                                                                                          07/22/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 12, 2020

             CHARLES L. JONES, III v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                         No. 5541   Steve R. Dozier, Judge
                     ___________________________________

                           No. M2019-01935-CCA-R3-HC
                       ___________________________________


Charles L. Jones, III, Petitioner, appeals from the denial of habeas corpus relief from his
sentence of life imprisonment without the possibility of parole after he pled guilty to
second-degree murder. After a review, we affirm the denial of habeas corpus relief.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.

Charles L. Jones, III, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and J. Wesley
King, Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION


       Over 24 years ago, Petitioner pled guilty in Wilson County to second-degree
murder and was sentenced to life without parole. In September of 2019, Petitioner sought
habeas corpus relief alleging that his judgment was void on its face because his sentence
“was quite clearly outside the sentencing range.” On September 24, 2019, the habeas
corpus court summarily denied relief, determining that Petitioner was “lawfully
sentenced as a repeat violent offender to life without the possibility of parole” and
therefore “failed to establish that the trial court was without jurisdiction or authority to
sentence him or that his sentence has expired in such a way that would render [his]
sentence void.” Petitioner appealed.
                                           Analysis

       On appeal, Petitioner challenges the habeas court’s denial of relief. The State
argues that the appeal should be dismissed because the notice of appeal was untimely
filed and Petitioner failed to demonstrate that the interests of justice demand waiver.

        “Ordinarily, a habeas corpus court’s judgment becomes final thirty days after the
entry of the judgment unless a notice of appeal is filed.” State v. Carl T. Jones, M2011-
00878-CCA-R3-CD, 2011 WL 5573579, at *1 (Tenn. Crim. App. Nov. 15, 2011) (citing
Tenn. R. App. P. 4(a)), perm. app. denied (Tenn. Apr. 11, 2012). Prior to July 1, 2017,
the notice of appeal was filed with the trial court clerk. See Tenn. R. App. P. 4(a).
Beginning on July 1, 2017, however, the notice of appeal was required to be filed with
the appellate court clerk. The rule contained a “[t]ransitional [p]rovision” providing a
remedy if a party “incorrectly attempt[ed] to file a notice of appeal with the trial court
clerk” wherein the trial court clerk notified the party of the error, if the filing was timely,
and gave the party an additional twenty days within which to file the notice of appeal
with the appellate court clerk. Id. The transitional provision expired on June 29, 2018.
Id. Under Tennessee Rule of Appellate Procedure 4(a), as amended, the notice of appeal
must be filed in the appellate court “within 30 days after the date of entry of the judgment
appealed from.” In the case of a pro se appellant who is incarcerated, “filing shall be
timely if the papers were delivered to the appropriate individual at the correctional
facility within the time fixed for filing.” Tenn. R. App. P. 20(g). However, Rule 4(a)
also states that “in all criminal cases the ‘notice of appeal’ document is not jurisdictional
and the filing of such document may be waived in the interest of justice.” A petitioner
bears the responsibility to properly perfect his appeal or to demonstrate that the “interests
of justice” merit waiver of an untimely filed notice of appeal. Carl T. Jones, 2011 WL
5573579, at *1 (citing Tenn. R. App. P. 4(a)).

       According to this Court’s record on appeal, it appears that Petitioner first
attempted to file a notice of appeal in the habeas corpus court. This notice of appeal does
not appear in the technical record, was not file stamped by the habeas corpus court, and is
not dated by Petitioner. It appears in our record as a filing entitled “miscellaneous court
forms.” The notice of appeal filed in the habeas corpus court has a “notice of new
appellate rule” attached to it, signed by a deputy clerk on “10-23-19.” At the time
Petitioner filed his notice of appeal in the trial court, which we presume to be on or
around October 23, 2019, the transitional provision contained within Rule 4 had expired.
In other words, Petitioner could not take advantage of the transitional provision,
extending the time for filing the notice of appeal in this Court. Moreover, Petitioner’s
notice of appeal filed in this Court on October 28, 2019, was clearly untimely. Petitioner
made no excuses for this deficiency. It was not until the State pointed out the error in its
                                             -2-
brief that Petitioner filed a reply brief alleging “the misdirected notices of appeal are at
fault of the clerk’s office not being included in the technical record” and that his second
notice of appeal was “timely filed with the 24th date and placed in the institutional mail.”
There is nothing in the record to support these assertions. However, we have chosen to
waive the timely filing of the notice of appeal in the interest of justice because, as
Petitioner points out in his memorandum of law in support of his habeas petition, “habeas
corpus is a confusing [L]atin term of law that very few individuals can understand.”

