                                                                                           10/10/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 27, 2019

          STEPHEN RICHARD MAYES v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Wayne County
                        No. 16364 Robert L. Jones, Judge
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                           No. M2018-01459-CCA-R3-HC
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The Petitioner, acting pro se, appeals from the denial of his petition for writ of habeas
corpus relief. Upon our review, we affirm.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which TIMOTHY L.
EASTER, and J. ROSS DYER, JJ., joined.

Stephen Richard Mayes, Clifton, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Brent A. Cooper, District Attorney General; for the Appellee, State of
Tennessee.

                                        OPINION

       On May 21, 2014, the Petitioner entered a guilty plea to aggravated kidnapping.
State v. Stephen Richard Mayes, No. E2018-00612-CCA-R3-CD, 2019 WL 1011979, at
*1 (Tenn. Crim. App. Mar. 4, 2019), perm. app. denied (Tenn. June 19, 2019). As part of
the plea agreement, the State dismissed four other counts of especially aggravated
kidnapping, aggravated robbery, and two counts of aggravated assault. “Handwritten on
the waiver of jury trial and acceptance of guilty plea form signed by [the Petitioner] in the
recommended sentence section [was]: ‘15 years to serve sentence being outside of Range
I 100% with possible 15% off for Good Behavior And sentencing credits costs. All other
counts dismissed.’” Id. at *1. During the plea colloquy, the State informed the trial court
that the Petitioner was pleading to aggravated kidnapping, that the recommended
sentence was fifteen years, and that the Petitioner, a Range II offender, was “obviously,
pleading out of range[,]” and that as the crime was a violent offense, service of the
sentence was going to be at one hundred percent. The parties agreed that the Petitioner
could potentially be entitled to fifteen percent credit for good behavior. The trial court
ensured that the Petitioner understood the rights that he was waiving by pleading guilty to
the charged offense. The trial court informed the Petitioner that he was entering his
guilty plea as a Range II offender, which had a sentencing range of twelve to twenty
years. The trial court informed the Petitioner that the service of the sentence would be
100% less any time for good behavior. The Petitioner informed the trial court that he had
not taken any medication in the last 24 hours and that he was “technically” married. The
Petitioner said that he was homeless and that he was the father of six minor children. The
Petitioner said that he understood his rights and that he wanted to plead guilty. Id. The
trial court entered the agreed upon out-of-range sentence of fifteen years of incarceration,
to be served as a Range II offender.

        Nearly four years later, on March 12, 2018, the Petitioner filed a motion to correct
an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure,
contending that his sentence directly contravenes the applicable statute because “he was
pleading guilty as a Range I offender but sentenced outside the applicable range at fifteen
years.” He argued further that he was “suffering ‘serious mental illness’ that rendered
him incompetent at the time of his guilty plea.” Id. The trial court summarily dismissed
his motion, and this court affirmed, reasoning as follows:

               Generally, a trial court’s error “in offender classification” will not
       “render the sentence illegal so long as the classification falls with the
       purview of the Sentencing Act.” Cantrell v. Easterling, 346 S.W.3d 445,
       458 (Tenn. 2011). The only time an error in the classification of an
       offender would ever rise to the level of an illegal sentence would be if a
       trial court, somehow, classified a defendant in a category not available
       under the Sentencing Act. Id. at 458-59. Put another way, an offender
       classification would create an illegal sentence only if the trial court
       classified the defendant in a category for which it did “not have the
       authority or the jurisdiction to classify a defendant.” Id. at 458. Otherwise,
       “[c]orrection of an alleged error in offender classification must be sought
       on direct appeal.” Id.

               Furthermore, our courts have long recognized “the ability of the
       State and defendants to use offender classification and release eligibility as
       subjects of plea bargain negotiations” which “are properly characterized as
       non-jurisdictional.” McConnell v. State, 12 S.W.3d 795, 798 (Tenn. 2000).
       That appears to be just what occurred here. The [Petitioner] pleaded guilty
       to one count of a five-count indictment. In exchange, the State agreed to a
       fifteen-year sentence, which was within the range for a Class B felony but
       above the range for a Range I offender. The [Petitioner] acknowledged at
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        the guilty plea hearing that he understood his sentence, the classification,
        and the applicable range. The [Petitioner] is not entitled to relief on this
        issue.

Stephen Richard Mayes, 2019 WL 1011979, at *3.

       On June 14, 2018, the Petitioner filed a petition for writ of habeas corpus, arguing,
yet again, that his agreed upon sentence is illegal. On July 19, 2018, the State filed a
motion to dismiss the petition for writ of habeas corpus, which was granted by order of
the habeas corpus court on August 3, 2018. On August 6, 2018, the Petitioner filed a
motion for relief from judgment or order, alleging that he was not served with the State’s
motion to dismiss, which denied him due process by not having the opportunity to
respond. The Petitioner filed a notice of appeal with this court on August 10, 2018. On
September 12, 2018, the habeas corpus court filed an order granting the Petitioner an
additional 30 days to respond to the State’s motion to dismiss, and the Petitioner filed his
response on October 11, 2018. On November 15, 2018, the habeas corpus court entered a
“final order denying relief from order granting motion to dismiss.”1

                                              ANALYSIS

       The Petitioner asserts that his fifteen-year sentence is illegal because it is outside
the range for a standard offender for a Class B felony. He also asserts that the “uninform
judgment order reflects a Range II offender classification that was not the agreement
between the State and the [Petitioner].” He argues, as a result, that his plea was not
knowingly and voluntarily entered, the judgment is void, and the habeas corpus court
erred by dismissing his petition for relief. The State responds that the Petitioner’s
sentence is not illegal and that he is entitled to no relief. We agree with the State.

