        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE            FILED
                         JANUARY SESSION, 1997          July 23, 1997

                                                   Cecil W. Crowson
STATE OF TENNESSEE,          )                   Appellate Court Clerk
                                  C.C.A. NO. 01C01-9601-CR-00013
                             )
      Appellee,              )
                             )
                             )    SUMNER COUNTY
VS.                          )
                             )    HON. JANE WHEATCRAFT
JOHN L. GOODW IN, III,       )    JUDGE
                             )
      Appellant.             )    (Sentencing & Habeas Corpus)


              ON APPEAL FROM THE JUDGMENTS OF THE
                CRIMINAL COURT OF SUMNER COUNTY


FOR THE APPELLANT:                FOR THE APPELLEE:

JOHN L. GOODW IN, III.            JOHN KNOX W ALKUP
Pro Se - Habeas Corpus            Attorney General and Reporter

JOHN R. PHILLIPS, JR.             KATHY MORANTE
Attorney - Sentencing             Assistant Attorney General
117 East Main Street              450 James Robertson Parkway
Gallatin, TN 37066                Nashville, TN 37243

                                  LAWRENCE RAY WHITLEY
                                  District Attorney General

                                  DEE GAY
                                  Assistant District Attorney General
                                  113 West Main Street
                                  Gallatin, TN 37066




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                      OPINION

       This is an appeal as of right pursuant to Rule 3, Tennessee Rules of

Appellate Procedure. The Defendant appeals both his sentence and the trial

court’s denial of his petition for writ of habeas corpus. These separate appeals

were consolidated by the trial court and filed with one appellate record. The

Defendant raises the following issues regarding his sentence: (1) That the trial

court erred in classifying the Defendant as a Range II offender; (2) that the trial

court improperly sentenced him to consecutive terms for his two convictions; (3)

that the trial court misapplied sentence enhancement factors; and (4) that the trial

court erred by imposing a longer sentence upon remand. The Defendant also

raises the following issues pro-se regarding his petition for habeas corpus: (1)

That the trial court was biased against the Defendant; (2) that the trial court erred

by refusing to correct perjured testimony and that his due process rights were

violated by the State’s failure to produce exculpatory evidence; and (3) that the

trial court erred by denying his petition when the attorneys involved in his case

had formed a conspiracy to deprive the Defendant of his liberty. W e affirm the

judgments of the trial court.



       The Defendant was convicted by a Sumner County jury on December 12,

1989, of second-degree burglary and assault with intent to commit rape.1 He was

sentenced to eight years on each count, to be served consecutively.                           The

Defendant initially waived an appeal, but filed a post-conviction petition and was



1
  The Defendant was charged with offenses enumerated in the criminal code under the
Criminal Sentencing Reform Act of 1982; for second-degree burglary, Tenn. Code Ann. § 39-3-
403 , and for as sau lt with intent to com m it rape, T enn . Code A nn. § 39-2 -608 (a).

                                               -2-
granted a delayed appeal to this Court. State v. Goodwin, 909 S.W .2d 35 (Tenn.

Crim. App. 1995). His convictions were affirmed, but the case was remanded for

resentencing because the record did not reflect that the trial court considered

both the 1982 and 1989 sentencing acts in consideration of the ex post facto

provisions of the United States and Tennessee constitutions. Id. at 45. W e also

remanded for the trial court to place on the record its consideration of

enhancement factors as well as its decision to impose consecutive sentences.

Id. at 45-46. On remand, the trial court sentenced the Defendant under the 1982

act as an especially aggravated offender to consecutive nine-year sentences for

the burglary and the attempted rape. The Defendant now appeals his sentences

imposed upon resentencing.



      Prior to the hearing for resentencing, the Defendant submitted a petition

for habeas corpus relief. At the resentencing hearing on August 22, 1995, the

trial court denied the petition without a hearing. The Defendant filed an appeal

to this Court. Although represented by counsel on the sentencing issues, the

Defendant presents this appeal, on his habeas corpus petition, pro-se.