       Despite our waiver of the timeliness of the notice of appeal, we ultimately
conclude Petitioner is not entitled to habeas relief. In Tennessee, “[a]ny person
imprisoned or restrained of his liberty, under any pretense whatsoever . . . may prosecute
a writ of habeas corpus, to inquire into the cause of such imprisonment and restraint.”
T.C.A. § 29-21-101. While there is no statute of limitations for filing a petition for a writ
of habeas corpus, the grounds upon which relief may be granted are narrow. Hickman v.
State, 153 S.W.3d 16, 20 (Tenn. 2004). Habeas corpus relief is only available when it
appears on the face of the judgment or record of the proceedings that the convicting court
was without jurisdiction or that the defendant is still imprisoned despite the expiration of
his sentence. Id.; Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). In other words,
habeas corpus relief may be granted only when the judgment of conviction is void, rather
than merely voidable. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). A void
judgment is “one that is facially invalid because the court did not have the statutory
authority to render such judgment.” Id. at 256 (citing Dykes v. Compton, 978 S.W.2d
528, 529 (Tenn. 1998)). A voidable judgment is “one that is facially valid and requires
proof beyond the face of the record or judgment to establish its invalidity.” Id.

       The petitioner bears the burden of showing, by a preponderance of the evidence,
that the judgment is void. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). However, if
the habeas corpus court determines that there is nothing on the face of the judgment to
indicate that the conviction contained therein is illegal, it may summarily dismiss the
petition without the appointment of counsel and without an evidentiary hearing.
Summers, 212 S.W.3d at 261; T.C.A. § 29-21-109. Because the issue of whether habeas
corpus relief should be granted is a question of law, we conduct a de novo review without
any presumption of correctness given to the decision of the lower court. Summers, 212
S.W.3d at 255.

       In addition to challenging the timeliness of the petition, the State also complains
that the petition is procedurally defective because it is not “verified by affidavit” as
required by Tennessee Code Annotated section 29-21-107(a).                 Petitioner filed
“affidavits” related to his indigency claim and litigation history but they are neither
notarized nor verified under oath. A statement by Petitioner is not the same as a verified
affidavit. See Jason Clinard v. State, No. M2012-00839-CCA-R3-HC, 2012 WL
                                            -3-
4459717, at *4 (Tenn. Crim. App. Sept. 27, 2012), perm. app. denied (Tenn. Feb. 15,
2013). Despite this procedural lapse, the case proceeded without any party pointing out
the error. A review of the judgment indicates Petitioner’s judgment is not void. He was
sentenced to life without parole as a repeat violent offender under Tennessee Code
Annotated section 40-35-120. When Petitioner pled guilty, life without parole was a
statutorily authorized sentence for a repeat violent offender convicted of second-degree
murder. See T.C.A. § 40-35-120(c)(1)(B) (1995). Consequently, Petitioner’s judgment
is not void and the habeas corpus court properly denied relief.1

                                               Conclusion

        For the foregoing reasons, the judgment of the habeas corpus court is affirmed.


                                                      ____________________________________
                                                      TIMOTHY L. EASTER, JUDGE




        1
         For the first time on appeal, Petitioner challenges his classification as a repeat violent offender.
Because this argument was not presented to the habeas corpus court, it is waived. See State v.
McCormick, 494 S.W.3d 673, 679 n.6 (Tenn. 2016). In any event, this would be an appealable, as
opposed to fatal error. State v. Wooden, 478 S.W.3d 585, 595 (Tenn. 2015).
                                                   -4-
