        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE              FILED
                          MARCH 1999 SESSION
                                                         July 30, 1999

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
RANDY DALE HILL,              *     C.C.A. # 01C01-9806-CR-00273

           Appellant,         *     DAVIDSON COUNTY

V.                            *     Honorable Cheryl Blackburn, Judge

STATE OF TENNESSEE,           *     (Habeas Corpus Dismissed)

           Appellee.          *



FOR THE APPELLANT:            FOR THE APPELLEE:

RANDY DALE HILL               JOHN KNOX WALKUP
TDOC# 245286                  Attorney General & Reporter
B.M.C.X.-M.C.
P. O. Box 20                  KIM R. HELPER
Wartburg, TN 37887-2000       Assistant Attorney General
                              425 Fifth Avenue North
                              Nashville, Tennessee 37243-0493

                              VICTOR S. (TORRY) JOHNSON III
                              District Attorney General

                              ROGER MOORE
                              Assistant District Attorney General
                              Washington Square, Suite 500
                              222 Second Avenue North
                              Nashville, TN 37201-1649




OPINION FILED: _______________


AFFIRMED



JOHN EVERETT WILLIAMS,
Judge
                                   OPINION

      The petitioner, Randy Dale Hill, appeals the dismissal of his petition for

habeas corpus. In 1995, the petitioner pleaded nolo contendere to one count of

aggravated child abuse, a Class B felony. The Criminal Court of Dickson County

sentenced him as a mitigated offender to eight years in either the Tennessee

Department of Correction (TDOC) or the Dickson County workhouse, and the

petitioner began service in the workhouse. The TDOC subsequently advised

him that he could not serve in the workhouse. In 1998, the petitioner filed a writ

of habeas corpus with the Criminal Court of Davidson County, alleging that

improper sentencing merited habeas corpus relief. The post-conviction court

dismissed the writ without a hearing. The petitioner appeals, asserting that (1)

the post-conviction court erroneously dismissed the writ without a hearing,

because that writ alleged grounds for relief, and (2) the sentence imposed by the

trial court was void. The petitioner’s second issue comprises a claim regarding

the plea agreement: He asserts that since he entered his plea anticipating

service in the workhouse, an option precluded by statute, that plea was not

knowing and voluntary. We AFFIRM the dismissal of the writ.



                                 BACKGROUND

       The petitioner was indicted for one count of aggravated child abuse and

for one count of aggravated sexual battery. The petitioner alleges that he

pleaded nolo contendere to the aggravated child abuse charge only because the

state agreed to his serving in the workhouse. The technical record reflects such

an agreement: The judgment sentenced him to either the TDOC or the

workhouse; and the petitioner’s waiver of trial and request for acceptance of plea

states that he would serve in the workhouse and that the state would nolle

prosequi the remaining charge.

                                        -2-
       Approximately six months later, the TDOC advised the petitioner that he

could not serve in the workhouse. The petitioner objected to transfer to the

TDOC. He allegedly filed a petition for post-conviction relief but voluntarily

dismissed that petition while recovering from an injury incurred during

incarceration. The Criminal Court of Davidson County dismissed the petitioner’s

writ for habeas corpus without an evidentiary hearing, finding that writ failed to

state a ground for relief.



                                    ANALYSIS

       The petitioner asserts that (1) the post-conviction court erred by

dismissing his writ for habeas corpus without an evidentiary hearing and (2) his

writ properly challenged the sentence because the trial court, lacking subject

matter jurisdiction, entered a void sentence. Tennessee statutes codify the

common-law remedy of habeas corpus relief, see Tenn. Code Ann. § 29-21-101

to -130, as “an extraordinary remedy to secure the release, by judicial decree, of

persons who are restrained of their liberty . . . ,” Bateman v. State, 194 S.W.2d

336, 337 (Tenn. 1946). “[T]he office of the writ of habeas corpus is to test the

legality of the imprisonment or restraint of one who is being illegally detained,”

and “the only relief that can be given a prisoner in a state habeas corpus

proceeding is release.” State v. Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App.

1986). “A writ of habeas corpus is to correct the denial of fundamental

constitutional rights.” State v. Henderson, 424 S.W.2d 186, 188 (Tenn. 1968).



       The trial court sentenced the petitioner to eight years in the workhouse.

Absent certain provisions inapplicable to the instant case,

       all convicted felons sentenced after November 1, 1989, to
       continuous confinement for a period of one (1) year or more shall
       be sentenced to the department of correction.




                                         -3-
Tenn. Code Ann. § 40-35-314(a). The imposed eight-year sentence could not

be served in the workhouse, but the petitioner’s appeal fails to allege facts

sufficiently establishing that the sentence was void. See Weatherly v. State, 704

S.W.2d 730, 732 (Tenn. Crim. App. 1985).