      W e first address the Defendant’s petition for habeas corpus relief. He

alleges that relief is proper based on the following arguments. First, he contends

that the trial court failed to grant a hearing on his petition for habeas corpus

because the trial judge, as well as the Sumner County government, was biased

against him because he had sued the government in a civil matter and because

he sent letters to the jurors who had presided at his trial. Next, he argues that the

State failed to provide him with potentially exculpatory evidence contained in

statements made by the victim in this case, therefore depriving him of his

                                         -3-
constitutional right to cross-examine the witnesses against him.          Third, he

contends that the prosecutors, the public defender, and his private attorney

conspired against him, resulting in what appears to be a claim of ineffective

assistance of counsel. The trial court denied the petition, finding that it was

rendered moot after the Defendant was resentenced. We agree that the petition

was properly denied, but for a different reason.



       Habeas corpus relief is available only when it appears on the face of the

judgment that a conviction is void or when the petitioner's term of imprisonment

has expired. Tenn. Code Ann. § 29-21-101; State v. Archer, 851 S.W .2d 157,

164 (Tenn. 1993).     It is well settled that where a judgment is not void, but is

merely voidable, such 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); Archer, 851 S.W.2d at 163. In the present case, the petitioner has not

alleged that he is being held upon an expired sentence or that the judgment

against him is void, and thus, the we affirm the trial court’s dismissal of the

petition.



       W e note that the trial court could have treated the habeas corpus petition

as a post-conviction relief petition, Tenn. Code Ann. § 40-30-205 (c), however,

any petition for post-conviction relief would be premature, considering that the

Defendant has not exhausted his appeals. See Tenn. Code Ann. § 40-30-202(a).

Therefore, the trial court's dismissal of the petition without considering it as one

for post-conviction relief was entirely proper.




                                        -4-
      W e now turn to the issues regarding the Defendant’s resentencing. When

an accused challenges the length, range, or the manner of service of a sentence,

this court has a duty to conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstances." State v. Ashby, 823 S.W .2d 166, 169

(Tenn. 1991).



      In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Sm ith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



      If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).




                                        -5-
       As an initial matter, we will briefly recount the facts in the case sub judice

as described in the opinion on the Defendant’s first appeal and will discuss

additional other facts when relevant to the issues in this appeal.



       On August 3, 1989, the victim returned from work
       to her home, in Hendersonville, Tennessee, between 3:30 and 4:00 in
       the afternoon. She went back to her bedroom to lie down. While she
       was lying down, she heard a door slam. Thinking it was her daughter
       or husband, whom she was expecting, the victim got up to see who it
       was. Upon opening the door to her bedroom, she saw the Defendant
       standing in her hallway. She told him to get out of her house, but he
       grabbed her by the arms and pushed her into the adjacent guest
       bedroom. The victim stated at trial that the Defendant repeated, "You
       know you want it," several times. The victim attempted to fight the
       Defendant off. He pushed her onto the bed, ripped her blouse, tore her
       bra and pulled off her pantyhose.

              As the victim and Defendant were fighting, they heard her
       husband's truck in the driveway. The Defendant got up and attempted
       to leave the house, but the victim's husband grabbed him as he was
       trying to walk out the door. The victim called the police, and the victim's
       husband got the Defendant's name and license plate number to "buy
       some time" until the police could get there. W hen the victim's husband
       thought the police should almost be at the house, he let the Defendant
       go. An officer arrived, radioed the license plate number to a back-up
       officer and the back-up officer picked up the Defendant.


State v. Goodwin, 909 S.W.2d 35, 38 (Tenn.Crim.App. 1995).



