Billy Debow v. State of Tennessee ( 2016 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs September 13, 2016
    BILLY DEBOW v. STATE OF TENNESSEE
    Appeal from the Criminal Court for Sumner County
    No. 358-1998     Dee David Gay, Judge
    No. M2016-00753-CCA-R3-HC – Filed October 26, 2016
    The petitioner, Billy DeBow, appeals the summary dismissal of his petition for writ of
    habeas corpus, which petition challenged his 1999 conviction of first degree murder.
    Because the interest of justice does not require that we waive the timely filing of the
    notice of appeal in this case, the appeal is dismissed.
    Tenn. R. App. P. 3; Appeal Dismissed
    JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT L.
    HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.
    Billy DeBow, Whiteville, Tennessee, pro se.
    Herbert H. Slatery III, Attorney General and Reporter; and Sophia S. Lee, Assistant
    Attorney General, for the appellee, State of Tennessee.
    OPINION
    In 1999, a Sumner County Criminal Court jury convicted the petitioner of
    the premeditated murder of Jimmy Lee Wiggins. The trial court imposed a sentence of
    life imprisonment, and this court affirmed the conviction on direct appeal. See State v.
    Billy Gene DeBow, Sr., No. M1999-02678-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App.,
    Nashville, Aug. 2, 2000), perm. app. denied (Tenn. Mar. 12, 2001) (“DeBow I”). The
    petitioner filed a timely but unsuccessful petition for post-conviction relief, and, seven
    years later, after post-conviction counsel failed to timely perfect an appeal of the denial
    of post-conviction relief, the petitioner filed a motion to reopen his petition or, in the
    alternative, to procure a delayed appeal of the denial of post-conviction relief. See Billy
    Gene DeBow, Sr. v. State, No. M2008-00580-CCA-R3-PC, slip op. at 2 (Tenn. Crim.
    App., Nashville, Mar. 10, 2009) (“DeBow II”). This court dismissed the petitioner‟s
    untimely appeal of the motion to reopen, finding that the interest of justice did not require
    waiver of the untimely filing of the appeal. See 
    id. In June
    2013, the petitioner moved
    the trial court to correct the judgment to reflect the appropriate award of pretrial jail
    credits, and the trial court granted the petitioner‟s motion and entered an amended
    judgment on July 1, 2013. 1
    On February 18, 2016, the petitioner filed a petition for writ of habeas
    corpus, alleging that the amended judgment form filed on June 28, 1999, was void
    because the trial court lacked jurisdiction to change the petitioner‟s sentence from life
    imprisonment without the possibility of parole to life imprisonment and to amend the
    judgment after it had become final. The habeas corpus court summarily denied the
    petition, finding that “[t]he records in this case reflect that there was an error on the first
    judgment entered, as „life without parole‟ was the sentence that was reflected. That
    judgment was amended and filed with the Court on June 28, 1999, to reflect the sentence
    of „Life.‟” The habeas corpus court also observed that the challenged June 28, 1999
    judgment had been superseded by the second amended judgment filed on July 1, 2013,
    which also reflected a sentence of life imprisonment.
    In this appeal, the petitioner reiterates his claim that the June 28, 1999
    judgment was void. The State argues that the appeal is untimely and that the interest of
    justice does not require a waiver of the timely filing of the notice of appeal because the
    petitioner failed to comply with the procedural requirements for filing a petition for writ
    of habeas corpus and because the judgment currently in effect is not void.
    The habeas corpus court entered its order on February 26, 2016, and the
    petitioner, who was incarcerated in Whiteville, Tennessee, filed a notice of appeal on
    March 31, 2016,2 more than 30 days later. See Tenn. R. App. P. 4(a). In criminal cases,
    however, “the „notice of appeal‟ document is not jurisdictional and the filing of such
    document may be waived in the interest of justice.” 
    Id. We agree
    with the State,
    however, that waiver is not required in this case.
    “The determination of whether habeas corpus relief should be granted is a
    question of law.” Faulkner v. State, 
    226 S.W.3d 358
    , 361 (Tenn. 2007) (citing Hart v.
    State, 
    21 S.W.3d 901
    , 903 (Tenn. 2000)). Our review of the habeas corpus court‟s
    decision is, therefore, “de novo with no presumption of correctness afforded to the
    [habeas corpus] court.” 
