        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON


               DAVID A. ROMANO v. TONY PARKER, WARDEN

               Direct Appeal from the Circuit Court for Fayette County
                        No. 5295    J. Weber McCraw, Judge


               No. W2010-00271-CCA-R3-HC - Filed December 8, 2010


The petitioner, David A. Romano, appeals the Fayette County Circuit Court’s summary
dismissal of his petition for the writ of habeas corpus. The petitioner pled guilty to one count
of Class D felony forgery, two counts of Class E felony forgery, and one count of Class A
misdemeanor theft of property. He was subsequently sentenced to concurrent sentences of
twelve years, two six-year sentences, and eleven months and twenty-nine days for the
respective convictions. He was further ordered to serve the sentences in confinement. After
a period, the trial court granted the petitioner’s motion to serve the balance of the sentences
on probation; however, his probation was later revoked and the petitioner remains
incarcerated to date. On appeal, the petitioner argues that the trial court was without
authority or jurisdiction to allow him to serve his sentence on probation because his sentence
was greater than ten years, which precluded his eligibility to receive a probationary sentence.
 The State has filed a motion requesting that this court affirm the lower court’s dismissal
pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Because the petitioner
has failed to establish that he is currently restrained pursuant to an illegal sentence, we grant
the State’s motion and affirm the judgment of the Fayette County Circuit Court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which A LAN E. G LENN
and J.C. M CL IN, JJ., joined.

David Romano, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Benjamin A. Ball, Assistant
Attorney General, for the appellee, State of Tennessee.
                               MEMORANDUM OPINION

       In January 2003, the petitioner pled guilty to three counts of forgery and one count of
theft of property. Pursuant to the agreement, he was sentenced, as a career offender, to
concurrent sentences of twelve years, six years, six years, and eleven months and twenty-nine
days, which were to be served in incarceration. In August 2003, the petitioner filed a petition
to suspend his sentence to probation, which the trial court granted. The petitioner remained
on probation until November 2003, when the trial court determined that he was in violation
of probation and ordered him to serve one hundred-fifty days in jail prior to being released
back to probation. Thereafter, a second violation warrant was issued in December 2004, and
a revocation of probation order was entered in August of 2005. The petitioner has remained
incarcerated since that time.

       In December 2009, the petitioner filed the instant petition for writ of habeas corpus,
asserting that he was serving an illegal sentence. Specifically, he asserted that his sentence
was illegal because the trial court “was without legal authority and jurisdiction to
modify/change his sentence from [twelve] years at [sixty percent] of incarceration, to that of
probation as an alternative to incarceration,” because his sentence was greater than ten years,
which violated Tennessee Code Annotated section 40-35-303. Thereafter, the habeas corpus
court entered an order summarily denying the petition because the petitioner had failed to
establish that he was incarcerated pursuant to an illegal sentence. The petitioner has timely
appealed.

       The right to seek habeas corpus relief is guaranteed by Article I, section 15 of the
Tennessee Constitution. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing State
v. Ritchie, 20 S.W.3d 624, 629 (Tenn. 2000)); Hickman v. State, 153 S.W.3d 16, 19 (Tenn.
2004). However, the grounds upon which habeas corpus relief will be granted are narrow.
Id. Relief will only be granted if the petition establishes that the challenged judgment is
void. Id. A judgment is void “only when ‘it 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 [petitioner], or that a [petitioner’s] sentence
of imprisonment or other restraint has expired.” Id. (quoting Archer v. State, 851 S.W.2d
157, 164 (Tenn. 1993)). Unlike the post-conviction petition, the purpose of the habeas
corpus petition is to contest a void, not merely voidable, judgment. Id. at 255-56; State ex
rel. Newsom v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189 (Tenn. 1968).

       The petitioner has the burden of establishing either a void judgment or an illegal
confinement by a preponderance of the evidence. Passarella v. State, 891 S.W.2d 619, 627
(Tenn. Crim. App. 1994). If the petitioner carries this burden, he is entitled to immediate
release. Id. However, if the habeas corpus petition fails to demonstrate that the judgment

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is void or that the confinement is illegal, neither appointment of counsel nor an evidentiary
hearing is required and the trial court may properly dismiss the petition. Hickman, 153
S.W.3d at 20 (citing T.C.A. § 29-21-109 (2000); Dixon v. Holland, 70 S.W.3d 33, 36 (Tenn.
2002)); Passarella, 891 S.W.2d at 619). Because the determination of whether habeas
corpus relief should be granted is a question of law, this court’s review is de novo with no
presumption of correctness. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000).

       The petitioner contends that the habeas court erred in dismissing his petition because
he claims that the circuit court was without legal authority and jurisdiction to modify his
sentence of twelve years of incarceration to probation. According to the petitioner, because
his sentence was greater than ten years, this modification was in direct contravention of
Tennessee Code Annotated section 40-35-303, thereby rendering his sentence illegal and
void. He further submits that the court “can correct his illegal sentence by awarding him the
days he was on probation and the days he served while on probation, for a total of 962 days,
which would mean he actually served those days on his sentence, instead of being on
probation, which would render his sentence legal.” The petitioner does not allege that the
originally imposed sentence of twelve years of incarceration is illegal.

        We do agree with the petitioner’s contention that Tennessee Code Annotated section
40-35-303 states that “[a petitioner] shall be eligible for probation . . . if the sentence actually
imposed upon the [petitioner] is ten (10) years or less.” We further agree that the petitioner’s
twelve-year sentence for forgery precluded him being eligible to receive probation.
However, the habeas corpus court’s order of denial notes that “[t]he sentence of twelve years
at [sixty percent] is the correct sentence for his conviction. While the gift of probation
should not have been given to the petitioner, the order of probation does not render the
sentence as void.”

       We agree with the habeas corpus that the petitioner has failed to show that he is
currently restrained pursuant to an illegal sentence. The orders of probation granted in this
case were revoked, and the petitioner was then ordered to serve the sentence in incarceration
as originally imposed. Thus, he is currently “restrained of his liberty” by a twelve-year
sentence of incarceration, a sentence he does not assert is illegal. Accordingly, he has failed
to establish his entitlement to habeas corpus relief, and the petition was properly denied.

        When an opinion would have no precedential value, the Court of Criminal Appeals
may affirm the judgment or action of the lower court by memorandum opinion when the
action is not a determination of guilt and the evidence does not preponderate against the
findings of the trial court. See Tenn. Ct. Crim. App. R. 20. We conclude that this case
satisfies the criteria of Rule 20. Accordingly, it is ordered that the State’s motion is granted.
The judgment of the habeas corpus court is affirmed in accordance with Rule 20 of the Rules

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of the Court of Criminal Appeals.




                                          _________________________________
                                          JOHN EVERETT WILLIAMS, JUDGE




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