        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE

                ROBERT T. HENRY v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Hamilton County
                       No. 276874    Rebecca J. Stern, Judge


                 No. E2010-01749-CCA-R3-HC - Filed March 4, 2011


The Petitioner, Robert T. Henry, appeals the Hamilton County Criminal Court’s dismissal
of his petition for habeas corpus relief from his 1978 conviction for robbery. He claims his
conviction is void because the law applicable at the time of his conviction has since been
repealed and current law renders his indeterminate sentence illegal. The State has moved the
court to affirm the trial court by memorandum opinion pursuant to Rule 20 of the Rules of
the Court of Criminal Appeals. 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 Criminal Court Affirmed
           Pursuant to Rule 20, Rules of the Court of Criminal Appeals

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE
and D. K ELLY T HOMAS, J R., JJ., joined.

Robert T. Henry, Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
and William H. Cox, III, District Attorney General, for the appellee, State of Tennessee.

                               MEMORANDUM OPINION

        The Petitioner was convicted by a Hamilton County Criminal Court jury of robbery
on April 8, 1978. He was sentenced to not less than ten nor more than fifteen years’
confinement. On June 10, 1980, the Petitioner escaped from custody and was not
apprehended and returned to Tennessee until 2009. On June 22, 2010, the Petitioner filed
a petition for writ of habeas corpus alleging that his conviction is void because the law
applicable at the time of his conviction has since been repealed and the Criminal Sentencing
Reform Act of 1989 renders his indeterminate sentence illegal. The trial court summarily
dismissed the petition after determining that the Petitioner failed to state a cognizable claim
for habeas corpus relief. The trial court stated, “The petition does not allege that the sentence
is illegal under applicable law; it merely alleges that the sentence is illegal under current law
and by reason of the repeal of applicable law.” This appeal followed.

        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 his sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993). 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). The trial court may summarily dismiss a petition for writ of habeas corpus
relief when the petitioner does not state a cognizable claim. Hickman v. State, 153 S.W.3d
16, 20 (Tenn. 2004).

        In its motion, the State asserts that the petition was properly dismissed because it was
improperly filed in Hamilton County instead of in Morgan County, the county of
incarceration. The State also asserts that because the Petitioner was sentenced under a valid
statute that was in effect at the time he committed the robbery, he has failed to state a
cognizable claim for habeas corpus relief. The Petitioner claims that his conviction is void
because the law applicable at the time of his conviction has since been repealed and the
Criminal Sentencing Reform Act of 1989 renders his indeterminate sentence illegal. He
argues that his sentence is illegal because robbery is currently a Class C felony punishable
by three to six years’ confinement, not ten to fifteen years’ confinement. See T.C.A. §§ 39-
13-401, 40-35-112 (2010).

        With regard to the State’s claim that the petition was properly dismissed because it
was not filed in the county of incarceration, Tennessee Code Annotated section 29-21-105
states that an application for habeas corpus relief should be filed with “the court or judge
most convenient in point of distance to the applicant, unless a sufficient reason be given in
the petition for not applying to such court or judge.” Although the Petitioner is incarcerated
in Morgan County and filed his petition in Hamilton County, the trial court did not dismiss
the petition on procedural grounds, and we will not rely on this deficiency in determining
whether the trial court erred by dismissing the petition. See Brian Roberson v. Howard
Carlton, Warden, No. E2006-01551-CCA-R3-HC, Johnson County, slip op. at 4 (Tenn. Crim.
App. July 12, 2007) (unless a trial court dismisses a petition for habeas corpus due to
noncompliance with procedural requirements, an appellate court should not rely on
procedural deficiencies to defeat an appeal), app. denied (Tenn. Nov. 19, 2007).

       With regard to the State’s claim that the Petitioner has failed to state a cognizable
claim for habeas corpus relief because he was sentenced under a valid statute that was in



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effect at the time he committed the robbery, Tennessee Code Annotated section 39-11-112
states:

              When a penal statute or penal legislative act of the state is
              repealed or amended by a subsequent legislative act, the offense,
              as defined by the statute or act being repealed or amended,
              committed while the statute or act was in full force and effect
              shall be prosecuted under the act or statute in effect at the time
              of the commission of the offense.

Furthermore, if a criminal offense was committed before July 1, 1982, “prior law shall apply
and remain in full force and effect in every respect, including, but not limited to, sentencing,
parole and probation.” T.C.A. § 40-35-117 (2010).

       The record reflects that the Petitioner was tried and sentenced under the law as it
existed at the time of the robbery on August 17, 1977. The Petitioner’s indeterminate
sentence was authorized by the applicable statutory sentencing provisions. See T.C.A. §
39-3901 (repealed 1989) (“Every person convicted of the crime of robbery shall be
imprisoned in the penitentiary not less than five (5) nor more than fifteen (15) years.”). The
Petitioner has not claimed or shown that his sentence is facially invalid under the law
applicable at the time of his crime. The Petitioner is not entitled to relief.

       The State’s motion is granted. The opinion provides no precedential value; the
proceeding occurred before the trial court without a jury; the action was not a determination
of guilt; the evidence does not preponderate against the trial court’s findings; and no error
of law is apparent on the record. See Tenn. Ct. Crim. App. R. 20(1)(a), (2). The judgment
of the trial court is affirmed in accordance with Rule 20, Rules of the Court of Criminal
Appeals.




                                              _____________________________________
                                              JOSEPH M. TIPTON , PRESIDING JUDGE




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