IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 29, 2013

BRANDON NEAL v. STATE OF TENNESSEE

Appeal from the Criminal Court of Hamilton County

No. 284432 Don W. Poole, Judge

No. E2012-01563-CCA-R3-PC-FILED-JANUARY 30, 2013

Brandon Neal (“the Petitioner”) filed for post-conviction relief from his guilty pleas to

attempted carjacking and aggravated assault, alleging that the Tennessee Department of

Correction (“TDOC”) violated his due processrights by miscalculating hissentences and that

TDOC’s actions have rendered his pleas constitutionally infirm. The post-conviction court

summarily denied relief, and this appeal followed. Upon our thorough review of the record,

we affirm the judgment of the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment

of the Criminal Court Affirmed

JEFFREY S. BIVINS, J., delivered the opinion of the Court, in which ALAN E. GLENN and

ROGER A. PAGE, JJ., joined.

Brandon Neal, Pikeville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General & Reporter; and Kyle Hixson, Assistant Attorney

General, for the appellee, State of Tennessee.

OPINION

According to his petition for post-conviction relief, the Petitioner pled guilty on July

5, 2007, to attempted carjacking in case number 253537. He received a plea-bargained

Range I sentence of four years to be served in TDOC. On November 13, 2007, the Petitioner

pled guilty to aggravated assault in case number 265198 and, pursuant to his plea-bargain,

received a sentence of four years’ probation to be served consecutively to his sentence in case

number 253537. The Petitioner’s sentence in case number 253537 expired on December 26,

2009, and he was released from TDOC. The Petitioner then began serving his probationary

sentence in case number 265198.
On March 28, 2010, the Petitioner was “charged and jailed for [a]ggravated [a]ssault.”

As a result, the Petitioner’s probation on case number 265198 subsequently was revoked and

his four-year sentence “reinstated.” The Petitioner pled guilty to the second aggravated

assault (case number 276370) and, pursuant to his plea-bargain, was sentenced to ten years

“at 35%, to be served on probation after he had served the remainder of the sentence

incarcerated in case number 265198.”

Thereafter, according to the petition, in 2012, TDOC “altered the Petitioner’s 4 year

sentence by reinstating the expired sentence in case number 253537 effectively lengthening

the Petitioner’s 4 year sentence into an 8 year sentence; and also extended the sentence

expiration date of the 4 year sentence as well.”

The Petitioner filed his petition for post-conviction relief on July 9, 2012, attaching

copies of his judgments, copies of “TOMIS” letters from TDOC, copies of print-outs

specifying sentence credits, and a copy of a letter dated May 3, 2012, from an “Adm. Serv.

Asst.” of the Office of the General Counsel of TDOC. This letter states that it is in response

to the Petitioner’s petition for a declaratory order regarding the Petitioner’s sentence

calculations, and it denies the requested petition. The letter recites that the Petitioner’s

sentence in case number 253537 expired on December 26, 2009, and that, as of the date of

the letter, his sentence in case number 265198 expires on November 29, 2013. The Petitioner

alleged as grounds for post-conviction relief that TDOC’s actions constituted a breach of his

plea agreements in cases 253537 and 265198, violated his due process rights, and rendered

his pleas in those cases constitutionally infirm. The Petitioner also alleged that TDOC

improperly calculated his service credits in these cases.

The post-conviction court summarily denied the Petitioner’s petition for postconviction relief by written order filed July 16, 2012, noting first “that neither the expiration

of a sentence nor a clerical error in a judgment is a ground for post-conviction relief.” The

court then elected to treat the petition as one for habeas corpus relief and/or a motion for

correction of clerical errors in a judgment.

The court denied habeas corpus relief on the basis that the Petitioner was not being

confined pursuant to an expired sentence. The court explained:

From the record, it does appear that, as [TDOC] acknowledges in its May

letter, which is more recent than the April TOMIS offender sentence letter, the

sentence in case 253537 has expired and is not a cause of the petitioner’s

present confinement. The sentence in case 265198, however, was consecutive

to the sentence in case 253537. In case 265198, the sum of pre-plea and prerevocation jail credit (16 June 2007, 5 July - 13 November 2007, 16 April 2010

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- 12 May 2011, or about one year, four months) and post-revocation

confinement (12 May 2011 - the present, or about one year, two months) is

only about two years, six months, less than the length of the four-year

sentence.

The court also disagreed that the Petitioner’s allegation “that the omission of jail credits for

post-judgment confinement or probation or the omission of behavior credits” constituted a

clerical error in the judgments, and, accordingly, also denied relief on that basis.

The court recognized that “[t]he remedy for sentence miscalculations by [TDOC], a

state agency, lies under the Uniform Administrative Procedures Act” and, therefore, that it

lacked jurisdiction to address the Petitioner’s actual complaint. Accordingly, the court

summarily dismissed the Petitioner’s petition for post-conviction relief. The Petitioner

timely appealed.

Standard of Review

This Court reviews de novo a post-conviction court’s summary dismissal of a petition

for post-conviction relief. See Arnold v. State, 143 S.W.3d 784, 786 (Tenn. 2004).

