IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE FILED NOVEMB ER SESSION, 1998 January 28, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk RONALD DEE WATT, ) C.C.A. NO. 03C01-9609-CR-00343 ) Appe llant, ) ) ) ROANE COUNTY VS. ) ) HON. E. EUGENE EBLEN STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Habeas Corpus)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF ROANE COUNTY

FOR THE APPELLANT: FOR THE APPELLEE: KENNETH F. IRVINE, JR. JOHN KNOX WALKUP W. Main Street, Suite 350 Attorney General and Reporter Knoxville, TN 37901-0084 MICH AEL J . FAHE Y, II Assistant Attorney General Fifth Avenu e North Nashville, TN 37243 CHARLES E. HAWK District Attorney General ROGER DE LP Assistant District Attorney General P.O. Box 703 Kingston, TN 37763

OPINION FILED ________________________ REVERSED AND REMANDED DAVID H. WELLES, JUDGE OPINION The Defendant, Ronald Dee Watt, appeals as of right from the Roane Coun ty Criminal Court’s dismissal of his petition for habeas corpus relief. The issue on appeal is whether the trial court erred by summarily dismissing the petition without appointing couns el or cond ucting an evidentiary hearing . We reverse the order dismissing the petition and remand this case for further proceedings.

W e will first attempt to sum marize, from the record before u s, the eve nts giving rise to the Defendant’s petition for writ of habeas corpus. On April 17, 1980, the Defendant pleaded guilty to one count of armed robbery with a sentence of ten years, two counts of concealing stolen property with a sentence of three years on each count, and two counts of arson with a sentence o f one year on each count. A ll sentenc es were ordered to be serv ed con secutive to each other, for an effective sentence of e ighteen years. T he sentenc es were ordered to be s erved conc urren tly with a sen tence the De fenda nt was serving in the federal pen itentiary for bank robb ery.

The Defendant was subsequently transferred back to federal custody for the service of his sentences. At some point thereafter he was released on pa role from federal custody. Subsequent to being released on parole, the Defendant was apparently charged with additional fede ral crimes and wa s returne d to federal custody. By order entered on January 16, 1992, the Criminal Court for Roane Coun ty, Tenn essee issued a capias fo r the arres t of the Defendant “for

-2- service of the portion of his sentence still owed to the Tennessee Department of Correc tion.”

On May 14, 1996 the Defendant filed a petition for writ of habeas corpus in the Criminal Court for Roane County. The petition alleged that he was an inmate in the federal penitentiary. He alleged that he was suffering collateral consequences from b eing ille gally an d unc onstitu tionally detained by virtue of the capias issued by the Roane County Criminal Court on January 16, 1992. In addition to his allegations of various constitutional violations, the Defendant alleged that his Tennessee sentence was illegal and void because he was sentenced pursuant to “an agreement between his court-appointed counsel and attorney genera l that [the trial cou rt] was powerless to order under Tenn. Code Ann. § 3 9-1-703 .”

The State filed a motion to dismiss the habeas corpus petition on the grounds (1) that T enne ssee Code Anno tated § 29-21 -102 e xclude d pers ons in federal custody from the benefit of State proceedings for a writ of habeas corpus, and (2) that the trial court had n o auth ority to o rder th e Def enda nt’s release from federal custody. The trial court issued an order dismissing the petition on the grounds that it failed to state a cause of action for whic h relief c ould be granted because the Defendant was in federal custody and § 29-21-102 “excludes persons in federal custody from benefit of filing writ of habea s corpu s in State proceeding . . . [and] . . . State of Tennessee has no authority to order release from federal custody even if grounds for relief existed.” It is from this order of dismissal that the Defendant appeals.

-3- The trial court dismissed the habeas corpus petition because the Defendant is in federal c ustody. Tennessee’s habeas corpus law is statutory and begins with the following provision: Any person imprisoned or restrained of his liberty, under any pretense whatsoever, except in cases specified in § 29-21-102, may prosec ute a writ of habe as corp us, to inquire into the cause of such imprison ment a nd restra int. Tenn. Code Ann. § 29-21-101. The exception referred to in the above sectio n provides as follows: Persons committed or detained by virtue of process issued by a court o f the U nited S tates, o r a judg e there of, in cases where such judges or courts have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of suits in such courts, are not entitled to the benefits o f this writ. Id. § 29-21-102.