       The Defendant asserts that the trial court erred by determining that he was

a Range II offender. This issue is intertwined with the determination of which

sentencing act to follow in sentencing the Defendant. W e articulated this problem

in his first appeal:


       The Defendant committed the crime in August of 1989. He was
       convicted in December of 1989. He was sentenced February 8, 1990,
       under the 1989 Sentencing Act as a Range II offender to eight years on
       both counts to run consecutively to each other for an effective sentence
       of sixteen years. The 1989 Sentencing Act went into effect November
       1, 1989. The trial court was able to sentence the Defendant under the

                                           -6-
        new sentencing act because, Tennessee Code Annotated section
        40-35-117 states, "Unless prohibited by the United States or
        Tennessee constitution, any person sentenced on or after November
        1, 1989, for an offense committed between July 1, 1982 and November
        1, 1989, shall be sentenced under the provisions of this chapter."
        Tenn.Code Ann. § 40-35-117(b).

              The Sentencing Commission Comments following Tennessee
        Code Annotated section 40-35-117 state "[b]ecause of the ex post facto
        provisions of the Tennessee and United States constitutions, a
        defendant sentenced after November 1, 1989, for an offense committed
        between July 1, 1982, and November 1, 1989, may not receive a
        greater punishment than he would have received under the prior law."


Goodwin, 909 S.W .2d at 45.



        On remand, the trial court considered both sentencing acts, but determined

that, because the 1989 act contains sentence enhancement factors that are not

present in the 1982 act, their use could subject the Defendant to punishment in

violation of the ex post facto provisions. See Tenn. Code Ann. § 40-35-114;

Tenn. Code Ann. § 40-35-111 (repealed). 2 Our supreme court has held that the

trial court must com pute the Defendant's sentences under both the 1989

sentencing act and the pre-1989 sentencing act in this situation. State v.

Pearson, 858 S.W .2d 879, 884 (Tenn.1993). Rather than considering specific

elements used in calculating a sentence, the trial court “must calculate the

appropriate sentence[s] under both the 1982 statute and the 1989 statute, in their

entirety, and then impose the lesser sentence of the two.” Id.




        Under the 1982 act, the sentence for assault with intent to commit rape for

a Range I offender is 2 to 6 years and for a Range II offender is 6 to 10 years.

2
  The 19 82 act provides for ten (10) enh ancem ent factors unde r § 40-3 5-11 1. The c urrent
version of the 1989 ac t under § 40-35-114 contains twenty-one (21) enhancement factors.

                                                   -7-
Tenn. Code Ann. § 39-2-608(a); §§ 40-35-109(a), (b) (repealed).           Second-

degree burglary carries 3 to 9 years for a Range I offender and 9 to 15 years for

Range II. Tenn. Code Ann. § 39-3-403(b)(1); § 40-35-109(a), (b) (repealed).

Under the 1989 act, assault with intent to commit rape is a Class C felony and

has a sentence of 3 to 6 years for a range I offender and 6 to 10 years for Range

II. Tenn. Code Ann. § 40-35-118; § 40-35-111(b)(3); §§ 40-35-112(a)(3), (b)(3).

Second-degree burglary is a Class C felony, punishable with 3 to 6 years for

Range I and 6 to 10 years for Range II. Tenn. Code Ann. § 40-35-118; § 40-35-

11(b)(3); §§ 40-35-112(a)(3), (b)(3).



      W e first consider the Defendant’s sentences in accordance with the 1982

act. Under the act, a defendant must be sentenced as a Range II offender upon

proof of an especially aggravated offense. Tenn. Code Ann. § 40-35-107; § 40-

35-109(c) (repealed). An especially aggravated offense is “ a felony resulting in

death or bodily injury or involving the threat of death or bodily injury to another

person where the defendant has previously been convicted of a felony that

resulted in death or bodily injury.” Tenn. Code Ann. § 40-35-107 (repealed). In

the case at bar, the Defendant was convicted of burglary and rape in 1981. The

victim submitted a statement of the incident in which the Defendant and two

others stopped her car and robbed her. She stated that the Defendant hit her

about the face and pulled her hair to force her to comply with his demands, then

forcibly raped her in the car. The investigating officer testified that he observed

