        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 05, 2014

               VERNON MOTLEY v. JERRY LESTER, WARDEN

                Appeal from the Circuit Court for Lauderdale County
                        No. 6727   Joe H. Walker, III, Judge




               No. W2014-00355-CCA-R3-HC - Filed January 30, 2015


Petitioner, Vernon Motley, appeals from the trial court’s summary dismissal of Petitioner’s
petition for writ of habeas corpus relief. Petitioner was convicted by a Shelby County jury
for first degree premeditated murder and received a sentence of life imprisonment. His
conviction was affirmed on appeal. See State v. Vernon Motley, No. W2010-01989-CCA-
R3-CD, 2012 WL 1080479 (Tenn. Crim. App. Mar. 29, 2012). Petitioner asserts he is
entitled to habeas corpus relief because the trial court, in effect, imposed a sentence of life
without possibility of parole without jurisdiction to do so. Our review of the record shows
that Petitioner was properly sentenced to the only sentence he could receive, and we therefore
affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, P.J., delivered the opinion of the Court, in which A LAN E. G LENN and
R OGER A. P AGE, JJ., joined.

Vernon Motley, Henning, Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel; and
D. Michael Dunavant, District Attorney General, for the appellee, the State of Tennessee.

                                         OPINION

       At the time Petitioner committed the first degree premeditated murder in February
2008 for which he was convicted, there existed three possible sentences for a first degree
murder conviction: death, imprisonment for life without possibility of parole, or
imprisonment for life. T.C.A. § 39-13-202(c)(1), (2), and (3). It appears from the appellate
record that in Petitioner’s case the State did not file pre-trial notice to seek a sentence of
death or imprisonment for life without possibility of parole, and therefore the only possible
punishment for Petitioner upon a conviction for first degree murder was imprisonment for
life. See Tenn. R. Crim. P. 12.3(b) and T.C.A. § 39-13-208(a), (b), and (c).

         Petitioner asserts, however, that he unlawfully received a sentence of imprisonment
for life without possibility of parole. Petitioner argues that T.C.A. § 40-35-501(i)(1) and (2)
mandate that for any first degree murder conviction a person must serve “one hundred
percent (100%) of the sentence imposed by the court less sentence credits earned and
retained,” but no such reductions can reduce the sentence by more than fifteen percent (15%).

        In Jerry D. Carney, II v. Dwight Barbee, Warden, No. W2011-01977-CCA-R3-HC,
2012 WL 5355665 (Tenn. Crim. App. Oct. 31, 2012), a panel of this court addressed an
identical legal theory in an appeal from the summary dismissal of a habeas corpus petition.
In Jerry D. Carney, II, the appellant attacked his sentence of imprisonment for life after he
was convicted by a jury of first degree premeditated murder. Id. at *1. Specifically, the
petitioner in Jerry D. Carney, II, asserted his sentence was illegal “because the ‘statutory
sentencing scheme contained in T[ennessee] C[ode] A[nnotated section] 40-35-
501(i)(1)&(2). . . does not provide for the possibility of parole upon a defendant being
sentenced to imprisonment for life.’” Id. The petitioner asserted, like Petitioner in the case
sub judice, that he had illegally been sentenced by the trial court and not by a jury for
imprisonment without possibility of parole because T.C.A. § 40-35-501(i) eliminates release
eligibility for any person convicted of first degree murder. Id.

       The court in Jerry D. Carney, II, set forth the applicable law pertaining to habeas
corpus petitions as follows:

        The determination of whether to grant habeas corpus relief is a question of
        law and our review is de novo. Summers v. State, 212 S.W.3d 251, 262
        (Tenn. 2007). The Tennessee Constitution guarantees a convicted criminal
        defendant the right to seek habeas corpus relief. Tenn. Const. art. I, § 15.
        However, the grounds upon which habeas corpus relief will be granted are
        very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). In this state,
        habeas corpus relief only addresses detentions that result from void
        judgments or expired sentences. Archer v. State, 851 S.W.2d 157, 164
        (Tenn. 1993). A judgment is void “only when ‘[i]t appears upon the face
        of the judgment or the record of the proceedings upon which the 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.” Hickman v. State, 153 S.W.3d 16, 20 (Tenn.
        2004) (quoting State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000) (citations

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        omitted)). On the other hand, a voidable judgment or sentence is one which
        is facially valid and which requires evidence beyond the face of the
        judgment or the record of the proceedings to establish its invalidity. Taylor,
        995 S.W.2d at 83.

        A sentence imposed in direct contravention of a statute is illegal and, thus,
        void. Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000). A
        petitioner bears the burden of establishing a void judgment or illegal
        confinement by a preponderance of the evidence. Hogan v. Mills, 168
        S.W.3d 753, 755 (Tenn. 2005). Moreover, it is permissible for a court to
        summarily dismiss a habeas corpus petition, without the appointment of
        counsel and without an evidentiary hearing, if there is nothing on the face
        of the record or judgment to indicate that the convictions or sentences
        addressed therein are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn.
        Crim. App. 1994).

Jerry D. Carney, II, 2012 WL 5355665 at *2.

       The panel of this Court in Jerry D. Carney, II, rejected that petitioner’s assertion that
he had in fact received, in effect, a sentence of life imprisonment without possibility of
parole when his judgment stated that he had been sentenced only to imprisonment for life.
Id. at *4. The court quoted with approval from an opinion of the Tennessee Attorney
General clarifying the effect of T.C.A. § 40-35-501(i) as follows:

                The only reasonable resulting interpretation would be that
                subsection (i) operates, in so far as it conflicts with the
                provisions of the existing statute governing release eligibility,
                to raise the floor from 60% of sixty years . . . to 100% of
                sixty years, reduced by not more than 15% of eligible credits.

        Tenn. Op. Att’y Gen., No. 97-098 (1997) (emphasis added).

Jerry D. Carney, II, 2012 WL 5355665 at *4.

        The Attorney General also concluded that a defendant serving a sentence of
imprisonment for life would be eligible for release after serving sixty years, “the [statutory]
equivalent to a life sentence,” Id., less up to fifteen percent credit for a mandatory minimum
of fifty-one years. Id. Therefore, even under the statute cited by Petitioner, T.C.A. § 40-35-
501(i), he will theoretically be eligible for release at some time in the future. Petitioner did
not receive an unauthorized or illegal sentence of imprisonment for life without possibility

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of parole. On the face of the record, he was not entitled to habeas corpus relief.
Accordingly, the judgment of the trial court is affirmed.


                                      _______________________________________
                                      THOMAS T. WOODALL, PRESIDING JUDGE




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