IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 24, 2013

CARL P.E. MUNSEY v. JOHN T. HOWERTON, WARDEN

Appeal from the Criminal Court for Morgan County

No. 2013-CR-29 E. Eugene Eblen, Judge

No. E2013-01139-CCA-R3-HC - Filed December 3, 2013

The petitioner, Carl P.E. Munsey, challenges his sentences for three 1978 convictions for

armed robbery. The petitioner’s claim is primarily based on an assertion that the sentencing

provisions of the statute he was sentenced under had been repealed by the legislature and his

sentences are therefore illegal. The habeas corpus court dismissed the petition without a

hearing. We conclude that the sentences are not illegal, and we affirm the judgment of the

habeas corpus court.

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

JOHN EVERETTWILLIAMS, delivered the opinion of the Court, in which NORMAMCGEEOGLE

and ROBERT W. WEDEMEYER, JJ., joined.

Carl P.E. Munsey, Wartburg, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; and John H. Bledsoe, Senior Counsel,

for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

On October 10, 1978, a jury convicted the petitioner and co-defendant Roger Bowlin

of committing three armed robberies which took place in August 1978. The jury fixed the

punishment for each conviction at fifty years’ imprisonment, and the trial court elected to run

the sentences consecutively to one another so that the petitioner received an aggregate

sentence of one hundred and fifty years.

In 1987, this Court affirmed the denial of a post-conviction petition filed by the
petitioner. Munsey v. State, CCA No. 96, 1987 WL 17306, at *1-2 (Tenn. Crim. App. Sept.

22, 1987). A few years later, the petitioner sought habeas corpus relief. The petitioner

asserted that Tennessee Code Annotated section 39-3901 (1975 & Supp. 1978), which at the

time of his trial contained language purporting to authorize the death penalty for armed

robbery, had been invalidated by the United States Supreme Court’s decision in Furman v.

Georgia, 408 U.S. 238 (1972) and that “it was unconstitutional for the jury to sentence him

for armed robbery pursuant to the statute.” Munsey v. State, No. 01C01-9209-CR-00299,

1993 WL 143544, at *1 (Tenn. Crim. App. May 6, 1993). This Court upheld the dismissal

of the petition, citing State v. Bowers, 673 S.W.2d 887, 889 (Tenn. Crim. App. 1984) for the

proposition that “previous case law did not abolish or change the definition of armed robbery

or invalidate a defendant’s conviction and sentence.” Munsey v. State, 1993 WL 143544, at

*1. The Court concluded that “[w]hile case law did effectively eliminate the unconstitutional

punishment of death from Tennessee’s old robbery statute, the other provisions of the statute

remained constitutionally sound, including the remaining sentencing penalties.” Id.

The petitioner filed the instant habeas corpus petition on March 27, 2013. While the

petitioner does not allege that the armed robbery statute under which he was convicted is

void in its entirety, he contends that the sentencing provision employed was repealed y the

legislature and that, consequently, his sentences are illegal.

ANALYSIS

The right to habeas corpus relief is guaranteed under article I, section 15 of the

Tennessee Constitution. Although the writ may be sought at any time, the grounds upon

which relief may be granted are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn.

1999). The writ may issue “only when ‘it appears upon the face of the judgment or the

record of the proceedings upon which the judgment is rendered’ that a convicting court was

without jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of

imprisonment or other restraint has expired.” Archer v. State, 851 S.W.2d 157, 164 (Tenn.

1993) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (Tenn. 1868)). In other

words, a petitioner will not be granted relief unless he is able to establish that the judgment

he challenges is void rather than merely voidable. Hogan v. Mills, 168 S.W.3d 753, 755

(Tenn. 2005). A void judgment shows upon the face of the record a lack of jurisdiction in

the court rendering the judgment; a voidable judgment, on the other hand, “ is facially valid

and requires proof beyond the face of the record or judgment to establish its invalidity.”

