IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 21, 2014

GROVER D. COWART v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

Nos. 49900 & 50934 Mary Beth Leibowitz, Judge

No. E2014-00700-CCA-R3-CD - Filed January 5, 2015

The Petitioner, Grover D. Cowart, appeals the habeas corpus court’s summary dismissal of

his petition for writ of habeas corpus, or, in the alternative, motion to correct an illegal

sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. On appeal, the Petitioner

contends that (1) the judgments of conviction in Case No. 50934 are void; (2) the judgment

of conviction in Count 1 of Case No. 50934 is too “indefinite and ambiguous” to run

consecutively to his conviction in Case No. 49900; (3) the judgments of conviction in Counts

2 and 3 in Case No. 50934 are too “indefinite, uncertain, and ambiguous” to run

consecutively to Count 4 in Case No. 49900; and (4) the sentences in Case No. 50934 are

expired. Discerning no error, we affirm the summary dismissal of the Petitioner’s petition.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Grover D. Cowart, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Lacy Wilber, Senior Counsel for

the appellee, State of Tennessee.

OPINION

PROCEDURAL BACKGROUND

The Petitioner was indicted in Case No. 49900 on October 2, 1992. He was

eventually convicted by a jury on Counts 4 and 5 of the indictment, which were especially

aggravated robbery and attempted first degree murder, respectively. On April 24, 1995, the

trial court sentenced the Petitioner to twenty-five years on Count 4 and twenty years on
Count 5. The twenty-year sentence imposed in Count 5 was ordered to run consecutively to

the twenty-five-year sentence imposed in Count 4, resulting in a total effective sentence of

forty-five years.

On August 1, 1995, in Case No. 50934, the Petitioner pled guilty to aggravated

robbery in Count 1, aggravated robbery in Count 2, and burglary of an automobile in Count

4. In the same guilty plea, the Petitioner pled guilty to three separate counts of aggravated

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robbery in Case Nos. 50928, 50929, and 50932.

In Case No. 50934, the judgment form for Count 1 shows that the trial court ordered

a twelve-year sentence to be served consecutively to “Case No. 49900 previously imposed

by Knox County Criminal Court.” On the judgment form for Count 2, the trial court ordered

that an eleven-yearsentence be served consecutively to the “[first] count of th[e] indictment”;

and on Count 4, the court ordered that a two-year sentence be served consecutively to the

“[second] count of th[e] indictment.” Thus, the Petitioner received a total effective sentence

of twenty-five years in Case No. 50934, to be served consecutively to the forty-five-year

sentence already imposed in Case No. 49900. The record before us does not contain

judgment forms for Case Nos. 50928, 50929, or 50932.

On January 8, 1999, on direct appeal in Case No. 49900, we affirmed the Petitioner’s

conviction and sentence on Count 4 for especially aggravated burglary, but we reversed the

conviction on Count 5 for attempted first degree murder. State v. Grover Donnell Cowart,

No. 03C01-9512-CR-00402, 1999 WL 5174 (Tenn. Crim. App. Jan. 8, 1999), perm. app.

denied (Tenn. June 28, 1999) (“Cowart I”). Furthermore, this court concluded that the trial

court had failed to make adequate findings regarding the imposition of a consecutive

sentence in Count 5. Id. at *30. Thus, we concluded that if the State chose to re-prosecute

the charge of attempted first degree murder in Count 5, the trial court could impose a

consecutive sentence only after making appropriate findings. Id. This court’s opinion did

not disturb the conviction or sentence on Count 4. On September 9, 2000, the State nolle

prosequied the attempted first degree murder charge, leaving only the twenty-five-year

sentence remaining in Count 4 in Case No. 49900.

On July 27, 2010, the Petitioner filed a petition for writ of habeas corpus. This court

affirmed the habeas corpus court’s summary dismissal of that petition. Grover D. Cowart

v. David Sexton, No. E2011-00774-CCA-R3-HC, 2011 WL 3896942 (Tenn. Crim. App.

Sept. 6, 2011), perm. app. denied (Tenn. Dec. 14, 2011) (“Cowart II”). We summarized the

Petitioner’s argument in that petition as follows:

With respect to Count 4, the trial court entered an amended judgment on October 18, 1995, correcting the 1

burglary conviction’s designation to a Class E Felony.

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[In his petition,] he asserted that our court’s remand of case number 49900 for

a new trial for the attempted first degree murder count and for findings in

support of consecutive sentencing meant that both counts of the indictment

were “pending final disposition” at the time he was sentenced in case number

50934. According to the [P]etitioner’s reasoning, this had the effect of

“rearranging the order of the sentencing courts,” thereby depriving the court

in case number 50934 of “authority to require the [P]etitioner to serve the

[effective] twenty-five-year sentence in [that case] consecutively with the

twenty-five-year sentence in [case number] 49900.”

Id. at *1.