       Every application for writ of habeas corpus does not merit a full

evidentiary hearing. See Weatherly, 704 S.W.2d at 732. Only those petitions

alleging facts that, if true, render a petitioner’s conviction constitutionally void

merit a hearing. See id. An application for writ of habeas corpus may be

dismissed by the trial court if the application does not indicate that the conviction

is void. See Tenn. Code Ann. § 29-21-109.



       Therefore, the application must sufficiently allege that a judgment is void,

not merely voidable. Habeas corpus relief is available in Tennessee only when

the face of a judgment or record of the proceedings indicates that the “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). “It is generally true . . . that a

judgment imposed by a trial court in direct contravention of express statutory

provisions regarding sentencing is illegal . . . .” State v. Mahler, 735 S.W.2d

226, 228 (Tenn. 1987). In the instant case, the trial court’s sentencing the

petitioner to the workhouse, although improper, did not directly contravene

express statutory provisions. The Code specifically anticipates and legitimizes

such sentences:

       After November 1, 1989, if a court sentences or has sentenced a
       defendant to a local jail or workhouse when such court was not
       authorized to do so by this chapter, it shall be deemed that such
       sentence was a sentence to the department, and the commissioner
       of correction shall have the authority to take such a defendant into
       the custody of the department.




                                           -4-
Tenn. Code Ann. § 40-35-314(a).



       The petitioner further asserts that his plea was not knowing and voluntary

because he believed that he could serve his sentence in the workhouse and was

promised that option for the duration of incarceration. A criminal defendant’s

guilty plea must be knowing and voluntary. See Boykins v. Alabama, 395 U.S.

238 (1969). Otherwise, that plea violates due process and is void. Id. A

defendant’s guilty plea involves three significant federal constitutional rights:

       (1) The privilege against compulsory self-incrimination guaranteed
           by the Fifth Amendment.
       (2) The right to trial by jury.
       (3) The right to confront one’s accusers.


State v. Neal, 810 S.W .2d 131, 135 (Tenn. 1991). The record must clearly show

a defendant waived these rights. See id. Subsequent Tennessee case law

“expressly expanded the advice requirements” and mandated an “inquiry into the

voluntariness of the plea” when a trial court accepts a guilty plea. Id. at 135-36.

Therefore, Tennessee law requires the trial court’s “ensuring that the defendant

is aware of all consequences of a guilty plea and that the plea is . . . intelligently

and voluntarily entered.” Id. at 136.



       Pertinent case law indicates that habeas corpus relief is not the proper

procedure for remedying a guilty plea which was allegedly not knowing and

voluntary. In Archer v. State, No. 03C01-9108-CR-00245 (Tenn. Crim. App. filed

Feb. 21, 1992, at Knoxville), the defendant asserted that the trial court did not

advise him of his constitutional rights prior to his entering five guilty pleas.

Although “a court may lose jurisdiction in the course of the proceeding due to its

failure to afford the accused the due process of law,” only those constitutional

violations “so fundamental as to render the judgment void may be attacked by

the writ.” Id. This Court held that validity of guilty pleas could not be challenged



                                          -5-
in a habeas corpus proceeding because any error in a trial court’s accepting a

guilty plea renders the conviction voidable, not void. Id.



       On appeal, the Tennessee Supreme Court held that “examination of the

history of the writ of habeas corpus in Tennessee leads . . . to the conclusion

that the reach of the Great Writ is severely restricted in this state and would, in

almost all instances, preclude consideration of challenges to the voluntariness of

guilty pleas in such proceedings.” Archer, 851 S.W.2d at 158. Therefore, we do

not view habeas corpus as the appropriate means of addressing the petitioner’s

concern. The proper procedure for relief in this case is a petition for post-

conviction relief. See id. Although this Court may treat a petition for habeas

corpus as a petition for post-conviction relief, see Tenn. Code Ann. § 40-30-

205(c), the applicable one-year statute of limitations has expired, see Tenn.

Code Ann. § 40-30-202(a).



                                   CONCLUSION

       The judgment of the post-conviction court is AFFIRMED in that the

petitioner did not allege facts sufficiently establishing that his sentence is void.

Further, the applicable statute of limitations bars this petition from

consideration under the Post-Conviction Procedure Act.




                                                ____________________________
                                                JOHN EVERETT WILLIAMS, Judge




                                          -6-
CONCUR:




_______________________________
DAVID H. WELLES, Judge




_______________________________
JOE G. RILEY, Judge




                                  -7-
