        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE

            PHILLIP SHANE DUNCAN v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                          No. 90359   Bob R. McGee, Judge




                 No. E2010-01723-CCA-R3-HC - Filed March 24, 2011


The Petitioner, Phillip Shane Duncan, filed a pro se petition for a writ of habeas corpus,
arguing that the trial court erred in imposing a sentence of twenty-five years for his second
degree murder conviction. The habeas corpus court dismissed the petition, and the Petitioner
appealed. The State filed a motion requesting that this court affirm the habeas corpus court’s
denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. After review,
we conclude that the petition was properly dismissed. Accordingly, the State’s motion is
granted and the judgment of the habeas corpus court is affirmed.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., AND D. K ELLY T HOMAS, J R., JJ., joined.

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Phillip Duncan.

Robert E. Cooper, Jr., Attorney General and Reporter; and Cameron L. Hyder, Assistant
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

       On March 1, 1991, the Petitioner was sentenced to twenty-five years in the Tennessee
Department of Correction for his conviction of second degree murder. On appeal, this court
affirmed his conviction and sentence. See State v. Phillip Shane Duncan, No. 03C01-9110-
CR-334, 1992 WL 158281, at *1 (Tenn. Crim. App. at Knoxville, July 8, 1992).

        Subsequently, the Petitioner filed a petition for habeas corpus relief, alleging that the
trial court erred when sentencing him for second degree murder, a Class A felony, by starting
at the midpoint of the range instead of at the minimum. The habeas corpus court appointed
counsel to assist the Petitioner, and an amended petition was filed. However, the habeas
corpus court later dismissed both petitions. On appeal, the Petitioner contests the summary
dismissal of his petitions. In response, the State requests affirmance of the habeas corpus
court’s ruling pursuant to Rule 20.

       The determination of whether to grant habeas corpus relief is a question of law which
we will review de novo without a presumption of correctness. Summers v. State, 212 S.W.3d
251, 255 (Tenn. 2007). 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).

        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). However,
“[s]uch relief is available only when it appears from the face of the judgment or the record
of the proceedings that a trial court was without jurisdiction to sentence a defendant or that
a defendant’s sentence of imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d
at 322; see also Tenn. Code Ann. § 29-21-101 (2000). In other words, habeas corpus relief
may be sought only when the judgment is void, not merely voidable. 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, 995 S.W.2d at 83).

       In the Petitioner’s appellate brief, his appointed counsel concedes that the Petitioner
“has found no [s]tatutory or [c]ase law in opposition to the Habeas Corpus Trial Court
ruling.” This court’s opinion on direct appeal reflects that the trial court found enhancement
but no mitigating factors. Duncan, No. 03C01-9110-CR-334, 1992 WL 158281, at *2. At
the time the Petitioner was sentenced, our code provided that if there were enhancement
factors but no mitigating factors, the trial court may set the sentence above the minimum but
within the range. Tenn. Code Ann. § 40-35-210(d). Additionally, a standard Range I
offender convicted of a Class A felony was subject to a sentence between fifteen and twenty-
five years. Tenn. Code Ann. § 40-35-112(a)(1). Thus, the twenty-five-year sentence imposed
was within the range for a Class A felony. Accordingly, we conclude that the Petitioner’s
sentence is not void and that he is not entitled to habeas corpus relief.




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       We conclude that the court properly dismissed the Petitioner’s habeas corpus petition
and therefore grant the State’s motion. The judgment of the habeas corpus court is affirmed
pursuant to Rule 20, Rules of the Court of Criminal Appeals.

                                                  ___________________________________
                                                  NORMA McGEE OGLE, JUDGE




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