In Cowart II, we noted that the Petitioner misunderstood the effect of this court’s

holding on direct appeal because “our order on remand did not affect the [P]etitioner’s

especially aggravated robbery conviction or the twenty-five-year sentence he received for

that conviction.” Id. at *2. We concluded, “There is, therefore, nothing unlawful in the trial

court’s ordering that the [P]etitioner serve his sentence for aggravated robbery in case

number 50934 consecutively to the twenty-five-year sentence that remained in case number

49900.” Id.

On September 18, 2013, the Petitioner filed a “Motion to Correct Illegal Sentence

And/Or For Habeas Corpus Relief” in the Knox County Criminal Court. That court entered

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an order on December 4, 2013, summarily dismissing the Petitioner’s writ of habeas corpus,

finding that “all the[] issues ha[d] been previously litigated.” The Petitioner filed his notice

of appeal on January 22, 2014, nineteen days beyond the thirty-day limit for filing a notice

of appeal. On May 16, 2014, this court entered an order waiving the timely filing of the

notice of appeal for good cause shown.

ANALYSIS

On appeal, the Petitioner seeks habeas corpus relief, contending that the judgments

of conviction in Case No. 50934 are void, that the judgment of conviction in Count 1 of Case

No. 50934 is too “indefinite and ambiguous” to run consecutively to his conviction in Case

The Petitioner’s motion states that, in addition to habeas corpus relief, he is seeking relief under Tennessee 2

Rule of Criminal Procedure 36.1, which allowsfor the correction of an illegal sentence upon motion of either

the defendant or the State. However, the Petitioner has failed to make any argument that his sentences were

imposed in contravention of any statute or were otherwise illegally imposed. As we understand the

Petitioner’s arguments on appeal, he argues that the judgments themselves are void and that his sentences

have expired, and we will therefore analyze his arguments in accordance with habeas corpus principles.

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No. 49900, that the judgments of conviction in Counts 2 and 3 in Case No. 50934 are too

“indefinite, uncertain, and ambiguous” to run consecutively to Count 4 in Case No. 49900,

and that the sentences in Case No. 50934 are expired. The State responds that the

Petitioner’s judgments are facially valid and that he is not otherwise entitled to habeas corpus

relief. We agree with the State.

Under Tennessee law, the “grounds upon which habeas corpus relief may be granted

are very narrow.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The writ will issue only

where the petitioner has established: (1) a lack of jurisdiction for the order of confinement

on the face of the judgment or in the record on which the judgment was rendered; or (2) that

he is otherwise entitled to immediate release because of the expiration of his sentence. See

State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000); Archer v. State, 851 S.W.2d 157, 164

(Tenn. 1993). The purpose of the habeas corpus petition is to contest a void, not merely a

voidable, judgment. State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968).

A void, as opposed to a voidable, judgment is “one that is facially invalid because the court

did not have the statutory authority to render such judgment.” See Summers v. State, 212

S.W.3d 251, 256 (Tenn. 2007). A petitioner bears the burden of establishing a void judgment

or illegal confinement by a preponderance of the evidence. See Wyatt v. State, 24 S.W.3d

319, 322 (Tenn. 2000).

Procedurally, we note that the failure to file a petition for a writ of habeas corpus in

the county of incarceration, absent a sufficient reason for not doing so, is a proper basis for

the dismissal of the petition. Tenn. Code. Ann § 29-21-105. “However, if a petition does

state a reason explaining why it was filed in a court other than the one nearest the petitioner,

the petition may be dismissed pursuant to this section only if the stated reason is

insufficient.” Davis v. State, 261 S.W.3d 16, 21 (Tenn. Crim. App. 2008). In Davis, the

court concluded that “the fact that the convicting court possesses relevant records and retains

the authority to correct an illegal sentence at anytime is a sufficient reason under Tennessee

Code Annotated section 29-21-105 for the petitioner to file in the convicting court rather than

the court closest in point of distance.” Id. at 22. Here, the Petitioner cited to Davis in his

brief and explained that he filed his petition in the Knox County Criminal Court because the

trial court “possesses the judgments and records in case numbers 49900 and 50934[,] . . . has

personal knowledge of . . . both cases[,] and was in the best position to adjudicate the issues

raised by this appeal.” Accordingly, we conclude that the Petitioner provided a sufficient

reason to file his documents in the convicting court, as opposed to the court in the county of

his incarceration.

Initially, the State asks this court to dismiss the Petitioner’s appeal as untimely. As

we have previously mentioned, this court entered an order on May 16, 2014, waiving the

timely filing of the notice of appeal for good cause shown. The State’s request to dismiss

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this appeal as untimely is not supported by the record and is without merit.

The Petitioner first contends that the judgments of conviction for Counts 1, 2, and 4

in Case No. 50934 are void because they failed to “fully identify the convictions and

sentences in [Case Nos.] 50928, 50929, and 50923,” which were a part of the same guilty

plea. The State responds that the judgments are facially valid and were not required to

reference other case numbers.

The record shows that the Petitioner entered a guilty plea on August 1, 1995, in Case

Nos. 50934 (Counts 1, 2, and 4), 50928, 50929, and 50932. Further, the guilty plea gave the

trial court discretion to impose an appropriate sentence. Also on August 1, 1995, the trial

court entered judgment forms for Counts 1, 2, and 4 in Case No. 50934. The judgment forms

make no mention of Case Nos. 50928, 50929, or 50932.