       “The determination of whether habeas corpus relief should be granted is a question
of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21
S.W.3d 901, 903 (Tenn. 2000)). Accordingly, our review is de novo without a
presumption of correctness. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing
State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006)).

       A prisoner is guaranteed the right to seek habeas corpus relief under Article I,
section 15 of the Tennessee Constitution. Tenn. Const. art. I, § 15; see Tenn. Code Ann.
§§ 29-21-101 to -130. The grounds upon which a writ of habeas corpus may be issued,
        1
          The State notes that the trial court was without authority to grant the Petitioner additional time
to respond once he filed the notice of appeal. “When an appeal is filed, the trial court loses jurisdiction,
and the jurisdiction of the Court of Criminal Appeals attaches.” State v. Peele, 58 S.W.3d 701, 704 (Tenn.
2001). Therefore, while this is true, this case is nevertheless properly before this Court on appeal.
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however, are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). “Habeas
corpus relief is available in Tennessee 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 defendant, or that a
defendant’s sentence of imprisonment or other restraint has expired.” Archer v. State,
851 S.W.2d 157, 164 (Tenn. 1993) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326,
337 (1868)). A habeas corpus petition challenges void and not merely voidable
judgments. Summers, 212 S.W.3d at 255 (citing Potts v. State, 833 S.W.2d 60, 62 (Tenn.
1992)). “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.” Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton, 978 S.W.2d
528, 529 (Tenn. 1998); Archer, 851 S.W.2d at 161-64). However, a voidable judgment
“is facially valid and requires proof beyond the face of the record or judgment to
establish its invalidity.” Summers, 212 S.W.3d at 256 (citing Dykes, 978 S.W.2d at 529;
Archer, 851 S.W.2d at 161-64). Thus, “[i]n all cases where a petitioner must introduce
proof beyond the record to establish the invalidity of his conviction, then that conviction
by definition is merely voidable, and a Tennessee court cannot issue the writ of habeas
corpus under such circumstances.” State v. Ritchie, 20 S.W.3d 624, 633 (Tenn. 2000).
Moreover, it is the petitioner’s burden to demonstrate, by a preponderance of the
evidence, that the judgment is void or that the confinement is illegal. Wyatt v. State, 24
S.W.3d 319, 322 (Tenn. 2000). If this burden is met, the Petitioner is entitled to
immediate release. State v. Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986)
(citing Ussery v. Avery, 432 S.W.2d 656, 658 (Tenn. 1968)).

       If the habeas corpus court determines from the petitioner’s filings that no
cognizable claim has been stated and that the petitioner is not entitled to relief, the
petition for writ of habeas corpus may be summarily dismissed. See Hickman v. State,
153 S.W.3d 16, 20 (Tenn. 2004). Further, the habeas corpus court may summarily
dismiss the petition without the appointment of a lawyer and without an evidentiary
hearing if there is nothing on the face of the judgment to indicate that the convictions are
void. Summers, 212 S.W.3d at 261; Hickman, 153 S.W.3d at 20. “The petitioner bears
the burden of providing an adequate record for summary review of the habeas corpus
petition, including consideration of whether counsel should be appointed.” Summers,
212 S.W.3d at 261.

        In this case, the Petitioner has raised the same issue that was rejected by this court
in his appeal from the denial of relief pursuant to Rule 36.1. See Stephen Richard Mayes,
2019 WL 1011979, at *3. In that case, we determined that the Petitioner’s sentence was
not illegal for purposes of Rule 36.1 because the Petitioner’s offender classification was
within the purview of the Sentencing Act, and the parties used the Petitioner’s offender
classification, which is non-jurisdictional, as part of the plea bargaining negotiations.
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Based on the same reasoning and authority, we conclude that the Petitioner is not entitled
to habeas corpus relief. See Davis v. State, 313 S.W.3d 751, 759-60 (Tenn. 2010) (noting
that “parties may agree to a ‘hybrid’ sentence that ‘mixes and matches’ range assignment,
term of years, and release eligibility without regard to what our sentencing scheme might
call for absent a plea bargain so long as (1) the term of years is within the overall range of
years specified for the offense, and (2) the RED (release eligibility date) is not less than
the minimum allowable for the offense”); see also State v. Wooden, 478 S.W.3d 585,
594-95 (Tenn. 2015)(noting that the definition of an “illegal sentence” under Rule 36.1
“is coextensive with, and actually mirrors,” the definition of illegal sentence for purposes
of a petition for writ of habeas corpus).

       Additionally, to the extent that the Petitioner claims that his guilty plea was
unknowingly and involuntarily entered, he is likewise not entitled to habeas corpus relief.
Archer, 851 S.W.2d at 164 (noting that a challenge to the voluntariness of a guilty plea
requires proof beyond a facially valid judgment and is therefore not void but merely
voidable). Because the Petitioner has failed to carry his burden of establishing that the
habeas corpus court erred in dismissing his motion, he is not entitled to relief.

                                      CONCLUSION

       Based on the above authority and analysis, we affirm the dismissal of the petition
for writ of habeas corpus.


                                              ____________________________________
                                              CAMILLE R. MCMULLEN, JUDGE




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