red marks on the victim’s face. The trial court found this to be sufficient proof of

bodily injury in the previous incident. Indeed, bodily injury may include “a cut,

abrasion, bruise, burn, or disfigurement; physical pain; illness or impairment of

the function of a bodily member, organ or mental faculty.” Tenn. Code Ann. § 40-

                                        -8-
35-107(5)(A) (repealed). W e believe the red marks on the victim’s face suffice

to show she sustained bodily injury when the Defendant hit her. See State v.

W alter R. Callahan, C.C.A. No. 03C01-9303-CR-00085, Hamilton County (Tenn.

Crim. App., Knoxville, June 27, 1994).



      As for the current convictions, the victim testified that she sustained

scratches on her back in the form of red marks where the Defendant had forcibly

pulled off her bra. Again, we agree with the trial court that this constitutes bodily

injury. See State v. Locke, 771 S.W .2d 132, 135 (Tenn. Crim. App. 1988).

Therefore, this amply supports the finding that the attempted rape was an

especially aggravated offense meriting the imposition of Range II sentencing.

Accordingly, Range II sentencing of 6 to 10 years for the assault with intent to

commit rape and 9 to 15 years for the burglary conviction is appropriate.



      W e now consider the applicable enhancement factors. The trial court

found no mitigating factors and the Defendant is not challenging this conclusion.

The trial court applied two enhancement factors to each offense; factor (10), that

the defendant had no hesitation about committing a crime where the risk to

human life was high, and factor (6) the personal injuries inflicted upon or the

amount of damage to property sustained by the victim was particularly great.

Tenn. Code Ann. §§ 40-35-111(6), (10) (repealed).



      Regarding factor (6), there is evidence that the victim underwent emotional

trauma and engaged in ongoing counseling beginning shortly after the incident.

"Personal injury" as expressed in enhancement factor (6) encompasses

emotional and psychological injuries as well as physical injuries sustained by the

                                         -9-
victim. State v. Hoyt, 928 S.W .2d 935, 948 (Tenn. Crim. App. 1995); State v.

Melvin, 913 S.W.2d 195 (Tenn. Crim. App. 1995)(citing State v. Sm ith, 891

S.W.2d 922 (Tenn. Crim. App. 1994)). However, before this factor may be

applied, the State has the burden of establishing that the emotional injuries and

psychological scarring are "particularly great." Id. Here, there is testimony in the

record that the victim’s life was severely disrupted. She was unable to return to

live in her home because of the incident and later sold the house because of her

emotional impairment. We believe that such severe consequences for the victim

constituted injuries that were “particularly great.” See State v. Williams, 920

S.W.2d 247, 259-60 (Tenn. Crim. App. 1995). The trial court properly applied

this enhancement factor to both the burglary and attempted rape convictions.



      Next, the trial court applied enhancement factor (10), that the defendant

had no hesitation about committing a crime when the risk to human life was high.

The Defendant followed the victim from thirty to fifty miles from her place of

business in Brentwood to her home in Hendersonville. He observed the victim

enter her home and he entered the house knowing she, and possibly others,

were inside. This has been sufficient proof to enhance a burglary conviction

using factor (10). See State v. Jimmy Ray Potter, C.C.A. No. 01C01-9301-CC-

00021, Fentress County, (Tenn. Crim. App, Nashville, Mar. 17, 1994); cf. State

v. Avery, 818 S.W .2d 365, 369 (Tenn. Crim. App. 1991). In addition, we also find

this factor applicable to the attempted rape. Even though the victim informed the

Defendant that her husband would arrive, which he did, the Defendant ignored

this and continued to pursue the assault upon the victim. There was a great risk

that a confrontation and injuries could have resulted. Therefore, factor (10) was

appropriately applied.

