        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON

                  KERMIT PENLEY v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Lauderdale County
                      No. 01CR043 Joe H. Walker, III, Judge




                 No. W2013-00595-CCA-R3-HC - Filed August 6, 2013


The Petitioner, Kermit Penley, appeals the Circuit Court of Lauderdale County’s denial of
his pro se petition for writ of habeas corpus. The State has filed a motion requesting that this
Court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of
Criminal Appeals. Following our review, we grant the State’s motion and affirm the
judgment of the trial 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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and R OGER A. P AGE, JJ., joined.

Kermit Penley, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and J. Ross Dyer, Senior Counsel, for
the Appellee, State of Tennessee.

                               MEMORANDUM OPINION

         The Petitioner pled guilty to first degree murder in exchange for an agreed sentence
of life imprisonment. The Petitioner then sought post-conviction relief. The post-conviction
court denied relief, and this court affirmed the post-conviction court’s judgment on appeal.
See Kermit Penley v. State, No. E2004-00129-CCA-R3-PC, 2004 Tenn. Crim. App. LEXIS
965 (Tenn. Crim. App., at Knoxville, Nov. 1, 2004), perm. app. denied (Tenn. Feb. 28,
2005).

       In January 2013, the Petitioner filed a petition for writ of habeas corpus in which he
claimed that his sentence was illegal because the trial court erroneously sentenced him under
the 1982 Sentence Act rather than the 1989 Sentencing Act. On February 4, 2013, the trial
court entered an order denying and dismissing the petition. This appeal followed.

        A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15
of the Tennessee Constitution. See also T.C.A. § 29-21-101, et seq. However, the grounds
upon which a writ of habeas corpus may be issued 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). “[T]he purpose of a habeas
corpus petition is to contest void and not merely voidable judgments.” Id. at 163. 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. In contrast,

       a voidable judgment is facially valid and requires the introduction of proof
       beyond the face of the record or judgment to establish its invalidity. Thus, in
       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.

Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citation and quotations omitted);
see also Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007). 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 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, 153 S.W.3d at 20. 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. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994).

      The State contends that the box indicating sentencing under the 1989 Act on the
judgment was “clearly” marked. However, neither the box indicating sentencing under the
1982 Act nor the box indicating sentencing under the 1989 Act are marked on the judgment.

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Regardless, the judgment clearly states the Petitioner’s sentence as life imprisonment. As
noted by the trial court, life imprisonment is the minimum sentence for first degree murder
under both the 1982 Act and the 1989 Act. See T.C.A. § 39-2-202(b) (1982); T.C.A. § 39-
13-202(c)(3) (Supp. 2002). We agree with the trial court’s conclusion that the Petitioner has
failed to establish that the judgment is void. Therefore, the Petitioner is not entitled to habeas
corpus relief.

        When an opinion would have no precedential value, the Court of Criminal Appeals
may affirm the judgment or action of the trial court by memorandum opinion when the
judgment is rendered or the action taken in a proceeding without a jury and such judgment
or action is not a determination of guilt, and the evidence does not preponderate against the
finding of the trial judge. 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 trial court is affirmed in accordance with Rule 20, Rules of the Court
of Criminal Appeals.




                                                     _________________________________
                                                     CAMILLE R. McMULLEN, JUDGE




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