Edwards v. State, 269 S.W.3d 915, 920 (Tenn. 2008) (quoting Summers v. State, 212 S.W.3d

251, 256 (Tenn. 2007)). A sentence imposed in direct contravention of a statute is void.

Summers, 212 S.W.3d at 256.

The trial court is authorized to dismiss a petition without a hearing if the petition does

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not establish that the challenged judgment is void. Hogan, 168 S.W.3d at 755 (citing T.C.A.

§ 29-21-109). The denial of a petition for habeas corpus relief is a question of law and is

reviewed de novo with no presumption of correctness. Edwards, 269 S.W.3d at 919.

At the time of the petitioner’s crimes, the robbery statute provided, in pertinent part:

Robbery is the felonious and forcible taking from the person of

another, goods or money of any value, by violence or putting the

person in fear. Every person convicted of the crime of robbery

shall be imprisoned in the penitentiary not less than five (5) nor

more than fifteen (15) years; provided, that if the robbery be

accomplished by the use of a deadly weapon[,] the punishment

shall be death by electrocution, or the jury may commute the

punishment to imprisonment for life or for any period of time

not less than ten (10) years.

T.C.A. § 39-3901(a) (Supp. 1978). This language was originally put into place by Chapter

72, section 1 of the Public Acts of 1955. When the United States Supreme Court’s decision

was rendered in Furman v. Georgia, 408 U.S. 238 (1972), however, it became clear that the

death penalty, as it was imposed by the statute, was unconstitutional. Accordingly, in

Chapter 192 of the Public Acts of 1973, the legislature attempted to revise those sections of

the Code, including the robbery statute, which authorized the death penalty. Section 4 of

Chapter 192 of the 1973 Public Acts provided that the robbery statute “is amended by

deleting the following words from that section: ‘death by electrocution, or the jury may

commute the punishment to.’” After the change, the pertinent language read: “if the robbery

be accomplished by the use of a deadly weapon[,] the punishment shall be imprisonment for

life or for any period of time not less than ten (10) years.” T.C.A. § 39-3901 (1975).

However, this attempt to alter the robbery statute (and other statutes authorizing the death

penalty) was unsuccessful due to a captions clause violation in Chapter 192. State v. Hailey,

505 S.W.2d 712, 714-15 (Tenn. 1974); see Tenn. Const. art. I § 17. The invalidation of the

new law brought back into force the language and all of those provisions of the old law

which had not been declared unconstitutional under the United States Supreme Court’s new

death penalty jurisprudence. See T.C.A. 39-3901 (Supp. 1976); Collins v. State, 550 S.W.2d

643, 645 (Tenn. 1977). The statute, at the time of the petitioner’s conviction, thus contained

the language authorizing electrocution, although that provision was not applied due to the

Supreme Court’s decision in Furman.

The State asserts that the petitioner premises relief on grounds which are identical to

those addressed in the petitioner’s previous habeas corpus action. The petitioner, however,

contends that in his prior petition, he sought to have his convictions declared void because

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the statute, in its entirety, was unconstitutional under Furman. He distinguishes his present

action by asserting that he does not challenge his convictions or premise relief on the

statute’s conflict with Furman; instead, he challenges only his sentences and bases relief on

an unreported Court of Appeals case dismissing a declaratory judgment action brought by

his co-defendant in Bowlin v. Walkup, No. 01A01-9805-CH-00246, 1999 WL 33087, at *1

(Tenn. Ct. App. Jan. 27, 1999).

In Bowlin, the co-defendant filed a declaratory judgment action to have the armed

robbery statute declared unconstitutional. While the grounds of the co-defendant’s action

are not specified in the opinion, the Court of Appeals dismissed the case, holding:

1

In light of the fact that the portion of the statute of which

appellant now purports to complain was repealed by the General

Assembly of Tennessee in Chapter 192, section 4 of the Public

Acts of 1973, a full five years prior to Appellant’s indictment on

the offenses for which he is now incarcerated, there is thus no

justiciable controversy in this case and petitioner has neither

standing nor interest in challenging this former statute.