W e read this statute to clearly provide that a State judge has no authority to order the release of a person who has been committed or is being detained, imprisoned, or restraine d of his liberty by virtue of an order of a federal co urt. In the petition filed herein, however, the Defendant is seeking to test the validity of the restraint on his liberty being caused by the capias for his arrest issued by the Criminal Court of Ro ane Cou nty, Tennessee. We do not believe that the Defe ndan t’s status as a federal prisoner deprives the Criminal Court of Roane Coun ty of any a uthority to inquire into the cause of the restraint on the Defe ndan t’s liberty as a result of the capias for the Defendant’s arrest which was issued by the Roane County C riminal Court in a p revious order. W e therefore conclude that the trial court was in error by summarily dismissing the habeas corpus pe tition on the ground s that the Defen dant was a federal prisoner.

-4- Although it is not entirely clear in the Defendant’s pro se habeas corpus petition, the Defendant primarily argues that his sentence is illegal because it was ordered to be served concurrently with a federal sentence when the law required that the sentence be served under the control and supervision of the State of Tennessee. At the time the Defendant was convicted of armed robbery, robbe ry accomplished by the use o f a dea dly weapon was a Class X felony. Tenn. Code Ann. § 39-1-702 (repealed 1989). The law provided that a sentence for a Class X felony would “[t]erminate or expire only after service o f the entire sentence, day for day, under the control and su pervision of the state o f Tennes see.” Id. § 39-1- (repealed 1989). The Defendant questions whether the trial judge had the legal authority to orde r his sentence to run concurrently with the federal sentence or whether he was required by the Class X felony law to order the Tennessee sentences to be served in the state penitentiary, presu mably after he was released from federal custody.

Tennessee courts have held that wh en the law requires the trial cour t to impose a consecutive sentence on a defendant convicted of a crime committed while on work release, the trial court is without jurisdiction or autho rity to enter a judgment against a defendant for a concu rrent sen tence. Henderson v. State ex rel. Lance, 419 S.W .2d 176 (Te nn. 1967); Taylor v. Morgan, 909 S.W.2d 17, 20 (Tenn. Crim. A pp. 199 5); see also Archer v. State, 851 S.W.2d 157, 163 (Tenn. 1993) (noting that because the trial court in Lance was witho ut autho rity to render a concurrent se ntence wh en statutorily required to make the sentence consecutive, the judgm ent was facially void , and a writ of ha beas corpu s cou ld issue to release Lance from his guilty plea).

-5- W e also note that the Defendant’s effective eighteen-year sentence was imposed on April 17 , 1980. The sente nce w as ord ered to be se rved co ncurre ntly with a fede ral sen tence . Assu ming that the conc urren t sente nce w as a le gal sentence, it becomes obvious that more than eighteen years has now passed since the sentence was imposed. Although there may well be reasons why the sentence has not expired, the Defend ant arg ues o n app eal tha t on its fa ce it appears that the sentence has expired.

Based on our review of the record and our understanding of the law, we do not believe that the trial judge should have dismissed the Defendant’s petition for habeas corpus relief without appointing counsel and allowing the Defendant the opportu nity to present his petition on the merits. If the Defendant’s eighteen-year sentence, ordered to be se rved co ncurre ntly with a federal sentence, is an illegal sentence, it is clear that the court h as the autho rity to cor rect it at any time, even if it has otherwise becom e final. State v. Burkha rt, 566 S.W.2d 871, 873 (Tenn. 1978). An illeg al sen tence is a nullity. Id. If the sentence was illegal, the status of the prosecution in Roane County would apparently return to the sentencing stage. At that stage, further proceedings on the Defendant’s plea would be governed by Rule 11 of the Tennessee Rules of Criminal Proced ure. See Taylor v. Morgan, 909 S.W .2d 17, 20 (T enn. Crim. A pp. 1995).

W e also point out that even if the Defendant can establish that he received an illegal sente nce, he may ne vertheles s be ineligib le for habeas corpus relief.

Obviously, if the Defendant is lawfully confined under authority of a federal court order, the Tennessee court may not order him discharged from custody. If his sentence is illegal and thus void, he remains subject to his original pending -6- charges in Roa ne Co unty. If his sente nce h as exp ired, he may w ell rem ain in lawful custody as a federal prisoner. In any event, we believe the Defendant may proceed with his habeas corpus proceeding to determine whether his Tennessee sentence is illegal or has expired.

The judgment of the trial court dismissing the Defendant’s habeas corpus petition is reversed. This case is remanded to the trial court for further proceedings.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ JAMES CURWOOD WITT, JR., JUDGE

___________________________________ L.T. LAFFERTY, SENIOR JUDGE

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