        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs September 24, 2013 at Knoxville

               KEVIN D. MCMILLAN v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Hickman County
                    No. 13-CV-18     James G. Martin, III, Judge




                No. M2013-01193-CCA-R3-HC Filed October 14, 2013


The Petitioner, Kevin D. McMillan, pled guilty to the sale of a controlled substance, less than
0.5 grams of cocaine. The trial court sentenced the Petitioner to three years of incarceration,
to be served consecutively to two other convictions, in the Tennessee Department of
Correction. The Petitioner filed a pro se petition for a writ of habeas corpus, which the
habeas court summarily dismissed. On appeal, the Petitioner contends that the habeas court
erred when it summarily dismissed his petition. After a thorough review of the record and
applicable law, we affirm the habeas corpus court’s judgment.

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

R OBERT W. W EDEMEYER, 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.

Kevin D. McMillan, Only, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Kim R. Helper, District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                          I. Facts
                                       A. Trial Court

      On August 16, 2007, the Petitioner entered a plea of guilty in Davidson County
Criminal Court to the sale of a controlled substance, less than 0.5 grams of cocaine. Pursuant
to the plea agreement, the Petitioner agreed to a three-year sentence, to be served
consecutively to an eight-year sentence he was serving for two prior convictions, for an
effective sentence of eleven years. The trial court ordered the Petitioner to serve his three-
year sentence with the Tennessee Department of Correction (“TDOC”), and it noted on the
judgment that it ordered the Petitioner to serve his sentence in “TDOC because [the
Petitioner is] serving [an] 8 year sentence.”

                                  B. Habeas Corpus Court

       The Petitioner filed a petition for a writ of habeas corpus on April 16, 2013, alleging
that his sentence was illegal because the trial court ordered him to serve his three-year
sentence in the TDOC, which the Petitioner contends was in violation of Tennessee Code
Annotated, section 40-35-104(b).

       On April 23, 2013, the habeas corpus court summarily dismissed the Petitioner’s
petition, stating that the Petitioner’s contention that “his place of confinement resulting from
the judgment entered August 7, 2007, reflecting that he was to serve his sentence with the
[TDOC]” did not “justify [the habeas corpus court] granting relief on either his Motion or
his Petition.” The habeas corpus court found that the Petitioner had made no showing that
“the convicting court was without jurisdiction or authority to sentence him[,]” and it
dismissed the petition.

       It is from this judgment that the Petitioner now appeals.

                                         II. Analysis

        On appeal, the Petitioner contends that the habeas corpus court erred when it
concluded that the trial court’s judgment was not illegal or that the trial court did not lack
jurisdiction when it ordered the Petitioner to serve his sentence with the TDOC; he contends
that the trial court “use [sic] the consecutive sentencing law to abrogate T.C.A. § 40-35-
104(a), (b) and T.C.A. § 40-35-212(a) in order to deny [him] the right to serve his three year
sentence in the CCA Metro Detention Facility[.]” The State responds that the petition fails
to state a cognizable claim for habeas relief, arguing that the trial court had the authority to
order the Petitioner’s “continuous confinement in TDOC” and that, because the Petitioner’s
effective sentence is eleven years, Tennessee Code Annotated section 40-35-104, which
addresses total sentences of at least one year but not more than three years, does not apply.
We agree with the State.

       Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas
corpus relief. See Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007). Although the right
is guaranteed in the Tennessee Constitution, the right is governed by statute. T.C.A. § 29-21-
101 to 130 (2006). The determination of whether habeas corpus relief should be granted is

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a question of law and is accordingly given de novo review. Smith v. Lewis, 202 S.W.3d 124,
127 (Tenn. 2006); Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). Although there is no
statutory time limitation which applies to bar the filing of a habeas corpus petition, the
grounds upon which relief can be granted are very narrow. Taylor v. State, 995 S.W.2d 78,
83 (Tenn. 1999).

        It is the burden of the petitioner 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). In other words, the very narrow grounds upon which a habeas corpus
petition can be based are as follows: (1) a claim there was a void judgment which was
facially invalid because the convicting court was without jurisdiction or authority to sentence
the Petitioner; or (2) a claim the Petitioner’s sentence has expired. Stephenson v. Carlton,
28 S.W.3d 910, 911 (Tenn. 2000); Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “An
illegal sentence, one whose imposition directly contravenes a statute, is considered void and
may be set aside at any time.” May v. Carlton, 245 S.W.3d 340, 344 (Tenn. 2008) (citing
State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)). In contrast, a voidable judgment is
“one that is facially valid and requires the introduction of proof beyond the face of the record
or judgment to establish its invalidity.” Taylor, 995 S.W.2d at 83; see State v. Ritchie, 20
S.W.3d 624, 633 (Tenn. 2000).

       The Petitioner’s contention that his sentence is a violation of Tennessee Code
Annotated section 40-35-104 is not a valid claim for habeas corpus relief. The purpose of
a habeas corpus petition is to contest a void, not merely voidable, judgment. Hutton v. State,
No. M2005-00585-CCA-R3-HC, 2005 WL 3487815, at *2 (Tenn. Crim. App. 2005) (citing
State ex rel. Newsome v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968)). The Petitioner
cannot collaterally attack a facially valid conviction in a habeas corpus proceeding, Hutton,
2005 WL 3487815, at *2 (citing Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992); State ex rel.
Holbrook v. Bomar, 364 S.W.2d 887, 888 (Tenn. 1963)). Thus, habeas corpus relief is
available only “when it appears on the face of the judgment of record” that a convicting court
was without authority to sentence a defendant. Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993).

       Tennessee Code Annotated, section 40-35-104(b) provides for available locations for
incarceration. It states that a sentencing court can sentence felony offenders to incarceration
only in the TDOC, unless the county otherwise contracts with the TDOC or a resolution is
passed for defendants with eligible sentences. The Petitioner’s allegation that his place of
confinement is in violation of the statute, if true, can not be shown on the face of the
judgment and, therefore, is not a cognizable claim. Furthermore, the statute is inapplicable
in that the Petitioner’s effective sentence is eleven years, consisting of the eight-year
sentence from his prior convictions and a consecutive three-year sentence from the Davidson

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County conviction.

       Accordingly, the Petitioner’s sentence is not void and thus, his claim is not a valid one
for habeas corpus relief. The Petitioner is not entitled to relief.

                                       III. Conclusion

      Based on the foregoing reasoning and authorities, we affirm the judgment of the
habeas corpus court.


                                                    _________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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