        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned On Briefs September 14, 2011

            JUSTIN TYLER BREWER v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Wayne County
                            No. 5723 Stella Hargrove, Judge



                No. M2010-02635-CCA-R3-HC - Filed November 15, 2011


Petitioner, Justin Tyler Brewer, appeals from the Wayne County Circuit Court’s denial of a
petition for habeas corpus relief in which he claimed that he received a sentence outside of
his range. Petitioner raises an additional claim on appeal, that the judgment for one of his
convictions is void because it provides for release eligibility. After a review of the record,
we determine that Petitioner has failed to show that his judgment for second degree murder
is void or that his sentence has expired. Further, Petitioner is not entitled to habeas corpus
relief for his aggravated kidnapping conviction according to Tennessee Code Annotated
section 29-21-101.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.
and N ORMA M CG EE O GLE, JJ., joined.

Justin Tyler Brewer, Pro Se, Clifton, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks and Sophia S. Lee,
Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee,
State of Tennessee.

                                         OPINION

                                    Factual Background

       Petitioner pled guilty to one count of second degree murder, two counts of aggravated
assault, and one count of aggravated kidnapping in Hardin County in November of 2008.
As a result, he received an effective sentence of forty years.
       On September 23, 2010, Petitioner filed an application for writ of habeas corpus in
Wayne County. In the petition, Petitioner alleged that the forty-year sentenced he received
for second degree murder was “beyond the maximum penalty for a Range I Standard
Offender sentence” and, therefore, the trial court lacked jurisdiction to impose the sentence.
The State filed a motion to dismiss.

       In an order entered on November 12, 2010, the trial court granted the motion to
dismiss the petition. The trial court determined that any issue “regarding offender range and
release eligibility” was non-jurisdictional and subject to plea bargaining. Further, the trial
court noted that Petitioner’s sentence of forty years was within the range of sentencing for
offenders convicted of Class A felonies and was not illegal. Petitioner filed a timely notice
of appeal. He now challenges the dismissal of the petition for habeas corpus relief.

                                           Analysis

        On appeal, Petitioner contends that the trial court improperly dismissed the petition
for habeas corpus relief when the trial court imposed an “illegal sentence” by violating
Tennessee Code Annotated section 40-35-112(a)(1) and imposing a sentence of forty years
for a second degree murder conviction where Petitioner was a Range I, standard offender.
For the first time on appeal Petitioner argues that the trial court also imposed an illegal eight-
year sentence to be served at thirty percent for aggravated kidnapping because the statute
requires 100% service of sentence. The State insists that Petitioner has waived any issue
with regard to his conviction for aggravated kidnapping for failure to present it to the habeas
corpus court. Further, the State contends that Petitioner’s sentence is not illegal and has not
expired, thereby rendering him ineligible for habeas corpus relief.

        The determination of whether to grant habeas corpus relief is a question of law. See
Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004). As such, we will review the habeas
corpus court’s findings de novo without a presumption of correctness. Id. Moreover, it is
the petitioner’s burden 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).

       Article I, section 15 of the Tennessee Constitution guarantees an accused the right to
seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A writ of
habeas corpus is available only when it appears on the face of the judgment or the record that
the convicting court was without jurisdiction to convict or sentence the defendant or that the
defendant is still imprisoned despite the expiration of his sentence. Archer v. State, 851
S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In other
words, habeas corpus relief may be sought only when the judgment is void, not merely
voidable. See Taylor, 995 S.W.2d at 83. “A void judgment ‘is one in which the judgment

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is facially invalid because the court lacked jurisdiction or authority to render the judgment
or because the defendant’s sentence has expired.’ We have recognized that a sentence
imposed in direct contravention of a statute, for example, is void and illegal.” Stephenson
v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (quoting Taylor, 955 S.W.2d at 83).

        However, if after a review of the habeas petitioner’s filings the habeas corpus court
determines that the petitioner would not be entitled to relief, then the petition may be
summarily dismissed. T.C.A. § 29–21–109; State ex rel. Byrd v. Bomar, 381 S.W.2d 280,
283 (Tenn. 1964). Further, a habeas corpus court may summarily dismiss a petition for writ
of habeas corpus without the appointment of a lawyer and without an evidentiary hearing if
there is nothing on the face of the judgment to indicate that the convictions addressed therein
are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

       The procedural requirements for habeas corpus relief are mandatory and must be
scrupulously followed. Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007); Hickman, 153
S.W.3d at 19-20; Archer, 851 S.W.2d at 165. For the benefit of individuals such as
Petitioner, our legislature has explicitly laid out the formal requirements for a petition for a
writ of habeas corpus at Tennessee Code Annotated section 29-21-107:

       (a) Application for the writ shall be made by petition, signed either by the party
       for whose benefit it is intended, or some person on the petitioner’s behalf, and
       verified by affidavit.

       (b) The petition shall state:

       (1) That the person in whose behalf the writ is sought, is illegally restrained of
       liberty, and the person by whom and place where restrained, mentioning the
       name of such person, if known, and, if unknown, describing the person with
       as much particularity as practicable;

       (2) The cause or pretense of such restraint according to the best information
       of the applicant, and if it be by virtue of any legal process, a copy thereof shall
       be annexed, or a satisfactory reason given for its absence;

       (3) That the legality of the restraint has not already been adjudged upon a prior
       proceeding of the same character, to the best of the applicant’s knowledge and
       belief; and




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       (4) That it is the first application for the writ, or, if a previous application has
       been made, a copy of the petition and proceedings thereon shall be produced,
       or satisfactory reasons be given for the failure so to do.

A habeas corpus court “properly may choose to summarily dismiss a petition for failing to
comply with the statutory procedural requirements.” Summers, 212 S.W.3d at 260; see also
Hickman, 153 S.W.3d at 21.

        We conclude that the trial court properly denied relief in view of Petitioner’s failure
to demonstrate that the trial court lacked jurisdiction to impose the forty-year sentence with
one hundred percent service or that his sentence has expired. Petitioner claims that the trial
court did not have jurisdiction to impose a forty-year sentence for second degree murder
because the maximum range of punishment for a standard offender is twenty-five years. The
judgment form indicates that Petitioner entered a “Hicks plea.” Our Supreme Court has held
that “a knowing and voluntary guilty plea waives any irregularity as to offender classification
or release eligibility.” Hicks v. State, 945 S.W.2d 706, 709 (Tenn. 1997). In the event a
defendant enters into a plea-bargain, he or she waives any subsequent complaint about
offender classification and length of sentence, “so long as [the sentence] does not exceed the
maximum punishment authorized for the plea offense.” Hoover v. State, 215 S.W.3d 776,
780 (Tenn. 2007) (citing Hicks v. State, 945 S.W.2d 706, 707 (Tenn.1997)); see also Cantrell
v. Easterling, 346 S.W.3d 445, 451-52 (Tenn. 2011); McConnell v. State, 12 S.W.3d 795,
798 (Tenn. 2000) (determining that if a sentence was within the statutory minimum and
maximum sentences for a particular sentencing range, then an appellate court could affirm
a sentence that was within the particular range, even if the defendant would otherwise qualify
for a lesser offender status). In Davis v. State, the supreme court commented:

               With regard to allegedly improper sentences arising from plea bargains,
       we have stated repeatedly that offender range classification and release
       eligibility are “non-jurisdictional.” See, e.g., Hoover v. State, 215 S.W.3d 776,
       780 (Tenn. 2007). Thus, “a knowing and voluntary guilty plea waives any
       irregularity as to offender classification or release eligibility.” Id.; Hicks, 945
       S.W.2d at 709; see also State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987).
       Accordingly, the parties may agree to a “hybrid” sentence that “mixes and
       matches” range assignment, term of years, and release eligibility without
       regard to what our sentencing scheme might call for absent a plea bargain so
       long as (1) the term of years is within the overall range of years specified for
       the offense, see Hoover, 215 S.W.3d at 779, and (2) the RED [Release
       Eligibility Date] is not less than the minimum allowable for the offense, see
       Lewis, 202 S.W.3d at 128. See also McConnell, 12 S.W.3d at 799 (“The 1989
       [Sentencing] Act establishes the outer limits within which the State and a

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       defendant are free to negotiate, and the courts are bound to respect those
       limits.”).

313 S.W.3d 751, 759-60.

        In the case herein, the judgment reflects Petitioner was sentenced as a violent offender
to forty years confinement for second degree murder, a Class A felony. There is no box
checked for “Offender Status” on the judgment form. Class A felony sentences range from
fifteen to sixty years. T.C.A. § 40-35-111(b)(1). Because the Petitioner was sentenced to
punishment falling within the spectrum for a Class A felony, his sentence was proper. See
Davis, 313 S.W.3d at 759-60; McConnell, 12 S.W.3d at 798; Hicks, 945 S.W.2d at 707.
Petitioner is not entitled to relief.

        Next, Petitioner claims that his negotiated sentence for aggravated kidnapping is
illegal because it was ordered to be served at thirty percent release eligibility rather than
100% release eligibility as required by Tennessee Code Annotated section 40-35-
501(i)(2)(D). We have reviewed the record in this case. Petitioner has attached the judgment
form for the aggravated kidnapping conviction to the petition for relief. The judgment form
reflects that Appellant was sentenced to eight years. In the “Offender Status” section of the
judgment form, the box for “Standard” is checked. There is nothing checked in the “Release
Eligibility” section. In other words, the judgment is silent as to release eligibility. The
record does not include the transcript of the guilty plea hearing. Therefore, we are unable
to determine from the record if the complaint regarding Petitioner’s sentence is in the nature
of a clerical error, appealable error, or fatal error. See Easterling, 346 S.W.3d 448-454.
Moreover, in 2009, the General Assembly acted to limit habeas corpus relief on
plea-bargained sentences further by adding the following language to the habeas corpus
statute:


       (b) Persons restrained of their liberty pursuant to a guilty plea and negotiated
       sentence are not entitled to the benefits of this writ on any claim that:
       (1) The petitioner received concurrent sentencing where there was a statutory
       requirement for consecutive sentencing;
       (2) The petitioner’s sentence included a release eligibility percentage where
       the petitioner was not entitled to any early release; or
       (3) The petitioner’s sentence included a lower release eligibility percentage
       than the petitioner was entitled to under statutory requirements. (emphasis
       supplied)




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T.C.A. § 29-21-101 (Supp. 2009) (emphasis added). This language applies to all habeas
corpus petitions filed on or after June 11, 2009. 2009 Tenn. Pub. Acts 420. Petitioner pled
guilty to the underlying conviction in this case, and his petition was filed in 2010, after the
effective date of the amendment. It appears that this statute disentitles individuals in the
position of Petitioner to habeas corpus relief.

                                         Conclusion

       For the foregoing reasons, the judgments of the trial court are affirmed.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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