IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 2000 SESSION
February 24, 2000
PAUL A. MAYES, * C.C.A. # E1999-01374-CCA-R3-CD
Cecil Crowson, Jr.
Appellant, * MORGAN COUNTY Appellate Court Clerk
VS. * Hon. E. Eugene Eblen, Judge
STATE OF TENNESSEE, * (Habeas Corpus)
Appellee. *
For Appellant: For Appellee:
Joe H. Walker Paul G. Summers
District Public Defender Attorney General and Reporter
Susan Corea Fuller Ellen H. Pollack
Assistant Public Defender Assistant Attorney General
P.O. Box 334 425 Fifth Avenue North
Harriman, TN 37748 Nashville, TN 37243
Scott McCluen
District Attorney General
P.O. Box 703
Kingston, TN 37763
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The petitioner, Paul A. Mayes, appeals the trial court's dismissal of his
petition for writ of habeas corpus. In this appeal of right, the single issue presented
for review is whether the petition was properly dismissed.
We affirm the judgment of the trial court.
In 1987, the petitioner entered pleas of guilt to first degree burglary
and grand larceny. Afterward, he was found to be a habitual criminal based upon
several prior offenses:
(1) Second degree burglary, July 14, 1977 (victim, Jack Smith);
(2) Second degree burglary, September 7, 1977 (victim, Orvil
Watson);
(3) Second degree burglary, September 7, 1977 (victim, Jay
Lewis);
(4) Second degree burglary, November 10, 1978 (victim, Joyce
Bishop);
(5) Second degree burglary, November 10, 1978 (victim, Glenda
Inman); and
(6) Escape, December 12, 1981.
All the offenses occurred in Knox County. Because the defendant was found to be
a habitual criminal, the trial court enhanced the sentence to a term of life in prison.
The petitioner filed a direct appeal, challenging the finding of habitual criminality,
and this court affirmed. State v. Paul Allen Mayes, No. 1183 (Tenn. Crim. App., at
Knoxville, Oct. 20, 1988). The supreme court denied application for permission to
appeal (concurring in results only) on January 30, 1989. In 1988, the petitioner was
convicted of first degree burglary, aggravated assault, second degree burglary, and
grand larceny. On May 7, 1999, the petitioner, who was incarcerated in Morgan
County, filed a petition for habeas corpus relief alleging that because the trial court
failed to sign certain judgments, a portion of his prior convictions were facially
invalid. In particular, the petitioner challenged the 1987 and 1988 convictions in
Knox County in Case Numbers 27211, 26030, and 26031.
The state produced minute entries for December 16, 1987, which
established that in Case No. 27211, the petitioner pled guilty to first degree burglary
(count one of the indictment) and grand larceny (count two of the indictment) and
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was found guilty of habitual criminality (counts seven and eight of the indictment).
Certified minutes, attested to and certified by a deputy clerk, include the following
language:
(s) John J. Duncan, Jr.
John J. Duncan, Jr., Judge
Division I
Criminal Court
The state also filed copies of four judgments dated September 14, 1988, in Case
Nos. 26030 and 26031, which bore the photocopied signature of Randall E. Nichols,
Judge. The offenses were grand larceny, second degree burglary, first degree
burglary, and aggravated assault. Copies of minute entries documenting those
judgments are included in the record.
Upon review of the documents, the petitioner withdrew his objections
to the facial validity of the two convictions in No. 26030 and the two convictions in
No. 26031. The petitioner insisted that the state's failure to provide photo copies of
judgments bearing the signature of the judge in each of the counts in No. 27211
entitled him to habeas corpus relief. In support of his argument, the petitioner cites
Tenn. Code Ann. § 16-1-106:
Minutes.--(a) The minutes of the court for each day's
work shall be signed by the judge. The minute book shall
provide a place for the judge's signature after the minute
entries each day; however, where the orders of the court
are photocopied so that an accurate facsimile of the
entire order and judge's signature appears, it shall be
sufficient for the judge to sign at the end of the minute
book approving all of the minutes in the book.
The trial court denied relief on the basis that the petition did not establish that the
convicting court was without jurisdiction and did not establish that the sentence had
been served.
In this state, a writ of habeas corpus may be granted only when a
petitioner has established lack of jurisdiction for the order of confinement or that he
is otherwise entitled to immediate release because of the expiration of his sentence.
See Ussery v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell,
443 S.W.2d 839 (Tenn. Crim. App. 1969). A "person imprisoned or restrained of his
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liberty, under any pretense whatsoever, . . . may prosecute a writ of habeas corpus,
to inquire into the cause of such imprisonment . . . ." Tenn. Code Ann. § 29-21-101.
The writ of habeas corpus, however, is available only when it appears on the face of
the judgment or the record that the trial court was without jurisdiction to convict or
sentence the defendant or that the sentence of imprisonment has otherwise expired.
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60,
62 (Tenn. 1992). Trial courts may summarily dismiss the petition for writ of habeas
corpus without the appointment of a lawyer and without an evidentiary hearing if
there is nothing on the face of the judgment to indicate that the convictions
addressed therein are void. Passerella v. State, 891 S.W.2d 619 (Tenn. Crim. App.
1994).
Here, the petitioner does not allege that the trial court was without
jurisdiction and does not contend that his sentences have expired. He merely
indicates that the judgments in Case No. 27211 are void for the failure of the state to
provide documentation including the judge's signature.
Initially, our review suggests that the petitioner does not attack any of
the judgments of conviction utilized to establish him as a habitual criminal and
nothing in the record indicates that his life sentence has expired. Moreover, there
were separate convictions and sentences for grand larceny and first degree
burglary. The petitioner, in our view, has not established a basis to set aside any of
the counts of conviction in 27211. It has long been held that the statutory
requirement that trial judges sign the minutes is directory only, not mandatory.
Jackson v. Jackson, 3 Shannon Cases 18 (1878); State ex rel. Pierce v. Hardin, 163
Tenn. 471, 43 S.W.2d 924 (1931). That proposition was upheld in a case cited by
the petitioner, Howard v. State, 217 Tenn. 556, 399 S.W.2d 738 (1966). Thus, the
failure of a trial judge to sign as directed by the statute does not render the judgment
a nullity. Crum v. Fillers, 6 Tenn. App. 547 (1926); Duboise v. State, 200 Tenn. 93,
290 S.W.2d 646 (1956). Because the statute at issue is directory rather than
mandatory, the petitioner would not be entitled to any relief in Case No. 27211 due
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to facial invalidity.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
Joseph M. Tipton, Judge
_____________________________
James Curwood Witt, Jr., Judge
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