                                        -10-
      The Defendant is subject to a 6 to 10 year sentence for the attempted rape

and 9 to 15 years for second-degree burglary. The trial court sentenced him to

nine years for each offense based on classifying the Defendant as a Range II

offender. We agree that the record supports the imposition of nine years for the

attempted rape and burglary convictions as a Range II offender because the

Defendant can be classified as an especially aggravated offender.



      Yet, this does not end our inquiry. W e must also consider the sentences

under the 1989 sentencing act. In order to establish the Defendant as a Range

II offender, the State must prove him to be a multiple offender. Tenn. Code Ann.

§ 40-35-106. This requires that a defendant have “[a] minimum of two (2) but not

more than four (4) prior felony convictions within the conviction class, a higher

class, or within the next two (2) lower felony classes.” Tenn. Code Ann. § 40-35-

106(a)(1). However, “[c]onvictions for multiple felonies committed as part of a

single course of conduct within twenty-four (24) hours, constitute one (1)

conviction for the purpose of determining prior convictions;         however, acts

resulting in bodily injury or threatened bodily injury to the victim or victims shall

not be construed to be a single course of conduct.” Tenn. Code Ann. §

40-35-106.



      The Defendant was convicted in 1981 of rape, a Class B felony, and

robbery, a Class C felony. See Tenn. Code Ann. § 40-35-118 (classification of

prior felony offenses). Both occurred during the same course of conduct, but the

rape involved bodily injury, which would ordinarily satisfy a finding that the

Defendant is a multiple offender. However, this Court has held that the twenty-

four hour merger rule exception requires “more than one previous act involving

                                        -11-
bodily injury or threatened bodily injury.” State v. Horton, 880 S.W .2d 732, 736

(Tenn. Crim. App. 1994). We believe that in addition to the bodily injury suffered

by the victim during the rape, there was a threat of bodily injury in perpetration of

the robbery.    The victim was driving her car when the Defendant and his

accomplices approached in their vehicle. They bumped the victim’s car several

times, then blocked the road to make her stop. Intentionally colliding with another

vehicle from behind and forcing a confrontation by blocking the road provides a

distinct threat of bodily injury. Therefore, we agree that the Defendant may

properly be classified as a Range II offender. This subjects him to a sentence of

6 to 10 years each for the burglary and attempted rape. W e have discussed two

enhancement factors, which also exist under the 1989 act, and we conclude that

they are applicable to the offenses in question. As a result, we find the record

supports sentences of nine years for each conviction.



      Our calculations of both the 1982 and 1989 sentencing acts reveal that the

trial court was permitted to sentence under the 1989 act without implicating the

ex post facto provisions. We note that the appropriate sentence range for the

assault with intent to commit rape as a Range II offender is 6 to 10 years under

both acts. However, second-degree burglary carries a 9 to 15 year sentence as

Range II under the 1982 and 6 to 10 years as Range II under the 1989 act.

Thus, because the Defendant is not exposed to a greater punishment under the

1989 provisions, sentencing under this act is required. Tenn.Code Ann. §

40-35-117(b).    Therefore, we conclude that, although the trial judge erred by

sentencing the Defendant under the 1982, the error was harmless. The nine-

year sentences were within the sentencing range under the 1989 act and are




                                        -12-
supported by the record. Therefore, we affirm the sentence imposed by the trial

court.



         In a related issue, the Defendant asserts that the trial court erred by basing

its resentencing decision upon proof basically the same as that offered in the

previous sentencing hearing. He notes that this Court vacated that previous

sentence. However, we remanded because the trial court (1) did not compare

the 1982 and 1989 sentencing acts; and (2) did not adequately place on the

record the basis for enhancing the Defendant’s sentence and for imposing

consecutive sentences. This does not equate with the proof being insufficient to

support the trial court’s decisions, but that the record was insufficient to allow

review of the sentence. However, we do acknowledge the Defendant’s argument

that the trial judge on resentencing found fewer enhancement factors but

sentenced him to an increased sentence. He contends that a presumption of

vindictiveness may arise when the same sentencing authority imposes a higher

sentence on remand from a successful appeal, thus implicating due process

concerns. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d

656 (1969); State v. Russell, 800 S.W .2d 169, 174 (Tenn. 1990). Our supreme

court has addressed the vindictiveness issue, citing Alabama v. Smith, 490 U.S.