Analysis

Relief pursuant to a post-conviction proceeding is available only where the petitioner

demonstrates that his or her “conviction or sentence is void or voidable because of the

abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of

the United States.” Tenn. Code Ann. § 40-30-103 (2012). Examples of claims which are

cognizable under the Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 to -122

(2012), include claims that the petitioner’s lawyer provided ineffective assistance of counsel

at trial, see, e.g., Pylant v. State, 263 S.W.3d 854, 868 (Tenn. 2008), and claims that the

petitioner’s guilty plea was constitutionally infirm. See, e.g., Sexton v. State, 151 S.W.3d

525, 531-33 (Tenn. Crim. App. 2004).

Although the Petitioner has attempted to characterize his claim for relief as arising

from constitutionally infirm guilty pleas, we agree with the post-conviction court, and the

State on appeal, that this matter is not cognizable in a post-conviction proceeding. It is clear

that the gravamen of the Petitioner’s complaint is TDOC’s calculation of his sentences.

TDOC’s calculations were made long after the Petitioner entered his guilty pleas. TDOC’s

1

 Although the Petitioner focuses his complaints on TDOC, he apparently fails to understand that,

1

(continued...)

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actions do not render the Petitioner’s guilty pleas constitutionally infirm. Moreover, as

recognized by the post-conviction court, actions taken by TDOC regarding a defendant’s

sentence calculation do not form a basis for a claim under the Post-Conviction Procedures

Act. See Rendell Corey Jones v.James T. Fortner, Warden, No. E2009-00233-CCA-R3-HC,

2009 WL 3364354, at *3 (Tenn. Crim. App. Oct. 20, 2009) (holding that complaints of

improper sentence calculation do not fall within the purview of the Post-Conviction

Procedures Act); Rodney Welch v. State, No. W2008-01179-CCA-R3-PC, 2009 WL

1741394, at *2 (Tenn. Crim. App. June 15, 2009) (affirming summary dismissal of petition

containing the words “post-conviction” where petitioner alleged sentence had been

improperly calculated). Rather, the Petitioner’s proper avenue of relief , if any is due him,

is under the Uniform Administrative Procedures Act. See Tenn. Code Ann. §§ 4-5-101 to

-325 (2011).

We also agree with the post-conviction court that the Petitioner has failed to

demonstrate that he is entitled to habeas corpus relief. Under the United States and

Tennessee Constitutions, a convicted criminal enjoysthe right to pursue habeas corpusrelief.

U.S. Const. art. 1, § 9, cl. 2; Tenn. Const. art. I, § 15. In Tennessee, however, habeas corpus

has been governed by statute for over a century. See Ussery v. Avery, 432 S.W.2d 656, 657

(Tenn.1968); Tenn. Code Ann. § 29-21-101 (Supp. 2011). The “grounds upon which habeas

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

1999). Moreover, “the purpose of a habeas corpus petition is to contest void and not merely

voidable judgments.” Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel

Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968)). “A void judgment is one in

which the judgment is facially invalid because the court lacked jurisdiction or authority to

render the judgment or because the defendant’s sentence has expired.” Taylor, 995 S.W.2d

at 83 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998) and Archer v. State, 851

S.W.2d 157, 161-64 (Tenn. 1993)). A petitioner must prove that his or her judgment is void

or sentence has expired by a preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319,

322 (Tenn. 2000).

(...continued) 1

upon revocation of his probation in case number 265918 on May 12, 2011, the trial court had the authority

(which it evidently exercised) to “order the original judgment so rendered to be in full force and effect from

the date of the revocation of the suspension, and that it be executed accordingly.” Tenn. Code Ann. § 40-35-

310(a) (2010). As pointed out by the post-conviction court, the copy of the judgment order reflecting the

revocation of probation, attached by the Petitioner to his pleading, indicates pretrial and pre-revocation jail

credits totaling approximately sixteen months. Four years from May 12, 2011, less sixteen months, results

in a sentence expiration date of approximately January 11, 2014, excluding any sentence reduction credits. 

As set forth above, TDOC has calculated this sentence to expire on November 29, 2013.

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While the imposition of an illegal sentence by a trial court may entitle a defendant to

habeas corpus relief, see, e.g., Cantrell v. Easterling, 346 S.W.3d 445, 453 (Tenn. 2011), the

Petitioner does not complain that the trial court sentenced him to an illegal sentence in either

case number 253537 or case number 265198. Rather, as set forth above, the Petitioner is

complaining about actions taken by TDOC after the trial court imposed sentence. TDOC’s

actions do not render the Petitioner’s judgments void. Nor do TDOC’s actions render illegal

the sentences imposed by the trial court. Accordingly, the Petitioner is not entitled to habeas

corpus relief on this basis.

Finally, we agree with the trial court that the Petitioner has not established that he is

entitled to the correction of a clerical error in his judgments. See Tenn. R. Crim. P. 36.

Again, the Petitioner’s complaint stems from actions taken by TDOC, not from actions taken

by the trial court in filling out the judgment orders. Accordingly, the Petitioner is entitled to

no relief on this basis.

In sum, we hold that the post-conviction court committed no error in summarily

dismissing the Petitioner’s petition.

Conclusion

For the reasons set forth above, we affirm the judgment of the post-conviction court.

_________________________________

JEFFREY S. BIVINS, JUDGE

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