         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs May 18, 2004

              JIMMY LESLIE SLUDER v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Knox County
                             No. 76772    Ray L. Jenkins, Judge



                      No. E2003-02222-CCA-R3-PC - Filed June 24, 2004


The petitioner, Jimmy Leslie Sluder, appeals the trial court's dismissal of his petition for habeas
corpus relief. The single issue presented for review is whether the trial court erred by dismissing the
petition for writ of habeas corpus without an evidentiary hearing. The judgment is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E. GLENN ,
JJ., joined.

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Jimmy Leslie Sluder.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; and
Zane Scarlett, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

         As the result of a driving incident occurring June 17, 1987, the petitioner entered pleas of
guilt to aggravated assault, two counts of leaving the scene of an accident involving personal injury,
and driving on a revoked license. A related murder charge went to trial and resulted in a jury verdict
of guilt for murder in the second degree. The trial court imposed a sentence of six years for the
aggravated assault and a consecutive sentence of 50 years for murder in the second degree. Because
the other sentences were ordered to be served concurrently, the effective sentence was 56 years.

         The facts underlying the charges had to do with the petitioner's driving recklessly,
intoxicated, and at a high rate of speed. Prior to the incident, the petitioner remarked to a witness,
"That's the one thing I've never done is hit a kid." Later, the petitioner announced that he was "going
to kill somebody" that day and, shortly before the crimes at issue, the petitioner said, "Watch me go
hit these kids." While speeding, the petitioner drove onto a sidewalk, struck two children who were
riding on their bicycles, and ran into the corner of a house. The petitioner, who according to
witnesses was visibly drunk, fled from the scene on foot. Later, after his arrest, a breathalyzer
examination indicated a blood alcohol content of .31%. One of the two victims, Charles Anthony
Romines, was killed instantly. The other, Robert Carr, was injured. On appeal, this court affirmed.
State v. Jimmy L. Sluder, No. 1236 (Tenn. Crim. App., at Knoxville, Mar. 14, 1990). Application
for permission to appeal to the supreme court was denied on July 16, 1990.

        In 1991, the petitioner filed a petition for post-conviction relief. Some five years later, the
post-conviction court rejected the claim. On appeal, the petitioner argued that he had been denied
the effective assistance of counsel. This court affirmed the denial of relief, holding that the guilty
pleas to the charges other than murder in the second degree qualified as a reasonable trial strategy,
that the decision not to call two potential defense witnesses was reasonable because their testimony
would have been more harmful than helpful, and that the failure to argue the motion to suppress did
not result in any prejudice because the petitioner was unable to demonstrate that the motion would
have been granted. Jimmy Leslie Sluder v. State, No. 03C01-9605-CR-00184 (Tenn. Crim. App.,
at Knoxville, Feb. 27, 1997). Application for permission to appeal to the supreme court was denied
on July 7, 1997.

        On January 12, 2001, the petitioner filed a request to re-open the post-conviction petition,
claiming that he was impermissibly sentenced as a Range II offender based on facts not set forth in
the indictment or submitted to the jury in contravention of the ruling in Apprendi v. New Jersey, 530
U.S. 466 (2000). Because Apprendi did not apply retroactively on collateral review, the post-
conviction court refused to re-open the petition and this court denied application to appeal.

        On March 24, 2003, the petitioner filed a pro se petition for writ of habeas corpus, alleging,
among other things, that his convictions were illegal and void. Among his contentions was that a
vehicular homicide precludes prosecution for second degree murder by use of an automobile. See
Tenn. Code Ann. § 39-13-213. Upon motion by the state, the trial court dismissed the petition on
the basis that the sentence had not expired and that the judgment of conviction was not void.

        A writ of habeas corpus may be granted only when the petitioner has established a lack of
jurisdiction for the order of confinement or that he is otherwise entitled to immediate release because
of the expiration of his sentence. See Ussery v. Avery, 222 Tenn. 50, 432 S.W.2d 656 (1968); State
ex rel Wade v. Norvell, 1 Tenn. Crim. App. 447, 443 S.W.2d 839 (1969). Habeas corpus relief is
available in this state only when it appears on the face of the judgment or the record that the trial
court was without jurisdiction to convict or sentence the petitioner or that the sentence of
imprisonment has otherwise expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v.
State, 833 S.W.2d 60, 62 (Tenn. 1992). Unlike the post-conviction petition which would afford a
means of relief for constitutional violations, such as the deprivation of the effective assistance of
counsel, the purpose of the habeas corpus petition is to contest a void, not merely a voidable,
judgment. State ex rel Newsome v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189 (1969). A
petitioner cannot attack a facially valid conviction in a habeas corpus proceeding. Potts v. State, 833
S.W.2d at 62; State ex rel Holbrook v. Bomar, 211 Tenn. 243, 364 S.W.2d 887, 888 (1963).




