IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 13, 2010

JAMES P. STOUT v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 4029 Cheryl Blackburn, Judge

No. M2009-01171-CCA-R3-HC - Filed April 5, 2010

A Shelby County jury convicted the Petitioner, James Stout, of one count of especially

aggravated robbery, and the trial court sentenced the Petitioner, a Range II offender, to

forty years in the Tennessee Department of Correction (“TDOC”). The Petitioner filed a

petition for habeas corpus relief, his second such petition, alleging that his conviction is

void because: (1) his indictment was void because the grand jury foreperson issuing the

indictment was appointed by a Shelby County trial judge; (2) his sentence is

unconstitutional because, on the judgment of conviction, the trial judge checked both

boxes indicating that his sentence should run at 35% and 100%. The habeas corpus court

denied the petition, and the Petitioner appeals that judgment. Finding no error, we affirm

the judgment of the habeas corpus court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which DAVID H.

WELLES and JERRY L. SMITH, JJ., joined.

James Stout, Nashville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor

General; Deshea Dulany Faughn, Assistant Attorney General; Victor S. Johnson, III,

District Attorney General; Bret Gunn, Assistant District Attorney General, for the

Appellee, State of Tennessee.

OPINION

I. Facts
A jury convicted the Defendant of especially aggravated robbery. He did not

challenge his conviction on direct appeal, but later filed a petition for post-conviction

relief, alleging he received the ineffective assistance of counsel at trial. The postconviction court dismissed the Petitioner’s petition, and in our opinion affirming that

judgment we provided the following summary of the factual background of this case:

In the early morning hours of November 11, 1995, the victim, Walter

Bush, III, was returning home from his job as a cook at Perkins’ Restaurant.

As he parked his car on a side street near his home, a car containing three

men pulled up beside his car. One of the men jumped from the car, pointed

a gun at Bush, and ordered Bush to get out of his car and drop his keys.

Bush complied. Pursuant to further instructions, Bush also handed the

assailant his money. A second man got out of the vehicle, retrieved Bush’s

keys, and got into the driver’s side of Bush’s vehicle. The first assailant

asked Bush if he would remember the assailant’s face. Bush replied that he

would not. The assailant then ordered Bush to turn around. Bush did so

and, fearing for his life, began to move away. At that time, Bush was shot

in the neck by the first assailant. The assailants then drove both vehicles

away. Bush survived the gunshot.

At trial, Lieutenant Hollis W. Hightower of the Memphis Police

Department testified that, through his investigation, he was able to identify

Verico Bowers and Vassie Gandy as two of Bush’s assailants. However,

Bush was unable to identify either Bowers or Gandy in a photographic

line-up. Bowers and Gandy revealed to Lieutenant Hightower that they

knew the third assailant only by his “street name” of “Taurus.”

Furthermore, Bowers and Gandy provided Lieutenant Hightower with the

name and address of “Peco,” who knew the real identity of “Taurus.” As a

result of a conversation with “Peco,”whose real name was Thomas Stout,

Memphis Police officers discovered that “Taurus” was Stout’s cousin,

James P. Stout, the [P]etitioner.

While examining the [P]etitioner’s arrest record, Lieutenant

Hightower discovered a photograph of the [P]etitioner. Lieutenant

Hightower showed this picture to Bowers and Gandy, who confirmed that

the person in the picture was “Taurus,” the third assailant. After

ascertaining that the [P]etitioner lived with his grandmother, Frances

Beasley, Lieutenant Hightower went to Beasley’s home at approximately

1:45 a.m. on the morning of November 21, 1995. He knocked on the door

of the residence and, when the [P]etitioner answered the door, entered the

residence without a warrant and arrested the [P]etitioner. Lieutenant

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Hightower took the [P]etitioner into custody and transported him to the

police station where, approximately one hour later, the [P]etitioner gave a

statement confessing to the robbery. Subsequently, Bush examined a

photographic line-up containing a picture of the petitioner and identified the

[P]etitioner as his assailant.

James P. Stout v. State, No. W2000-01743-CCA-R3-PC, 2002 WL 1482671, at *1 (Tenn.

Crim. App., at Jackson, Feb. 7, 2002), (footnotes omitted), no Tenn. R. App. P.

application filed.

The Petitioner filed his first petition for habeas corpus relief pro se on January 14,

2008. In the petition, he alleged: (1) the grand jury foreperson was unconstitutionally

selected by a circuit court judge, which violated his 14th Amendment rights and made his

indictment void on its face. The habeas corpus court dismissed the petition, finding that

“this [was] not a cognizable habeas corpus claim.” The habeas corpus court noted that

the Petitioner had also not complied with statutory requirements for habeas corpus

petitions but reiterated that the dismissal was also based upon the merits of the petition.

Our Court records indicate that the Petitioner filed a Rule 10 extraordinary appeal of the

habeas corpus court’s dismissal to this Court. We denied the Rule 10 on April 7, 2008.

The Petitioner then filed a Rule 10 appeal to the Tennessee Supreme Court, which the

Court denied on June 23, 2008.

On October 20, 2008, the Petitioner filed in the Davidson County Criminal Court

an “Affidavit Verifying Complaint,” in which he alleged: (1) that his sentence was illegal

because the trial court ordered him to serve his sentence at 100% and 35% for only one

offense, which constituted a “double sentencing”; (2) he was illegally restrained because

his indictment was void due to the unconstitutional selection of Tennessee’s grand jury

foreperson. The habeas court dismissed the Petitioner’s petition. It is from this judgment

that the Petitioner now appeals.

