Opinion
No. M2003-00978-CCA-R3-CO.
Assigned on Briefs August 13, 2003.
Filed November 7, 2003.
Direct Appeal from the Circuit Court for Wayne County; No. 12970; Stella Hargrove, Judge.
Affirmed.
Marshall Moffett, pro se, Clifton, Tennessee.
Paul G. Summers, Attorney General Reporter; David H. Findley, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, Kevin Myers, Warden.
Jerry L. Smith, J., delivered the opinion of the court, in which Gary R. Wade, P.J., and David G. Hayes, J., joined.
OPINION
The pro se appellant appeals from the dismissal of his petition for the writ of habeas corpus. Finding that summary dismissal was appropriate under the circumstances of this case, we affirm the judgment of the lower court.
The appellant, Marshall Moffett, was convicted of aggravated sexual battery in 1985. Initially he was sentenced as a Range I offender, but on appeal, this Court determined that the Defendant was a Range II offender because he was on probation when he committed the offense.State v. Moffett, 729 S.W.2d 679, 683 (Tenn.Crim.App. 1986). On January 8, 2003, the appellant filed a petition for the writ of habeas corpus alleging that he was erroneously sentenced as a Range II offender and that his 35% release eligibility was illegal. He also complains that the lower court erred by refusing to appoint counsel to represent him. On March 8, 2003, the trial court dismissed the petition without a hearing. The instant pro se appeal followed.
The Tennessee Supreme Court has explained the very limited scope of habeas corpus relief in Tennessee as follows:
Habeas corpus relief is available in Tennessee 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). This Court has stated that "if the court rendering a judgment has jurisdiction of the person, the subject-matter, and has the authority to make the challenged judgment, the judgment is voidable, not void; and the judgment may not be collaterally attacked in a suit for habeas corpus relief." Passarella v. State, 891 S.W.2d 619, 627 (Tenn.Crim.App. 1994).
A trial court is not required, as a matter of law, to grant the writ and conduct an inquiry into the allegations contained in the petition.See Tenn. Code Ann. § 29-21-109; Passarella, 891 S.W.2d at 627. If the petition fails to state a cognizable claim, the petition may be dismissed by the trial court summarily. See Tenn. Code Ann. § 29-21-109; State ex rel. Byrd v. Bomar, 214 Tenn. 476, 483, 381 S.W.2d 280, 283 (1964). The statute provides in part: "If from the showing of the petitioner, the plaintiff would not be entitled to any relief, the writ may be refused. . . ." Tenn. Code Ann. § 29-21-109.
In this case, the appellant argues that he was improperly sentenced as a Range II offender. However, this question was decided in the appellant's direct appeal to this Court. See State v. Moffett, 729 S.W.2d 679, 683 (Tenn.Crim.App. 1986). This Court decided that under the pre-1989 version of Tennessee Code Annotated section 40-35-107, the appellant was on probation when he committed the offense; therefore the offense was labeled especially aggravated, and the appellant should have been sentenced as a Range II offender. Id. The fact that the offense for which the appellant was on probation did not constitute a criminal act in Tennessee was of no consequence in determining whether the appellant was on probation. See id. Thus, this issue has already been previously determined, is the law of the case, and cannot be revisited on habeas corpus review. See Morgan v. State, 1 Tenn. Crim. App. 454, 445 S.W.2d 477 (1969).
The appellant also contends that his 35% release eligibility date was illegal. At the time the appellant was originally sentenced, the release eligibility for a Range II offender was 40%. Tenn. Code Ann. § 40-35-501 (1984). However, the 1986 and 1987 versions of Tennessee Code Annotated section 40-35-501, which were in effect at the time of the appellant's re-sentencing, mandated a 35% release eligibility for Range II offenders. According to the comments to the 1986 statute, the statute was modified in 1985, and the 35% release eligibility was substituted for the pre-amendment 40% release eligibility.
This case is analogous to State v. Pearson, 858 S.W.2d 879 (Tenn. 1993), in which our supreme court remanded the defendant's first degree burglary conviction to the trial court for a determination of the appropriate sentence under both the 1982 and 1989 Sentencing Acts. The supreme court further instructed that after the trial court determined each sentence, it was to impose the lesser of the two sentences. In reaching this conclusion, the supreme court cited Tennessee Code Annotated section 39-11-112, which states:
Whenever any penal statute or penal legislative act of the state is repealed or amended by a subsequent legislative act, any offense, as defined by the statute or act being repealed or amended, committed while such statute or act was in full force and effect shall be prosecuted under the act or statute in effect at the time of the commission of the offense. . . . [I]n the event the subsequent act provides for a lesser penalty, any punishment imposed shall be in accordance with the subsequent act.
It is our opinion that the reasoning of the Pearson case is applicable in the appellant's case.
At the time of the appellant's re-sentencing, the release eligibility for Range II offenders was 35%. Tenn. Code Ann. § 40-35-501 (1987). Therefore, the sentence imposed by the trial court was not illegal or void, and his claim cannot form the basis for habeas corpus relief.
Finally, the trial court did not err by failing to appoint counsel for the appellant or by summarily dismissing his petition without an evidentiary hearing. While Tennessee Code Annotated section 40-14-204 allows for the appointment of counsel in habeas corpus cases where necessary, nothing in the record indicates that counsel was necessary in this case. There is no constitutional right to counsel in a habeas corpus proceeding. See Weatherly v. State, 704 S.W.2d 730, 732 (Tenn.Crim.App. 1985). Additionally, there is no mandatory right to an evidentiary hearing unless the petitioner raises a colorable claim. See Tenn. Code Ann. § 29-21-109; Byrd v. Bomar, 214 Tenn. 476, 483, 381 S.W.2d 280, 283 (1964). We hold that no error was committed by the trial court in refusing to appoint counsel or to conduct an evidentiary hearing.
Accordingly, the dismissal of the appellant's petition for habeas corpus relief is affirmed.