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        A sentence imposed in direct contravention of a statute is void and illegal and therefore
subject to habeas corpus relief. Stephenson v. Carlton, 228 S.W.3d 910, 911 (Tenn. 2000). The
petitioner has the burden of showing 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); State ex rel
Kuntz v. Bomar, 214 Tenn. 500, 504, 381 S.W.2d 290, 291-92 (1964). A void judgment is facially
invalid due to a lack of statutory authority for the rendering of the judgment. A voidable judgment
is one that is facially valid and requires proof in order to demonstrate its lack of validity. Dykes v.
Compton, 978 S.W.2d 528, 529 (Tenn. 1998).

         Here, the petitioner, while continuing to assert that his trial counsel was ineffective, primarily
argued that the trial court improperly instructed the jury on second degree murder rather than
vehicular homicide and that the 50-year sentence imposed for murder in the second degree was
illegal because the other convictions, to which he pled guilty, enhanced his range of punishment.

       In our view, the trial court properly dismissed the petition. In the direct appeal of the
conviction, the issue most strenuously argued by the petitioner was resolved in the following manner:

        Contrary to the appellant's contention, the evidence in this case would have supported
        a finding that the homicide he committed was a "knowing killing of another." The
        appellant's conduct in attempting to strike two other youths, his statements that he
        was going to kill somebody that day, and his statement to others that they should
        watch him hit the two victims would support such a conviction.

        [T]he [s]tate established the mens rea necessary to support the . . . conviction for
        second degree murder. The statements made by the appellant, particularly the
        statement that he was going to hit the two young victims, established express
        malice–direct evidence of the appellant's mental state at the time he struck and killed
        young Romines. The physical condition and conduct of the appellant, namely,
        driving a motor vehicle while under the influence of an intoxicant, making a turn
        traveling twice as fast as the established safe speed for making the turn, his degree
        of intoxication as well as other conduct established implied malice–facts and
        circumstances surrounding the commission of the offense from which the jury could
        find the element of malice.

                                                  ***

               The appellant's argument that he should have been convicted of vehicular
        homicide rather than murder in the second degree based upon the rationale of the new
        criminal code has already been addressed in this opinion.

               The trial judge properly found that the appellant committed especially
        aggravated offenses which justified the imposition of Range II sentences [under the
        Tennessee Sentencing Reform Act of 1982]. Contrary to the appellant's argument,


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        the trial judge did not impose the Range II sentences because the offense involved
        two separate victims. . . .

        The sentences imposed are no greater than that deserved for the offenses, and the
        sentences are the least severe measure necessary to achieve the purposes for which
        the sentences were imposed.

Jimmy L. Sluder, No. 1236, slip op. at 6-7, 13 (footnotes omitted).

         Furthermore, this court on the appeal of the denial of post-conviction relief rejected the
petitioner's claim that he had been denied the effective assistance of counsel by pleading guilty to
all but the second degree murder charge:

        [P]leading the petitioner guilty . . . was part of trial counsel's trial strategy of pleading
        . . . guilty to all charges except second degree murder in the hope that the jury would
        see that he accepted responsibility for his actions and [in the hope that the jury]
        would be merciful.

Jimmy Leslie Sluder, No. 03C01-9605-CR-00184, slip op. at 9.

         In our view, the petitioner has failed to set forth any allegations that would indicate that the
trial court lacked jurisdiction to enter a judgment of conviction or sentence. The record demonstrates
that the sentence has not expired. None of the claims address the facial validity of the judgment or
the jurisdiction of the convicting court. The appropriate manner for challenging a voidable judgment
is through a petition for post-conviction relief. In this instance, the petitioner has exercised his
entitlement to seek post-conviction relief and he has failed.

        Accordingly, the judgment is affirmed.



                                                          ___________________________________
                                                          GARY R. WADE, PRESIDING JUDGE




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