         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


                  JOHN E. LYNCH v. TONY PARKER, WARDEN

                Direct Appeal from the Circuit Court for Lauderdale County
                         No. R.D. 6071 Joe H. Walker, III, Judge



                     No. W2006-01869-CCA-R3-HC - Filed May 31, 2007




The Petitioner, John E. Lynch, appeals the lower court's denial of his petition for habeas corpus
relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule
20, Rules of the Court of Criminal Appeals. The Petitioner has failed to assert a ground that would
entitle him to habeas corpus relief. Accordingly, we affirm the trial court's dismissal.


Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the
Court of Criminal Appeals

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.
MCLIN , JJ., joined.

John E. Lynch, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Brian Clay
Johnson, Assistant Attorney General; for the appellee, State of Tennessee.


                                  MEMORANDUM OPINION


       From the record before this Court, it appears that, in November 2005, the Petitioner was
sentenced by the Marshall County Circuit Court, as a multiple offender, to three years confinement




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resulting from a guilty plea to a violation of habitual traffic offender.1 No appeal was taken. The
Petitioner avers that he filed a motion for sentence reduction and a petition for post-conviction relief,
however, the record before this Court fails to so reflect. The Petitioner alleges that prior to his guilty
plea, he had been convicted in previous years of driving on a revoked license and driving under the
influence. Specifically, the Petitioner was convicted in 1998 of driving after being declared a
habitual motor vehicle offender and driving while intoxicated, sixth offense; and, in 2000, he was
convicted of driving after being declared a habitual motor vehicle offender and driving while
intoxicated, seventh offense. In 1996, the Petitioner had been declared a habitual motor vehicle
offender.

         On July 11, 2006, the Petitioner filed a petition for habeas corpus relief in the Lauderdale
County Circuit Court. In the petition, the Petitioner alleged that the November 2005 judgment of
conviction was void. He argued that “the punishment imposed on [c]ount two [driving on a revoked
license] is not authorized by law for this [p]articular crime.” Indeed, he asserted that “[c]ount two
is a class A misdemeanor and I am punished under a 35% felony sentence for same.” The Petitioner
further claimed that the judgment was void as the initiating 1996 judgment declaring the Petitioner
a habitual motor vehicle offender was void.

         In an order entered July 18, 2006, the lower court denied habeas corpus relief. In denying
relief, the trial court entered the following findings of fact and conclusions of law:

         He alleges that the order issued declaring him to be an habitual offender by Marshall
         County Criminal Court in February 1996 is a void order. He attached the order,
         which has his name as the defendant, but in the body of the order has the name of
         David R. Ledford. He states that the conviction in 2005 should be invalidated
         because he has never been declared an habitual offender, since the wrong name was
         used in the body of the order.

         The attack of the order declaring petitioner to be an habitual offender must be filed
         in the court of conviction. This court has no jurisdiction over that matter; and does
         not have the file, and is unaware whether a corrected order has been filed.

         With regard to the current conviction in 2005 as a multiple offender, habeas corpus
         relief is not available.

The Petitioner filed a timely notice of appeal document.

        The determination of whether to grant habeas corpus relief is a question of law. McLaney v.
Bell, 59 S.W.3d 90, 92 (Tenn. 2001), overruled in part by, Summers v. State, 212 S.W.3d 251 (Tenn.
2007). The Tennessee Constitution guarantees a convicted criminal defendant the right to seek


1
 The Petitioner asserts that he was indicted on one count of violation habitual traffic offender and one count driving
on revoked license, 8 th offense. He entered guilty pleas to both offenses. The trial court merged the two convictions.

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habeas corpus relief. See 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). A petition
for habeas corpus relief may only be granted when the judgment is shown to be void, rather than
merely voidable. 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 the convicting court was without
jurisdiction or authority to sentence a defendant or that a defendant's sentence has expired. Archer
v. State, 851 S.W.2d 157, 164 (Tenn. 1993). 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 petitioner bears the burden of establishing a void judgment or illegal confinement by a
preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). Furthermore, 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).

         The Petitioner alleges that he was sentenced to three years for the misdemeanor conviction
of driving on a revoked license, eighth offense. The judgments of conviction clearly reflect that the
lower court properly merged this misdemeanor offense with the felony conviction for violating the
habitual motor vehicle act. See State v. Green, 947 S.W.2d 186, 190 (Tenn. Crim. App. 1997).
Accordingly, the three year sentence imposed for violating the habitual motor vehicle offender act
is not illegal or void.

        Next, the Petitioner asserts that 1996 order declaring him to be a habitual motor vehicle
offender is void due to a clerical error. Specifically, the order identifies the Petitioner as John E.
Lynch in the caption and twice in the first paragraph of the order. However, in the second paragraph,
the offender is identified as David R. Ledford. Notwithstanding this clerical error, the Petitioner
signed the order acknowledging that the allegations were well-founded against him. It is well
established that clerical errors do not give rise to void judgments. McChristian v. State, 159 S.W.3d
608, 610 (Tenn. Crim. App. 2004). Thus, the Petitioner’s allegations fail to state a cognizable claim
for habeas corpus relief.

       The Petitioner’s sentence has not expired and the trial court was with jurisdiction to enter the
judgment against him. For these reasons, the lower court’s dismissal of the Petitioner’s request for
habeas corpus relief was proper.

        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. R. Ct. Crim. App. 20. We conclude that this case satisfies the criteria of Rule 20.



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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.



                                                    ___________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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