           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                     FILED
                                AT KNOXVILLE                        July 28, 1999

                              APRIL 1999 SESSION                  Cecil Crowson, Jr.
                                                                  Appe llate Court
                                                                       Clerk



CECIL COLLINS,                  *    C.C.A. NO. 03C01-9805-CR-00192

      APPELLANT,                *    KNOX COUNTY

VS.                             *    Hon. Ray L. Jenkins, Judge

STATE OF TENNESSEE,             *    (Habeas Corpus)

      APPELLEE.                 *




For Appellant:                       For Appellee:

Cecil Collins, #209223               John Knox Walkup
Northeast Correction Center          Attorney General and Reporter
P.O. Box 5000                        450 James Robertson Parkway
Mountain City, TN 37683              Nashville, TN 37243-0493

                                     Todd R. Kelley
                                     Assistant Attorney General
                                     Criminal Justice Division
                                     425 Fifth Avenue North, 2nd Floor
                                     Nashville, TN 37243-0493

                                     Randall E. Nichols
                                     District Attorney General
                                     City-County Building
                                     Knoxville, TN 37902



OPINION FILED: ____________________



AFFIRMED



NORMA MCGEE OGLE, JUDGE
                                                       OPINION

                    On April 21, 1998, the petitioner, Cecil Collins, citing Tenn. Code Ann. § 29-21-101,

filed pro se a “Writ of Error/Petition to Correct and/or Amend Sentence” in the Knox County Criminal

Court. On April 30, 1998, the trial court summarily dismissed the petition, finding that the petition did

not conform to the requirements of the habeas corpus statute and failed to present a cognizable

ground for relief. Following a review of the record, w affirm the judgm of the trial court.
                                                      e                ent



                    In his petition, the appellant alleges that he pled guilty in the Knox County Criminal

Court to second degree murder and, in accordance with a plea agreem was sentenced to forty
                                                                   ent,

years incarceration in the Tennessee Departm of Correction. 1 The petitioner does not allege that
                                            ent

the convicting court was without jurisdiction or authority to sentence him, or that his sentence has

 expired. Rather, the petitioner argues that he was denied the right to appeal his guilty plea; he was

 improperly sentenced as a Range II multiple offender, and that the trial court erred by ordering the

petitioner to pay fees to the criminal injury fund in the amount of one-hundred and seven ($107.00)

 dollars.



                    The petitioner’s claim that his sentence as a Range II multiple offender is illegal is not

 cognizable in a habeas corpus proceeding. It is well established that habeas corpus relief is only

 available if it appears on the face of the judgm or the record of the proceeding upon which the
                                                 ent

 judgment is rendered that a convicting court was without jurisdiction or authority to sentence a

 defendant, or that a defendant’s sentence of imprisonment or other restraint has expired. Archer v.

State, 851 S.W.2d 157, 160 (Tenn. 1993); Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App.

1994). Moreover, claims based upon factual disputes that were already resolved at the sentencing

hearing, such as a petitioner’s sentencing range, are not subject to relitigation in a habeas corpus


            1
            We have no record of any proceedings occurring prior to these habeas corpus proceedings, including the judgment
of conviction.

                                                             2
proceeding. State ex rel. Holbrook v. Bomar, 364 S.W.2d 887, 889 (Tenn. 1963).



                    The petitioner also alleges that as a result of the trial court’s failure to advise himof

his “appellate rights,” he was effectively denied the right to appeal his guilty plea. As a general rule, a

defendant does not have a right to appeal his sentence after entering a valid plea of guilty and being

sentenced pursuant to the terms of a plea agreement. State v. McKissack, 917 S.W.2d 714, 715

(Tenn. Crim. App. 1995). Rule 3(b)(2), Tenn. R. App. P., provides as follows:

                    In criminal actions an appeal as of right by a defendant lies from any
                    judgment of conviction entered by a trial court . . . on a plea of guilty .
                    . . if the defendant seeks review of his sentence and there was no
                    plea agreement concerning the sentence, or if the issues presented
                    for review were not waived as a matter of law by the plea of guilty or
                    nolo contendre and if such issues are apparent from the record of the
                    proceedings already had.

(Emphasis added). Rule 37(b)(2), Tenn. R. Crim. P., also bars relief:

                    (b) When an Appeal Lies. An appeal lies from any order or judgment
                    in a crim proceeding where the law provides for such appeal, and
                             inal
                    from any judgment of conviction:
                                                       ***
                    (2) upon a plea of guilty or nolo contendre if:

                                                      ***
                            (ii) defendant seeks review of the sentence set and there was
                    no plea agreement under Rule 11(e).

(Emphasis added).



                    Additionally, the petitioner alleges that the trial court had an obligation to advise the

petitioner of the availability of post-conviction rights prior to accepting his guilty plea. Yet, the

petitioner cites no authority for the proposition that a trial court must advise a defendant of the

availability of post-conviction proceedings prior to accepting his guilty plea. In any event, we note that

the failure to advise the defendant fully of rights waived by the entry of a guilty plea renders the

judgm voidable rather than void, thus making petitioner’s claim in this case not cognizable in
     ent

habeas corpus proceedings. State v. Neal, 810 S.W.2d 131, 134 (Tenn. 1991). Therefore, this issue

is without merit.

                                                         3
                 Next, the petitioner alleges that the trial court erred by ordering the petitioner to pay

fees to the criminal injury fund in the amount of one-hundred and seven ($107.00) dollars. Specifically,

the petitioner contends that the trial court erred by ordering the petitioner to pay restitution along with

serving a sentence of incarceration.



                 Initially, we note that the procedural provisions pertaining to habeas corpus relief are

mandatory and m be scrupulously followed. Archer, 851 S.W.2d at 165. We note that the petitioner
               ust

did not attach the judgment of conviction in his case to his petition for habeas corpus relief, as required

by Tenn. Code Ann. § 29-21-107(b)(2) (1980). A trial court may dismiss a petition for failure to comply

with this requirement. State ex rel. Wood v. Johnson, 393 S.W.2d 135, 136 (Tenn. 1965). It is the

duty of the appellant to prepare an adequate record to allow a meaningful review on appeal. Tenn. R.

App. P. 24(b); State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993); State v. Bennett, 798 S.W.2d

783, 790 (Tenn. Crim. App. 1990). Therefore, due to the minimal record before this court, we are

unable to address this claim.



                 Accordingly, the judgment of the trial court is affirmed.




                                                    __________________________________
                                                    Norma McGee Ogle, Judge

CONCUR:



______________________________
Jerry L. Smith, Judge



_______________________________
Joe G. Riley, Judge



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