W.2d 150 (Tenn. 1965) (establishes that

the provisions of th

e cited act are

mandatory) . In support of this argument, he asserts that the Tennessee sentence be gan o n that date, befor e he was convicte

d of the Class X fel ony, that such date was part of his plea agree

ment, and that the j udgment order in correctly reflects the commencement date as 10/4/84 .

The defendant’s cla

im to these credits

is unfounded. Pre-

trial credits add

ress d i screpancy between a person of mean s, who can make bo

nd while awaiting trial, and an indigent, who is unable, for economic reasons, to regain at least tem porary freedom and thus i

s guaranteed c

redits for this time in jail. See State v. Abernathy , 649 S.W.2d 285, 286 (Tenn. Crim. App. 1983). Therefo re, “[i]t is only when the

time spent in jail or p

rison is due to

or, as the statute say

s, ‘arises out of’ the offense against which the claim is credited that such allowance becomes a matter of right.” Trigg v. State , 523 S.W.2d 375, 376 (Tenn. Crim. App. 1975). This Court has consistently declined to overrule a trial court’s denying credits when an accused must stay incarcerated, even after making bond. If one must stay incarcerated on one offens e, even afte

r making bond for another unrelated offense, the discrepancy

between one who c

an ma ke bond and a n indigent is not present. See, e.g. , State v. TimothyS. Bradley , No. 01C01-9804-CC-00165 (Tenn. Crim . App. filed Mar. 23, 1999, at Nashville). Such is the instant c ase: The defend

ant, incarcera

te d on his Geo rgia sentence , would thus remain incarcerated even after making bond on his Tennessee charg e. 3
Second, as one convicted of a Class X felony offense committed before December 11, 1985, the defendant was no

t eligible for se

ntence reductio

n credits until he w

aived in writing his

right to
serve his sentence under the law in effect at the time of his offense, see Tenn. Code Ann. § 41-21- 236(c )(3), and, as a Class X offender, he was ineligible for any credits under the then -curren t scheme, see Henderson , 938 S.W.2d at 429. The record comprise

s a waiver signed by the defendant
on December 28, 1991, but that waiver does not list the relevant d

ocket numbers. Ev

en if this waiver is valid in spite of the omission, he may not accrue credits under the statutory scheme before that date. Confusingly, the memos from TDOC indicate credits under the

scheme preceding that waiver date, and a TOMIS she

et indicates that a

waiver date of some type on Mar ch 1, 1 986. O ne TOM IS sheet, how eve r, shows a parole revocation hearing date on August 26, 1998, assumedly for the instant offense. In short, these deficiencies in the record preclude meaningful review and calculation of these credits.

The petitioner has not

successfu lly disputed the great deference we g ive to TDOC calculations. See Mic key A llen Brown v . Ricky J. Bell, Warden , No. 01C01-9508-CC-00281 (Tenn. Crim. App. filed De c. 13, 1996, at Nas

hville). Even wer

e we to consider t

his claim on its merits, as stating a request for relief cognizable under habeas corpus, the petitioner has not met his-6-

burden.
CONCLUSION Although the defendant has invoked the APA once in this case, he has since secured more credits and again contests TDOC calculations. Habeas corpus is the not the proper avenue of relief. His remedy is

again recourse through the APA, and, if necessary , a suit presenting his argument and the contravening TDOC calculations to the Davidson County Chancery Court, thereby

establishing
some type of proper

record that may support appellate review. His current proposed calculations do not establish that his sentence has expired. We affirm the trial court’s order.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE