         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

               EUGENE J. KOVALSKY v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Morgan County
                             No. 9077 E. Eugene Eblen, Judge


                      No. E2005-00491-CCA-R3-HC Filed August 15, 2005


The petitioner, Eugene J. Kovalsky, appeals from the trial court's order dismissing his petition for
writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's
denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petitioner has
failed to establish that he is entitled to habeas corpus relief. Accordingly, the state's motion is
granted and the judgment of the trial court is affirmed.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
               Pursuant to Rule 20, Rules of the Court of Criminal Appeals

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE, J., joined.

Rex A. Dale, Loudon, Tennessee, for the Appellant, Eugene J. Kovalsky.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Kathy D. Aslinger, Assistant
Attorneys General, for the Appellee, State of Tennessee.

                                    MEMORANDUM OPINION

        In June 2000, the petitioner was indicted by a Hawkins County Grand Jury for first degree
premeditated murder. On February 13, 2001, the petitioner pleaded guilty to voluntary manslaughter.
Pursuant to his plea agreement, the petitioner was sentenced to 15 years as a Range III, persistent
offender. The petitioner sought post-conviction relief in October 2001, alleging ineffective
assistance of counsel and an unknowing, involuntary guilty plea. Following an evidentiary hearing,
the trial court denied relief. This court affirmed the judgment on appeal. See Eugene Joseph
Kovalsky v. State, No. E2002-00441-CCA-R3-PC (Tenn. Crim. App. Mar. 31, 2003).

        On June 6, 2004, the petitioner filed a petition for writ of habeas corpus. He asserted that,
irrespective of his plea agreement, the trial court was without authority to sentence him as a
persistent offender in view of his lack of a prior criminal history and the state’s failure to file notice
of intent to seek an enhanced punishment. Following the appointment of counsel and a hearing on
the matter, the trial court dismissed the petition finding that it failed to establish a cognizable claim
for habeas corpus relief.

         In Tennessee, “[a]ny person imprisoned or restrained of his liberty, under any pretense
whatsoever, except [those held under federal authority], may prosecute a writ of habeas corpus to
inquire into the cause of such imprisonment and restraint.” Church v. State, 987 S.W.2d 855, 857
(Tenn. Crim. App. 1998); T.C.A. § 29-21-101. The purpose of a habeas corpus petition is to contest
void and not merely voidable judgments. Archer v. State, 851 S.W.2d 157, 163 (Tenn. 1993) (citing
State ex rel. Newsom v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189 (1968)). 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, 214 Tenn. 500, 504, 381 S.W.2d 290, 291-92 (1964). If the petitioner carries this
burden, he is entitled to immediate release. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim.
App. 1994). A petition seeking issuance of a writ of habeas corpus may be summarily dismissed by
a trial court if it fails to indicate that the petitioner's conviction is void. T.C.A. § 29-21-109.

        First, the petitioner submits that the trial court was without jurisdiction to accept his plea
agreement because he possesses no prior felony convictions to justify his sentence as a persistent
offender. As the petitioner acknowledges, however, the Tennessee Supreme Court has rejected
similar sentencing challenges, holding that offender classifications and release eligibility "are
non-jurisdictional and legitimate bargaining tools in plea negotiations under the Criminal Sentencing
Reform Act of 1989." Bland v. Dukes, 97 S.W.3d 133, 134 (Tenn. Crim. App. 2002) (citing
McConnell v. State, 12 S.W.3d 795, 798 (Tenn. 2000); Hicks v. State, 945 S.W.2d 706, 709 (Tenn.
1997)); State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987). The petitioner's remaining claim of
a void judgment based on the states's failure to provide notice of its intent to seek an enhanced
sentence is not a cognizable claim for habeas corpus relief. In summary, the trial court properly
dismissed the petition for writ of habeas corpus.

       Upon due consideration of the pleadings, the record, and the applicable law, the court
concludes that the petitioner has not established that he is entitled to habeas corpus relief.
Accordingly, the state’s motion is granted and the judgment of the trial court is affirmed in
accordance with Rule 20, Rules of the Court of Criminal Appeals.



                                                        ___________________________________
                                                         JOSEPH M. TIPTON, JUDGE




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