        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned On Briefs March 11, 2014

                JARROD PHILLIPS v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Hickman County
                 No. 13-CV-39      James G. Martin, III, Judge



              No. M2013-02026-CCA-R3-HC - Filed April 23, 2014


Petitioner, Jarrod Phillips, was charged with first degree murder in Davidson County. He
pled guilty to second degree murder and was sentenced to thirty-two years as a Range II,
violent offender. Petitioner subsequently filed a petition for writ of habeas corpus in
Hickman County. The habeas corpus court summarily dismissed the petition. After a
thorough review of the record, we affirm the habeas corpus court’s dismissal of the petition.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS,
and N ORMA M CG EE O GLE, JJ., joined.

Jarrod Phillips, Pro Se, Only, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General, for the appellee, State of Tennessee.




                                        OPINION

                                   Factual Background

      Petitioner was charged with first degree murder in Davidson County. On January 25,
2012, he pled guilty to second degree murder and was sentenced to thirty-two years as a
Range II, violent offender. The judgment specifically stated, “Defendant waives range of
punishment for Murder 2nd & will receive 32 yrs. as Range 2.”
       On July 15, 2013, Petitioner filed a petition for writ of habeas corpus. In his petition,
Petitioner argued that he was sentenced out of his range and, therefore, he was being
“illegally restrained.” On August 14, 2013, the habeas corpus court filed an order dismissing
the petition. That order stated the following in part:


       [T]his Court is of the opinion that the petitioner’s argument that he was
       improperly sentenced as a Range II offender is without merit. The judgment
       form reflects that the petitioner pled guilty to second degree murder in
       exchange for an out-of-range sentence of 32 years as a Range II offender.

       Petitioner appeals from the summary dismissal of his petition.

                                         ANALYSIS

        Pursuant to Tennessee Code Annotated section 29-21-101(a), habeas corpus relief is
only available if the petitioner is “imprisoned or restrained of liberty.” The term
“imprisoned” means “actual physical confinement or detention.” Hickman v. State, 153
S.W.3d 16, 22 (Tenn. 2004). A petitioner does not have to be physically confined to be
“restrained of liberty.” A petitioner can be restrained of liberty if “the challenged judgment
itself imposes a restraint upon the petitioner’s freedom of action or movement,” even if “the
petitioner is not physically confined or detained.” Id. (citations omitted); see Benson v. State,
153 S.W.3d 27, 31 (Tenn. 2004). “The phrase ‘restrained of liberty’ has generally been
interpreted to include any limitation placed upon a person’s freedom of action, including
such restraints as conditions of parole or probation, or an order requiring a person to remain
in one city.” Benson, 153 S.W.3d at 31 (citing Hickman, 153 S.W.3d 16, 22-23 (Tenn.
2004)). The requirement that a petitioner be “imprisoned or restrained of liberty” by the
challenged conviction is basically a requirement that a petitioner have standing to bring a
habeas corpus proceeding, and this standing requirement operates independently of a
petitioner’s substantive claim of voidness. See Benson, 153 S.W.3d at 31 (“A statutory
prerequisite for eligibility to seek habeas corpus relief is that the petitioner must be
‘imprisoned or restrained of liberty’ by the challenged convictions.”); see also T.C.A. § 29-
21-107(b).

        Moreover, 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).


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        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
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 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, 945 S.W.2d at 707); 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


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


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

       Petitioner argues that he was illegally sentenced as a Range II offender when in fact
he was eligible to be sentenced as a Range I offender. The judgment reflects Petitioner was
sentenced as a violent offender to thirty-two years confinement for second degree murder,
a Class A felony. Under “Offender Status” on the judgment form, the “Multiple Offender”
box was checked. The sentence range for a Class A felony multiple offender is twenty-five
to forty 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.

       Petitioner also presents other arguments on appeal. These arguments were not
presented to the habeas corpus court below. When a petitioner raises an issue for the first
time on appeal, that issue is waived. See Black v. Blount, 938 S.W.2d 394, 403 (Tenn. 1996).
In addition, a petitioner may not change theories between the lower court and the appellate
court. State v. Alder, 71 S.W.3d 299, 303 (Tenn. Crim. App. 2001). Because Petitioner did
not allege these issues in his habeas corpus petition or raise them during the hearing, the
habeas corpus court did not address these issues in its order. Therefore, these issues are
waived.




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                             CONCLUSION

For the foregoing reasons, we affirm the summary dismissal of the petition.




                                  ___________________________________
                                  JERRY L. SMITH, JUDGE




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