Bowlin, 1999 WL 33087, at *1. The Bowlin opinion does not indicate that 1973 Public Acts,

Chapter 192, which purported to amend the robbery statute, was invalidated by Hailey, 505

S.W.2d at 714-15.

The petitioner points to this language in the Bowlin opinion as evidence that

legislative action or judicial action (by the Court of Appeals in Bowlin) has voided the

entirety of that section of the statute which delineates a separate punishment for robbery

committed with a deadly weapon. See T.C.A. § 39-3901(a) (Supp. 1978). According to the

petitioner, because the punishment for robbery with a deadly weapon is completely

invalidated, the only statutorily authorized punishment is that for simple robbery – five to

fifteen years’ imprisonment. In other words, the petitioner believes that the “portion of the

statute” referred to in Bowlin includes the section authorizing the death penalty and

imprisonment for ten years to life. However, the petitioner misreads Bowlin. Even if the

Public Act referred to by the Court of Appeals had been valid, the “portion of the statute”

cited by the Bowlin opinion is limited to the sections authorizing “death by electrocution” or

commuting the punishment, and it does not extend to the other punishments, including life

in prison, authorized by the statute for the crime of robbery by the use of a deadly weapon.

According to the petitioner, the co-defendant claimed that the statute was unconstitutional because

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it allowed the jury to commute a punishment, which the co-defendant alleged was a solely executive function

under article II, section 2 and article III, section 6 of the Tennessee Constitution.

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Insofar as the petitioner claims that the legislature abolished a separate punishment

for robbery committed with a deadly weapon in Chapter 192 of the Public Acts of 1973,

leaving intact only the punishment for simple robbery, his claim must fail for two reasons.

First, the Act which amended the sentencing provisions was held to be void in Hailey.

Hailey, 505 S.W.2d at 714-15. Second, the language of the Act clearly excises only the

portion of the statute referencing death and commutation, leaving intact the punishment range

of ten years’ to life imprisonment for robbery committed with a deadly weapon. 1973 Tenn.

Pub. Acts ch. 192 § 4. Accordingly, there is no merit in any claim that the petitioner’s

sentences are void because the sentencing provisions had been repealed through legislation.

The petitioner deniesthat his current petition presentsissuesidentical to those decided

in his previous habeas corpus petition. We nevertheless note that, insofar as he challenges

the constitutionality of the sentencing based on the language authorizing electrocution, this

Court’s 1993 decision also governs his claims. This Court, in addressing his previous habeas

corpus petition, concluded that, “[w]hile case law did effectively eliminate the

unconstitutional punishment of death from Tennessee’s old robbery statute, the other

provisions of the statute remained constitutionally sound, including the remaining sentencing

penalties.” Munsey v. State, 1993 WL 143544, at *1 (emphasis added). In other words,

while after Furman it was no longer constitutional to impose the death penalty as set forth

in the statute prohibiting armed robbery, the remaining range of punishment detailed in the

statute, spanning from ten years’ to life imprisonment, was unaffected. This Court has, after

Furman, upheld life sentences imposed for armed robbery convictions. See, e.g., State v.

Painter, 614 S.W.2d 86, 90 (Tenn. Crim. App. 1981) (concluding that life sentence was

authorized for armed robbery committed in 1979); Walker v. State, 544 S.W.2d 905, 907

(Tenn. Crim. App. 1976) (“Life imprisonment is a prescribed punishment for armed robbery,

and therefore is not excessive.”). Because this Court, in addressing the petitioner’s previous

habeas corpus filing, upheld as constitutional all portions of the statute other than the

provision for the death penalty – “including the remaining sentencing penalties” – the

petition was properly dismissed as previously determined insofar as it is premised on a claim

that the statutory punishment is unconstitutional. Munsey v. State, 1993 WL 143544, at *1.

CONCLUSION

Because the sentences are neither constitutionally nor statutorily void, we affirm the

dismissal of the petition.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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