    Id. (citing Killingsworth
    v. Ted Russell Ford, Inc., 
    205 S.W.3d 406
    , 408 (Tenn. 2006)). The writ of habeas corpus is constitutionally guaranteed, see
    1
    The record on appeal does not indicate the process utilized by the petitioner to obtain the
    correction of his judgment.
    2
    Although the notice of appeal document bears a stamped filed date of April 8, 2016, we give the
    incarcerated petitioner the benefit of the “mailbox rule,” see Tenn. R. Crim. P. 49(d), and consider his
    notice of appeal filed as of the date indicated in the document itself.
    -2-
    U.S. Const. art. 1, § 9, cl. 2; Tenn. Const. art. I, § 15, but has been regulated by statute for
    more than a century, see Ussery v. Avery, 
    432 S.W.2d 656
    , 657 (Tenn. 1968). Tennessee
    Code Annotated section 29-21-101 provides that “[a]ny person imprisoned or restrained
    of liberty, under any pretense whatsoever, except in cases specified in § 29-21-102, may
    prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and
    restraint.” T.C.A. § 29-21-101. Despite the broad wording of the statute, a writ of
    habeas corpus may be granted only when the petitioner has established a 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, 432 S.W.2d at 658
    ; State v.
    Galloway, 45 Tenn. (5 Cold.) 326 (1868). The purpose of the state 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 conviction is one which strikes at
    the jurisdictional integrity of the trial court. Archer v. State, 
    851 S.W.2d 157
    , 164 (Tenn.
    1993); see State ex rel. Anglin v. Mitchell, 
    575 S.W.2d 284
    , 287 (Tenn. 1979); Passarella
    v. State, 
    891 S.W.2d 619
    , 627 (Tenn. Crim. App. 1994).
    As the State correctly points out, the petitioner failed to comply with the
    statutory requirement that he file his petition for writ of habeas corpus in the court “most
    convenient in point of distance to the” petitioner or, in the alternative, provide “a
    sufficient reason . . . in the petition for not applying to such court or judge.” See T.C.A. §
    29-21-105. The petitioner filed his petition for writ of habeas corpus in the trial court
    instead of the court closest to his place of incarceration, and he provided no reason for
    having done so. Summary dismissal would have been appropriate on this basis alone.
    Additionally, the habeas corpus court found, after a review of the record of
    the underlying proceedings, that the trial court entered the June 28, 1999 amended
    judgment to correct a clerical error and did not, as the petitioner claimed, change the
    petitioner‟s sentence. This court‟s opinion in DeBow II stated that the petitioner was
    originally “sentenced to life without parole” and that “[s]oon thereafter, an amended
    judgment was entered sentencing the petitioner to life imprisonment.” DeBow II, slip op.
    at 1. Our opinion in DeBow I, however, gives no indication that the petitioner was
    originally sentenced to life without the possibility of parole and states simply that the
    petitioner “was sentenced to life imprisonment.” DeBow I, slip op. at 1. Indeed, our
    opinion in DeBow I contains no indication that the State sought a sentence of life without
    the possibility of parole or that a bifurcated sentencing hearing occurred, despite a
    lengthy analysis on the trial court‟s instructions to the jury regarding potential
    punishment. See 
    id., slip op.
    at 8-9. If the purpose of the entry of the amended judgment
    was correction of a clerical error, then the trial court had the authority to enter it,
    regardless of whether the judgment had become final. See Tenn. R. Crim. P. 36 (“After
    giving any notice it considers appropriate, the court may at any time correct clerical
    mistakes in judgments, orders, or other parts of the record, and errors in the record arising
    -3-
    from oversight or omission.”). In any event, the procedural history of the case indicates
    that when the amended judgment was filed on June 28, 1999, the trial court retained
    jurisdiction of the petitioner‟s case because the motion for new trial was pending at that
    time. See DeBow II, slip op. at 1 (“A motion for new trial was filed, followed by a direct
    appeal.”); see also Tenn. R. App. P. 4(c)(4).
    Under these circumstances, it is our view that the interest of justice does not
    require that we waive the timely filing of the notice of appeal document in this case.
    Accordingly, the appeal is dismissed.
    _________________________________
    JAMES CURWOOD WITT, JR., JUDGE
    -4-