794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989):

         As we explained in Texas v. McCullough, “the evil the [Pearce] Court
         sought to prevent” was not the imposition of “enlarged sentences after
         a new trial” but “vindictiveness of a sentencing judge.” . . . Such
         circumstances are those in which there is a “reasonable likelihood,” that
         the increase in sentence is the product of actual vindictiveness on the
         part of the sentencing authority. Where there is no such reasonable
         likelihood, the burden remains upon the defendant to prove actual
         vindictiveness.


Russell, 800 S.W.2d at 174. (citations omitted).

                                          -13-
      In the case sub judice, a reasonable likelihood that Judge W heatcraft,

upon resentencing this case, had a vindictive motive is not evident. We note first

that a different judge, Judge Kelly, presided at the original sentencing hearing,

and thus, any risk of vindictiveness by that trial judge being confronted by

resentencing is nonexistent. Absent evidence that a likelihood of vindictiveness

is present by Judge W heatcraft, the Defendant must demonstrate actual

vindictiveness. A trial judge is vested with discretion when fixing a sentence for

an offense and when a different judge presides in a new proceeding, differing

results may reasonably occur. W e find nothing in the record that suggests actual

vindictiveness from the trial judge presiding at the resentencing hearing. Thus,

we cannot conclude that the Defendant’s due process rights have been violated.

This issue is without merit.



      Finally, the Defendant argues that the trial court erred in sentencing him

to consecutive terms. The trial court found that the Defendant was a dangerous

offender, which requires that an offender’s “behavior indicates little or no regard

for human life, and no hesitation about committing a crime in which the risk to

human life is high.” Tenn. Code Ann. § 40-35-115(b)(4). Beyond this, it must be

shown that “an extended sentence is necessary to protect the public against

further criminal conduct by the defendant and that the consecutive sentences

must reasonably relate to the severity of the offenses comm itted.” State v.

W ilkerson, 905 S.W.2d 933, 939 (Tenn. 1995); see State v. Taylor, 739 S.W.2d

227, 230 (Tenn. 1987); Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976).



      The trial court found that the Defendant was a dangerous offender, stating

that he had a history of mental illness and hospitalizations, a history of violence

                                       -14-
such as beating people up, and admits he is full of rage. The trial judge also

noted that the Defendant lied to others and lied to the court about his education.

He demonstrated no remorse for the offenses committed in 1981 and 1989 and

showed little chance of rehabilitation. He had a poor military and employment

record, never holding down a job for long and also being terminated from his last

job for inappropriate behavior toward a female employee.



      The trial court also found that the circumstances of the offense were

aggravated because the Defendant premeditated the crime by following the victim

across the Nashville area to her hom e in a remote subdivision. In addition, when

he was arrested, he had a “hit list” of ten women, some with asterisks by their

names, and he could not substantiate a legitimate purpose for such a list. The

trial judge also found the mental anguish suffered by the victim aggravated the

offense. As a result, she determined that the sentences imposed reasonably

related to the seriousness of the offenses and that the previous factors

demonstrated that society needed to be protected from the Defendant’s behavior.



      W e believe that the trial court carefully considered the attendant facts in

addition to proof of the dangerousness of the Defendant’s behavior and that they

justify a need to protect society from his future actions. Therefore, we cannot

conclude that the trial court erred in consecutively sentencing the Defendant.



      Accordingly, we affirm the judgment of the trial court.




                                       -15-
                         ____________________________________
                         DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JOE G. RILEY, JUDGE




                             -16-