II. Analysis

On appeal, the Petitioner contends that his conviction is void because: (1) his

sentence is illegal due to the trial court ordering him to serve his sentence at 100% and

35% for only one offense, which constituted a “double sentencing”; (2) he was illegally

restrained because his indictment was void due to the unconstitutional selection of

Tennessee’s grand jury foreperson.

Article I, section 15 of the Tennessee Constitution guarantees the right to seek

habeas corpus relief. See Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007).

Although the right is guaranteed in the Tennessee Constitution, the right is governed by

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statute. T.C.A. § 29-21-101 (2006) et seq. “The determination of whether habeas corpus

relief should be granted is a question of law.” Faulkner v. State, 226 S.W.3d 358, 361

(Tenn. 2007) (citing Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000)). Our review of the

habeas corpus court's decision is, therefore, “de novo with no presumption of correctness

afforded to the [habeas corpus] court.” Id. (citing Killingsworth v. Ted Russell Ford, Inc.,

205 S.W.3d 406, 408 (Tenn. 2006)). Although there is no statutory limit preventing a

habeas corpus petition, the grounds upon which relief can be granted are very narrow.

Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). It is the burden of the petitioner to

demonstrate by a preponderance of the evidence that “the sentence is void or that the

confinement is illegal.” Wyattv. State, 24 S.W.3d 319, 322 (Tenn. 2000). In other words,

the very narrow grounds upon which a habeas corpus petition can be based are as follows:

(1) a claim there was a void judgment which was facially invalid because the convicting

court was without jurisdiction or authority to sentence the defendant; or (2) a claim the

defendant’s sentence has expired. Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn.

2000); Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “An illegal sentence, one

whose imposition directly contravenes a statue, is considered void and may be set aside at

any time.” May v. Carlton, 245 S.W.3d 340, 344 (Tenn. 2008) (citing State v. Burkhard,

566 S.W.2d 871, 873 (Tenn. 1978)). In contrast, a voidable judgment is “one that is

facially valid and requires the introduction of proof beyond the face of the record or

judgment to establish its invalidity.” Taylor, 995 S.W.2d at 83; see State v. Richie, 20

S.W.3d 624, 633 (Tenn. 2000).

A. Sentence

The Petitioner first asserts that his judgments are void because the trial court

“double sentenced” him by marking both the 100% and the 35% boxes on the judgment

form. The habeas corpus court found:

The Judgment Form shows that Petitioner is deemed as a Range 2 multiple

offender (Range 2) his sentence was imposed as a violent offender at 100%

release eligibility.

. . . .

The Judgment Form is included as an Appendix to Petitioner’s application

for habeas corpus relief. It shows that two boxes are checked. One box

indicates Petitioner’s range as a Range II offender and includes the

percentage of 35% next to it. The second box indicates Petitioner is to

serve his sentence at 100% as a violent offender. This Judgment Form was

the standard form used in Tennessee at the time Petitioner was sentenced.

Although it appears two sentencing ranges are checked, with the 100%

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trumping the 35%, the Court actually was checking boxes to designate

Petitioner’s sentencing range (which the Court determined was Range II) as

well as his sentence, which was 100% based on his conviction offense.

. . . .

Here, the trial court did commit an error in completing the Judgment Form;

however, even assuming in arguendo that the Judgment Form provides two

different sentencing percentages, Petitioner fails to establish a cognizable

habeas corpus claim.

Petitioner does not assert that his 40 years at 100% sentence exceeds

the statutory minimum but in fact claims the opposite. He even concedes

that a sentence of 40 years at 100% is a “proper and legal sentence” where

as 40 years at 35% would be illegal. . . .Petitioner’s primary complaint is

simply that the Court erred in checking two boxes, which he claims voids

the judgment, involved the court exceeding its authority, and resulting in a

vague sentence.

The habeas corpus court then cited Edwards v. State, 269 S.W.3d 915, 925 n.8

(Tenn. 2008), for the proposition that this type of error renders a judgment at most

voidable and not void.

First, we conclude that what has occurred here is a clerical error and should be

remedied by entry of corrected judgments pursuant to Tennessee Rule of Criminal

Procedure 36. The record clearly indicates that the trial court intended for the Petitioner’s

sentence to be served at 100%. The Petitioner was convicted by a jury, and his status as a

violent offender was an operation of statute. See T.C.A. § 40-35-501(i)(2)(E).

Further, even were we to agree with the Petitioner that more than a mere clerical

error is involved, we agree with the habeas corpus court that the error would nonetheless

render the judgment voidable and not void. This Court has previously held that an illegal

sentence may serve as a basis for habeas relief only if the illegality of the sentence is

“egregious to the point of voidness.” Coleman v. Morgan, 159 S.W.3d 887, 890 (Tenn.

Crim. App. 2004) (citing Cox v. State, 53 S.W.3d 287, 292 (Tenn. Crim. App. 2001)).

The indication of two sentencing ranges on the Petitioner’s judgment form would not rise

to this level of egregiousness, especially in light of the fact that all the parties to this case

understood that the Petitioner was to serve his sentence at 100%.

B. Grand Jury Foreperson

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The Petitioner next contends he is illegally restrained because his indictment was

void due to the unconstitutional selection of Tennessee’s grand jury foreperson. Upon

our review of the record in this case, we conclude that the trial court properly determined

that the Petitioner’s claim concerning the grand jury foreperson is not cognizable in a

habeas corpus proceeding. There is nothing in the record to indicate that the trial court

was without jurisdiction to sentence the Petitioner or that the Petitioner’s sentence has

expired. Thus, no grounds exist entitling the Petitioner to habeas corpus relief. The

Petitioner is not entitled to relief on this issue.

III. Conclusion

Based on the foregoing reasoning and authorities, we affirm the judgment of the

habeas corpus court.

______________________________

ROBERT W. WEDEMEYER, JUDGE

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