         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs March 26, 2008

       RAYMOND DAVID WRIGHT v. HOWARD CARLTON, Warden

                 Direct Appeal from the Criminal Court for Johnson County
                            No. 5116     Robert E. Cupp, Judge



                      No. E2007-02653-CCA-R3-HC - Filed April 28, 2008



The Petitioner, Raymond David Wright, pled guilty to second degree murder in 1993 in exchange
for a fifty year sentence as a Range III offender. He filed a petition for habeas corpus relief claiming
his sentence was illegal because, had he been tried and convicted, he would be considered only a
Range I offender. Thus, he claims his fifty-year sentence is illegal. The Petitioner further asserts
second degree murder is not a lesser included offense of first degree felony murder, and, therefore,
the trial court had no jurisdiction to sentence him. The habeas court dismissed the petition without
a hearing. After a thorough review of the record and applicable law, we affirm the judgment of the
habeas court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and J.C.
MCLIN , JJ., joined.

Raymond David Wright, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; David
H. Findley, Assistant Attorney General; Anthony W. Clark, District Attorney General, for the
Appellee, the State of Tennessee.


                                              OPINION

                                               I. Facts

       According to the State’s statement of evidence at the guilty plea hearing, the Petitioner
entered a house, killed a woman, and stole a VCR and large radio. He was charged with first degree
premeditated murder and first degree felony murder. He pled guilty to second degree murder on the
charge of felony murder in exchange for the first degree premeditated murder charge being dropped.
As a part of the agreement, the Petitioner received a fifty-year sentence as a Range III offender. The
trial court noted that, had the Petitioner gone to trial and been convicted of a crime, he would have
been sentenced as a Range I offender. The Petitioner acknowledged this, but asserted his plea
agreement was in his best interest because he could be sentenced to life in prison if the jury
convicted him of first degree murder.

         In 2007, the Petitioner filed a petition for habeas corpus relief asserting two claims: (1) that
his fifty year sentence as a Range III offender is illegal; and (2) that he was convicted of a charge,
second degree murder, of which no information or indictment was filed. The State filed a motion
to dismiss the habeas corpus petition, which was granted without a hearing by the habeas court. In
its order, the court found that the Petitioner’s allegations, even if true, did not render his judgments
illegal. It is from this judgment that the Petitioner now appeals.

                                             II. Analysis

        Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief. See Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007). Although the right is guaranteed
in the Tennessee Constitution, the right is governed by statute. T.C.A. § 29-21-101 (2006) et seq.
The determination of whether habeas corpus relief should be granted is a question of law and is
accordingly given de novo review. Smith v. Lewis, 202 S.W.3d 124, 127 (Tenn. 2006); Hart v. State,
21 S.W.3d 901, 903 (Tenn. 2000). Although there is no statutory limit preventing a habeas corpus
petition, the grounds upon which relief can be granted are very narrow. Taylor v. State, 995 S.W.2d
78, 83 (Tenn. 1999). It is the burden of the petitioner to demonstrate by a preponderance of the
evidence that “the sentence is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319,
322 (Tenn. 2000). In other words, the very narrow grounds upon which a habeas corpus petition can
be based are as follows: (1) a claim there was a void judgment which was facially invalid because
the convicting court was without jurisdiction or authority to sentence the defendant; or (2) a claim
the defendant’s sentence has expired. Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000);
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “An illegal sentence, one whose imposition
directly contravenes a statute, is considered void and may be set aside at any time.” May v. Carlton,
— S.W.3d —, 2008 WL 160695, at *3 (Tenn. 2008) (citing State v. Burkhard, 566 S.W.2d 871, 873
(Tenn. 1978)). In contrast, a voidable judgment is “one that is facially valid and requires the
introduction of proof beyond the face of the record or judgment to establish its invalidity.” Taylor,
995 S.W.2d at 83; see State v. Richie, 20 S.W.3d 624, 633 (Tenn. 2000).

        The Petitioner’s first allegation, that he was sentenced illegally, is not supported by the law.
The Defendant agreed to a fifty-year sentence as a Range III offender, and that sentence is within the
acceptable bargaining range. Pursuant to Hoover v. State, “a plea-bargained sentence may legally
exceed the maximum available in the offender range so long as the sentence does not exceed the
maximum punishment authorized for the plea offense.” 215 S.W.3d 776, 780 (Tenn. 2007). The
conviction, second degree murder, had a total range of fifteen to sixty years. See T.C.A. § 39-13-210
(c) (1990) (second degree murder is a Class A felony); T.C.A. § 40-35-101 (1990) (total range for
a Class A felony is 13.5 to 60 years). Offender classification and sentence range are legitimate


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bargaining tools. See Hicks v. State, 945 S.W.2d 706, 709 (Tenn. 1997). The Petitioner is not
entitled to relief on this issue.

         The Petitioner’s second allegation, that he pled guilty to a charge on which he was not
indicted because second degree murder is not a lesser included offense of first degree felony murder,
is similarly not supported by the law. Pursuant to State v. Ely, second degree murder is a lesser
included offense of felony murder. 48 S.W.3d 710, 721-22 (Tenn. 2001); accord State v. Locke, 90
S.W.3d 663, 669 (Tenn. 2002). The Petitioner has failed to prove the trial court was without
jurisdiction to sentence him after a guilty plea to second degree murder. The Petitioner is not entitled
to relief on this issue.

                                           III. Conclusion

        After due consideration of the issues, we conclude that the trial court did not err in denying
the Petitioner’s petition for habeas corpus relief. As such, we affirm the judgment of the habeas
court.

                                                             ________________________________
                                                              ROBERT W. WEDEMEYER, JUDGE




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