        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs June 29, 2011

       RENWICK A. EARLS, JR. v. HOWARD CARLTON, WARDEN

              Direct Appeal from the Criminal Court for Johnson County
                         No. 5665     Lynn W. Brown, Judge


               No. E2010-01754-CCA-R3-HC - Filed September 26, 2011


The petitioner, Renwick A. Earls, Jr., pled guilty to one count of second degree murder and
received a sentence of forty years as a Range II offender. He now appeals the dismissal of
his petition for habeas corpus relief, arguing that the trial court did not have the authority to
sentence him to forty years, rendering the judgment void. Because the petitioner has failed
to establish that his judgment is void or that he is otherwise entitled to relief, we affirm the
denial of habeas corpus relief.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which JERRY L. S MITH
and D. K ELLY T HOMAS, J R., JJ., joined.

Renwick A. Earls, Jr., Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; and Anthony Wade Clark, District Attorney General, for the appellee,
State of Tennessee.

                                          OPINION

       On June 29, 2007, the petitioner pled guilty to one count of second degree murder.
He was sentenced to forty years in prison, to be served as a Range II offender. Thereafter,
the petitioner filed an unsuccessful petition for post-conviction relief. On May 4, 2010, the
petitioner filed the instant petition for habeas corpus relief, which the trial court denied in a
written order filed July 7, 2010. The petitioner filed an untimely notice of appeal on August
18, 2010.
                                   Standard of Review

        Whether or not habeas corpus relief should be granted is a question of law. Edwards
v. State, 269 S.W.3d 915, 919 (Tenn. 2008); Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000).
Our review on appeal is de novo, without affording any presumption of correctness to the
findings or conclusions of the lower court. Edwards, 269 S.W.3d at 919 (citing Summers v.
State, 212 S.W.3d 251, 255 (Tenn. 2007)).

                                         Analysis

        Tennessee Code Annotated section 29-21-101 provides that “[a]ny person imprisoned
or restrained of liberty, under any pretense whatsoever . . . may prosecute a writ of habeas
corpus, to inquire into the cause of such imprisonment and restraint.” T.C.A. § 29-21-101
(2011). A writ of habeas corpus may only be used to contest an expired sentence or void
judgment, not merely to challenge judgments that may be erroneous or voidable. Edwards,
269 S.W.3d at 920. “The Defendant has the burden to show 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)). A trial court may summarily dismiss a habeas corpus
petition if “from the showing of the petitioner, the plaintiff would not be entitled to any
relief.” T.C.A. § 29-21-109 (2011); see also Hickman v. State, 153 S.W.3d 16, 20 (Tenn.
2004); State ex rel. Byrd v. Bomar, 381 S.W.2d 280 (1964).

       On appeal, the petitioner argues that the trial court improperly denied his petition
because the court lacked the authority to sentence him to forty years, thereby making the
judgment void. Specifically, he alleges that his sentence exceeds the statutory minimum
sentence in violation of Tennessee Code sections 40-35-103(4) and 40-35-210(c)(1).
However, this claim is based on an erroneous interpretation of the relevant statutory
provisions.

       As a preliminary matter, we note that the State argues that the petitioner’s appeal
should be dismissed because he failed to file a timely notice of appeal. Pursuant to
Tennessee Rules of Appellate Procedure 4(a), an appeal must be filed within thirty days after
the date that the judgment being appealed was entered. Tenn. R. App. P. 4(a) (2011).
Although failing to file a timely notice of appeal may be grounds for dismissal, “in all
criminal cases, the ‘notice of appeal’ document is not jurisdictional, and the filing of such
document may be waived in the interest of justice.” Id. This court has previously concluded
that waiver was not justified where a petitioner waited several months to file a notice of
appeal. See Porterfield v. Bell, No. M2006-02082-CCA-R3-HC, 2007 Tenn. Crim. App.
LEXIS 732, at *4 (Tenn. Crim. App. at Nashville, Sept. 17, 2007). In the instant case,
however, the petitioner filed his notice of appeal less than two weeks after the thirty-day

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deadline. As such, we conclude that the interests of justice weigh in favor of waiving his
untimely notice of appeal, and we will consider the merits of the petitioner’s appeal.

        Turning to the merits of the appeal, the petitioner contends that his sentence exceeds
the statutory minimum in violation of Tennessee Code sections 40-35-103(4) and 40-35-
210(c)(1), which, at the time of his sentencing, directed judges to impose the minimum or
least severe punishment necessary to fit the facts of the crime and achieve the purposes of
sentencing. The petitioner’s interpretation of these statutes as they relate to the validity of
his sentence, however, is flawed. The petitioner pled guilty to second degree murder, a Class
A felony, as a Range II offender. The sentencing range for a Range II offender convicted of
a Class A felony was twenty-five to forty years. T.C.A. § 40-35-112(b)(1) (2007). The
petitioner’s forty-year sentence falls within this range. Consequently, his particular sentence
is within the range authorized by statue and is not void.

        The petitioner’s confusion stems from his reading of statutory language of Tennessee
Code section 40-35-210(c)(1), which states in pertinent part that “[t]he minimum sentence
within the range of punishment is the sentence that should be imposed. . . .” T.C.A. §40-35-
210 (c) (1) (2007). However, the preceding paragraph explains that section 40-35-210(c)(1)
is merely an advisory guideline. “In imposing a specific sentence within the range of
punishment, the court shall consider, but is not bound by, the following advisory sentencing
guidelines . . .” of which section 40-35-210(c)(1) is a part. T.C.A. 40-35-210(c) (2007)
(emphasis added). As the language of the statute demonstrates, courts are not obligated to
impose the minimum sentence within the range of punishment. “[S]o long as the sentence
is available” under the range established by the applicable sentencing act, “the trial court may
impose [the] sentence.” McConnell v. State, 12 S.W.3d 795, 800 (Tenn. 2000). Because the
petitioner’s sentence falls within the spectrum permitted for a Range II offender found guilty
of committing a Class A felony, the petitioner has failed to demonstrate that his judgment is
void, and the trial court did not err in dismissing his petition for habeas corpus relief.

                                       CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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