From the record before us, we cannot say whether the judgment forms in Case Nos.

50928, 50292, and 50923 do in fact exist and were not included in the record, or, instead,

whether no judgments were ever entered in those cases. It is incumbent upon the Petitioner

in a habeas corpus action to prove entitlement to relief. See Summers, 212 S.W.3d at 260.

There is a conclusive presumption that a judgment is valid in all respects and “such matters

[complained of in the habeas corpus petition] are foreclosed by that judgment, in the absence

of anything upon the face of the record to impeach the judgment.” Id. (quoting State ex rel.

Kuntz v. Bomar, 381 S.W.2d 290, 291-92 (Tenn. 1964). After reviewing the three judgments

of conviction entered in Case No. 50934 and the record as a whole, we cannot conclude that

the judgments are void on their face simply because they fail to reference the other cases

included in the guilty plea. Accordingly, the Petitioner is not entitled to relief on this issue.

Next, the Petitioner argues that the judgment of conviction in Count 1 of Case 50934

is too “indefinite and ambiguous” to run consecutively to Count 4 in Case 49900 because it

fails to include the date of the prior conviction and the specific count and terms of years

imposed in Case No. 49900. The State responds that these details are not required on the

judgments in order for them to be facially valid.

Tennessee Rule of Criminal Procedure 32(c) states that when a defendant pleads

guilty and the defendant has additional sentences not yet fully served, “the court shall recite

this fact in the judgment setting sentence, and the sentence imposed is deemed to be

concurrent with the prior sentence or sentences, unless it affirmatively appears that the new

sentence being imposed is to be served consecutively to the prior sentence or sentences.”

(Emphasis added). A review of the judgment form for Count 1 in Case No. 50934 shows that

in the “[c]onsecutive to” box, the trial court wrote “Case No. 49900 previously imposed by

Knox County Criminal Court.” The Petitioner has not cited to any authority that would

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require the date of the prior conviction or specific count and term of years imposed to also

be stated. Therefore, we find no defect on the face of the judgment, and the Petitioner’s claim

is without merit.

The Petitioner further contends that, assuming that Count 1 of Case No. 50934 is

definite and certain on its face, Counts 2 and 4 of Case No. 50934 are too “indefinite,

uncertain, and ambiguous” such that they cannot run consecutively to Case No. 49900. The

State responds that, as is indicated by the judgment forms, Counts 2 and 4 of Case No. 50934

were not intended to run consecutively to Case No. 49900, and thus, there is no defect in the

judgments.

As is clearly indicated by the judgment forms in Case No. 50934, Count 2 is ordered

to run consecutively to Count 1; Count 4 is ordered to run consecutively to Count 2. Because

Count 1 was ordered to be served consecutively to Case No. 49900, the total effect of the

judgments in Case No. 50934 is a twenty-five-year sentence that runs consecutively to the

twenty-five-year sentence imposed in Case No. 49900. We discern no ambiguity in the trial

court’s imposition of consecutive sentences, the judgments are valid on their fact, and the

Petitioner’s argument is thus without merit.

Finally, the Petitioner contends that his sentences in Case No. 50934 have expired.

Essentially, the Petitioner argues that Cowart I had the effect of invalidating the “manner of

service component” of his sentence in Case No. 49900, and, thus, the trial court could not

properly order his sentence in Case No. 50934 to run consecutively to Case No. 49900.

Based on this reasoning, the Petitioner concludes that his sentence in Case No. 50934 began

to run on August 1, 1995, and has expired. The State responds that the Petitioner’s demand

for relief would be better addressed under the Tennessee Administrative Procedures Act,

rather than in a habeas proceeding. The State further responds that in Cowart I this court did

not invalidate his twenty-five-year sentence imposed on Count 4 of Case No. 49900. Finally,

the State points out that even if this court were to accept the Petitioner’s argument that his

twenty-five-year sentence in Case No. 50934 began to run in 1995, he has only been

incarcerated on those charges for nineteen years and is, therefore, not entitled to habeas

relief.

We conclude that this issue has been previously litigated. Although the Petitioner

asserts that this issue is distinct from the one already decided by this court in Cowart II, we

discern no difference between the substance of the previously litigated issue and the

Petitioner’s current argument. As we have previously held, “[t]here is . . . nothing unlawful

in the trial court’s ordering that the [P]etitioner serve his sentence for aggravated robbery in

case number 50934 consecutively to the twenty-five-year sentence that remained in case

number 49900.” Cowart II, 2011 WL 3896942, at *2. A petitioner may not use habeas

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proceedings as a means to raise and relitigate issues previously ruled upon. Gant v. State,

507 S.W.2d 133, 137 (Tenn. Crim. App. 1973), cert. denied, (Tenn. 1974). Because we

conclude that this issue has been previously litigated, the Petitioner is not entitled to further

review of this issue.

CONCLUSION

Based upon the foregoing and the record as a whole, the judgment of the habeas

corpus court is affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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