Opinion
No. M2006-01818-CCA-R3-HC.
Assigned on Briefs April 18, 2007.
Filed May 16, 2007.
Appeal from the Criminal Court for Davidson County No. 3714 Mark J. Fishburn, Judge.
Judgment of the Criminal Court Affirmed.
J. Chase Gober, Nashville, Tennessee, for the appellant, Ulysses M. Hampton.
Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee.
DAVID H. WELLES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.
OPINION
Petitioner, Ulysses M. Hampton, appeals from the habeas corpus court's summary dismissal of his petition seeking habeas corpus relief. The petition fails to raise a cognizable claim for habeas corpus relief and, insofar as the pleading may be considered a petition for post-conviction relief, the petition is time-barred. The judgment of the Davidson County Criminal Court summarily dismissing the petition is affirmed.
Factual Background
On August 22, 1997, the Petitioner pled guilty to second degree murder and received a sentence of fifty-five years as a Range III, persistent offender. The Petitioner filed a petition for a writ of habeas corpus on December 19, 2005. Counsel was appointed, and amended petitions were filed on June 8 and June 29 of 2006. As grounds for relief, the Petitioner alleged that his guilty plea was not knowingly and voluntarily entered because he was not advised that his sentence was outside of the statutory range.
The transcript of the guilty plea hearing reflects that the Petitioner also pled guilty to aggravated arson, reckless endangerment, and five counts of attempted second degree murder. All sentences for these offenses were to be served concurrently with the sentence for second degree murder. The Petitioner does not challenge these additional convictions or sentences.
The State filed a motion for summary dismissal, seeking dismissal of the petition on the basis that the Petitioner failed to state a cognizable claim for relief. The habeas corpus court granted the State's motion and entered an order of dismissal on August 14, 2006. It is from the order of dismissal that the Petitioner appeals.
ANALYSIS
The Petitioner advances on appeal the same argument he asserted in the habeas corpus court: his guilty plea was not knowing and voluntary because he was not advised by counsel or the trial court of the consequences of his plea. Specifically, he alleges that he did not have a prior criminal record sufficient to justify his being sentenced as a Range III, persistent offender and that he was not advised of that fact, thereby rendering his sentence "facially invalid or void. . . ."
Initially, we note that the determination of whether to grant habeas corpus relief is a question of law. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001), overruled in part on other grounds by State v. Summers, 212 S.W.3d 251, 262 (Tenn. 2007). The Tennessee Constitution guarantees a convicted criminal defendant the right to seek habeas corpus relief. See Tenn. Const. art. I, § 15. However, the grounds upon which our law allows relief are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). 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 (1) the convicting court was without jurisdiction or authority to sentence the defendant or (2) the defendant's sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). It is permissible for a trial court to summarily dismiss a petition for habeas corpus relief, without the appointment of counsel and without an evidentiary hearing, if there is nothing on the face of the judgment or the record of the proceedings to indicate that the convictions addressed therein are void. Passarella v. State, 891 S.W.2d 619 (Tenn.Crim.App. 1994).
A sentence imposed in direct contravention of a statute is illegal and thus void. Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000). On the other hand, a voidable judgment or sentence is one which is facially valid and which requires evidence beyond the face of the judgment or the record of the proceedings to establish its invalidity. Taylor, 995 S.W.2d at 83. A petitioner bears the burden of establishing a void judgment or illegal confinement by a preponderance of the evidence.Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).
Specifically, the Petitioner contends that, although he was advised he was receiving a Range III sentence, he was not advised that he did not qualify as a Range III offender based upon his criminal record and, therefore, his plea was not knowingly and voluntarily entered. Even if true, challenges to the validity of a guilty plea render the conviction voidable, not void. See Luttrell v. State, 644 S.W.2d 408, 409-10 (Tenn.Crim.App. 1982); see also Darryl Ford v. State, No. M2005-01854-CCA-R3-HC, 2006 WL 2206062, at *1 (Tenn.Crim.App., Nashville, July 31, 2006), perm. to appeal denied, (Tenn. Dec. 18, 2006); Douglas Hayden Kirkham, Jr. v. State, No. M2004-02635- CCA-R3-HC, 2005 WL 1025775, at *2 (Tenn.Crim.App., Nashville, May 3, 2005), perm. to appeal denied, (Tenn. Oct. 17, 2005).
Moreover, in McConnell v. State, our supreme court said broadly in addressing plea-bargain negotiations that issues of "offender classification and release eligibility" are "non-jurisdictional." 12 S.W.3d 765, 798 (Tenn. 2000). The Petitioner's fifty-five-year sentence for second degree murder was ordered in accordance with his plea agreement. The sentence was authorized by law and was not illegal.See Tenn. Code Ann. §§ 40-35-111(b)(1),-112(c)(1) (establishing maximum sentence of sixty years for Class A offenses). There is nothing on the face of the judgment or the proceedings upon which the judgment was rendered that establishes that the trial court was without jurisdiction or authority to sentence the Petitioner. The Petitioner's sentence has not expired. Therefore, the habeas corpus court did not err by summarily dismissing the petition.
We also note that, even if we treat the petition as one for post-conviction relief, the Petitioner is still not entitled to a hearing. The one-year statute of limitations for filing a petition for post-conviction relief has expired. See id. § 40-30-102(a). The pleading does not allege any grounds which would provide an exception to the statute of limitations. See id. § at (b). Moreover, the facts of this case simply do not require that the limitations period be tolled based upon due process considerations. See Burford v. State, 845 S.W.2d 204, 208-09 (Tenn. 1992). Accordingly, insofar as the Petitioner's pleading may be considered as a petition for post-conviction relief, it was properly dismissed as time-barred.
CONCLUSION
In accordance with the foregoing, we conclude that the Davidson County Criminal Court did not err by summarily dismissing the habeas corpus petition and that, if the petition is considered as one seeking post-conviction relief, it is barred by the one-year statute of limitations. The judgment is affirmed.