                                                                                       03/26/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs March 3, 2020

             EUGENE SPIVEY v. SHAWN PHILLIPS, WARDEN

                   Appeal from the Circuit Court for Lake County
                    No. 19-CR-10623 R. Lee Moore, Jr., Judge
                     ___________________________________

                          No. W2019-00932-CCA-R3-HC
                      ___________________________________


The pro se petitioner, Eugene Spivey, appeals from the summary dismissal of his petition
for writ of habeas corpus. Following our review, we affirm the ruling of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.
and TIMOTHY L. EASTER, JJ., joined.

Eugene Spivey, Tiptonville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Danny Goodman, Jr., District Attorney General, for the appellee, State
of Tennessee.

                                       OPINION

                            Factual and Procedural History

       The petitioner was originally indicted for first degree premeditated murder, first
degree felony murder, attempted first degree murder, and especially aggravated robbery.
At some point during his trial, the petitioner pled guilty in the Crockett County Circuit
Court to second degree murder. In exchange for his plea, the petitioner received a
sentence of forty years and the remaining charges were dismissed. During the plea
hearing, the State offered the following factual basis for the guilty plea:

      Your Honor, the State would show that on January 22, [20]03, that the
      [petitioner] was at the home of Quantel Taylor; that Jeffrey Allen came by
      and said he needed to make some fast money and that he needed a gun in
       order to do that; that the three of them went to the home of Chad Bricco;
       that the [the petitioner] went to the door, got Mr. Bricco; there was some
       conversation about a gun. Mr. Bricco provided them with a gun and went
       with them to the home of the Neelys. On the way to the Neelys they
       discussd the fact that they were going to commit a robbery. When they got
       to the Neelys they parked down the road. The [petitioner] and Mr. Allen
       went to the door. Mr. Allen had a .40 caliber pistol. The [petitioner] was
       following along behind and that’s when Mr. Allen shot and killed Leonard
       Neely and shot and seriously injured Louis Neely.

While the petitioner did not agree with the State’s recitation of the facts, he did admit to
the trial court that he and Taylor were approached by Allen, who was looking for a gun;
that the three of them ended up at Bricco’s house; that Bricco provided Allen with a gun;
that all four of them went to the victims’ house; and that he was present, though outside,
when Allen shot the victims. After hearing the petitioner’s version of events, the trial
court asked if the petitioner still wanted to enter his guilty plea to which the petitioner
responded in the affirmative.

        On April 23, 2019, the petitioner filed a pro se petition for writ of habeas corpus.
In his petition, the petitioner asserted that the judgment against him is void because the
trial court “committed plain error by accepting the factual basis for [the p]etitioner’s
guilty plea to [s]econd degree murder despite the petitioner’s denying the D[istrict]
A[ttorney]’s stipulated facts” and by “failing to determine whether [the] petitioner
understood [the] nature of [the] charge” before accepting his plea. The habeas corpus
court summarily dismissed the petition by written order on May 13, 2019, noting that the
petitioner’s “sentence has not expired nor is the judgment void in this case. At best, the
judgment is voidable, but not void.” This timely appeal followed.

                                         Analysis

       On appeal, the petitioner asserts that he is entitled to habeas corpus relief because
the judgment against him is void. Specifically, the petitioner alleges that the trial court
lacked jurisdiction to render a judgment of conviction because 1) the petitioner did not
agree to the facts as recited by the State and 2) the petitioner did not understand the
nature of the charges against him. The State responds that the judgments against him are
not void and, even if his allegations were true, the judgments would be merely voidable.
We agree with the State.

       It is well-established in Tennessee that the remedy provided by a writ of habeas
corpus is limited in scope and may only be invoked where the judgment is void or the
petitioner’s term of imprisonment has expired. Faulkner v. State, 226 S.W.3d 358, 361
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(Tenn. 2007); State v. Ritchie, 20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport, 980
S.W.2d 407, 409 (Tenn. Crim. App. 1998). A void, as opposed to a voidable, judgment
is “one that is facially invalid because the court did not have the statutory authority to
render such judgment.” Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citing
Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)). A challenge to the sufficiency of
an indictment may be brought in a habeas corpus proceeding if “the indictment is so
defective as to deprive the court of jurisdiction.” Dykes, 978 S.W.2d at 529.

       A petitioner bears the burden of establishing a void judgment or illegal
confinement by a preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000). Furthermore, when a “habeas corpus petition fails to establish that a
judgment is void, a trial court may dismiss the petition without a hearing.” Summers, 212
S.W.3d at 260 (citing Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005)). Whether the
petitioner is entitled to habeas corpus relief is a question of law. Id. at 255; Hart v. State,
21 S.W.3d 901, 903 (Tenn. 2000). As such, our review is de novo with no presumption
of correctness given to the habeas court’s findings and conclusions. Id.

       Upon our review of the record and the briefs, we discern no error in the habeas
corpus court’s summary dismissal of the petition on the basis that it failed to establish a
cognizable claim for habeas corpus relief. The petitioner argues that the judgment
against him is void because the trial court lacked a factual basis for the plea, violating
Tennessee Rule of Criminal Procedure 11(b)(3), and did not explain the elements of the
offense to him, violating Tennessee Rule of Criminal Procedure 11(b)(1)(a), therefore
rendering his plea involuntary. While the petitioner is correct that Tennessee Rule of
Criminal Procedure 11(b)(3) requires the trial court to find a factual basis supporting a
guilty plea before accepting it, and Rule 11(b)(1)(a) requires the trial court to explain the
nature of the charges for which the plea is offered, a “claim that the trial court failed to
comply with Rule 11 of the Tennessee Rules of Criminal Procedure is an allegation that
would render a conviction voidable, not void.” Cedric Jeffries v. Steven Dotson, Warden,
No. W2009-00816-CCA-R3-HC, 2009 WL 4789975, at *2 (Tenn. Crim. App. Dec. 14,
2009). Thus, even if this Court takes the petitioner’s allegations as true, his conviction
would be merely voidable, not void.

        Further, our supreme court has previously stated that the “[v]oluntariness of a plea
. . . has no relevance in a habeas corpus proceeding.” Summers, 212 S.W.2d at 259.
Instead, the voluntariness of a plea is properly addressed in a petition for post-conviction
relief and is not a “proper ground[ ] for habeas corpus relief in Tennessee.” Archer v.
State, 851 S.W.2d 157, 165 (Tenn. 1993). Despite his arguments to the contrary, the
petitioner has failed to establish that his judgment is void or his sentence expired.
Accordingly, we affirm the summary dismissal of the petition for writ of habeas corpus.

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                                       Conclusion

       Because the petitioner failed to state a cognizable claim for habeas corpus relief,
we affirm the summary dismissal of the petition for writ of habeas corpus.




                                            ____________________________________
                                            J. ROSS DYER, JUDGE




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