        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs November 1, 2011

      CARL ROSS v. HENRY STEWARD, WARDEN, AND STATE OF
                          TENNESSEE

                Appeal from the Circuit Court for Lauderdale County
                        No. 6496 Joe H. Walker, III, Judge




               No. W2011-01634-CCA-R3-HC - Filed January 12, 2012


The Petitioner, Carl Ross, appeals the Lauderdale County Circuit Court’s summary dismissal
of his petition for habeas corpus relief from his 1995 convictions for two counts of attempted
second degree murder, three counts of aggravated robbery, and one count of theft over
$1000, and resulting sentence of 162 years’ confinement. The Petitioner contends that the
trial court did not have jurisdiction to sentence him as a Range III, career offender. We
affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J ERRY L. S MITH and
A LAN E. G LENN, JJ., joined.

Carl Ross, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter and Jeffrey D. Zentner, Assistant
Attorney General, for the appellee, State of Tennessee.


                                         OPINION


       On January 27, 1995, the Petitioner was convicted by a Shelby County Criminal Court
jury of the above offenses. On February 3, 1995, the State filed a notice of enhanced
punishment and a motion for consecutive sentencing. The trial court classified the Petitioner
as a Range III, career offender and imposed consecutive sentences of thirty years for each
attempted second degree murder and aggravated robbery conviction and twelve years for the
theft conviction, giving the Petitioner an effective 162-year sentence.

        The Petitioner filed a petition for habeas corpus relief contending that his convictions
were void because the trial court lacked jurisdiction to classify him as a Range III, career
offender. The Petitioner argued that the trial court lacked authority to sentence him as a
career offender because the State failed to file a timely notice of enhanced punishment. The
trial court summarily dismissed the petition because the Petitioner failed to show that his
sentences were illegal. The trial court found that the Petitioner’s sentences had not expired,
that they were lawful, and that the trial court had jurisdiction to sentence the Petitioner. This
appeal followed.

        On appeal, the Petitioner contends that the trial court lacked jurisdiction to sentence
him as a Range III, career offender because the State failed to file a timely notice of
enhanced punishment. The Petitioner does not challenge the trial court’s imposition of
consecutive sentencing. The State contends that the Petitioner has failed to establish that he
is entitled to relief. We agree with the State.

        The determination of whether habeas corpus relief should be granted is a question of
law that is reviewed de novo with no presumption of correctness. State v. Livingston, 197
S.W.3d 710, 712 (Tenn. 2006); Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2001). In
Tennessee, habeas corpus relief is available only when it appears on the face of the judgment
or the record that the trial court was without jurisdiction to convict or sentence the defendant
or that the sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). The
purpose of the habeas corpus petition is to contest a void, not merely a voidable, judgment.
Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999); State ex rel. Newsom v. Henderson, 424
S.W.2d 186, 189 (Tenn. 1969).

        A void, as opposed to a voidable, judgment is “one that is facially invalid because the
court did not have the statutory authority to render such judgment.” Summers v. State, 212
S.W.3d 251, 256 (Tenn. 2007). A voidable judgment “is one that is facially valid and
requires proof beyond the face of the record or judgment to establish its invalidity.” Id. at
255-56. The burden is on the petitioner to establish that the judgment is void or that the
sentence has expired. State ex rel. Kuntz v. Bomar, 381 S.W.2d 290, 291-92 (1964). The
trial court, however, may dismiss a petition for writ of habeas corpus without a hearing and
without appointing a lawyer when the petition does not state a cognizable claim for relief.
Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004); State ex rel. Edmondson v. Henderson,
421 S.W.2d 635, 636-37 (Tenn. 1967); see T.C.A. § 29-21-109 (2010).




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        Tennessee Code Annotated section 40-35-202(a) reads in relevant part, “If the district
attorney general believes that a defendant should be sentenced as a multiple, persistent or
career offender, the district attorney general shall file a statement thereof with the court and
defense counsel not less than ten (10) days before trial.” T.C.A. § 40-35-202(a) (2010). The
sentencing commission comments for this section state that subsection (a) “requires that the
district attorney general file a notice with the court and defense counsel setting forth the
nature of any prior convictions which will later be utilized for sentencing enhancement
purposes.” See also Tenn. R. Crim. P. 12.3(a), Advisory Comm’n Cmts. (stating that if
notice is filed in less than ten days, the defendant may request a reasonable continuance but
that the notice shall be valid if the defendant does not request a continuance).

       A defendant is entitled to a continuance at a sentencing hearing when the State files
an untimely notice of enhanced punishment. See State v. Hines, 919 S.W.2d 573, 579 (Tenn.
1995); see also State v. Thompson, 36 S.W.3d 102, 115 (Tenn. Crim. App. 2000). The
“remedy for untimely notice is the option of a continuance for the defense, not preclusion of
the State from seeking enhanced punishment.” Thompson, 36 S.W.3d at 115. “In the
absence of a motion for continuance . . . any objection to the delayed notice by the State
ordinarily should be deemed to have been waived.” State v. Stephenson, 752 S.W.2d 80, 81
(Tenn. 1988) (holding waiver where the defendant did not raise the issue at the trial, at the
sentencing hearing, or on the motion for a new trial).

        Our supreme court has held that if a trial court sentences a Petitioner in the incorrect
range, “this non-jurisdictional error renders the judgment voidable, not void, and does not
entitle [the petitioner] to habeas corpus relief.” Edwards v. State, 269 S.W.3d 915, 917
(Tenn. 2008).


              A brief consideration of the methodology used to determine a
              defendant’s offender classification (which also determines his
              sentencing range), the length of his sentence, the manner of
              service of his sentence, and whether multiple sentences should
              run concurrently or consecutively, demonstrates why these
              issues depend upon findings of fact and are therefore
              appropriately raised only on direct appeal.


Cantrell v. Easterling, 346 S.W.3d 445, 450 (Tenn. 2011); see also Davis v. State, 313
S.W.3d 751, 760 (Tenn. 2010); Cecil Collins v. State, No. 03C01-9805-CR-00192, Knox
County (Tenn. Crim. App. July 28, 1999) (stating that a challenge to a Range II, multiple
offender classification is not a cognizable habeas corpus claim), perm. app. denied (Tenn.
Nov. 22, 1999).

                                              -3-
        The Petitioner’s contention that the trial court improperly sentenced him as a Range
III, career offender is not a cognizable claim for habeas corpus relief. The Petitioner is not
entitled to relief.


        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.



                                                   ________________________________
                                                   JOSEPH M. TIPTON, PRESIDING JUDGE




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