         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE


                   LARRY W. CLARK v. RICKY BELL, WARDEN

                 Direct Appeal from the Criminal Court for Davidson County
                          No. 3598    J. Randall Wyatt, Jr., Judge



                      No. M2005-00285-CCA-R3-HC - Filed May 26, 2005


The Petitioner, Larry W. Clark, appeals from the dismissal of his petition for the writ of habeas
corpus. The State has filed a motion requesting that the Court affirm the trial court’s denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State’s motion has merit.
Accordingly, the motion is granted and the judgment of the trial court is affirmed pursuant to Rule
20, Rules of the Court of Criminal Appeals.


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


ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES, and
JERRY L. SMITH , JJ, joined.

Larry W. Clark, pro se, Nashville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General, for the
appellee, State of Tennessee.


                                   MEMORANDUM OPINION


        The Petitioner pled guilty to second degree murder on May 30, 1986. Under the Sentencing
Act of 1982, the trial court sentenced the Petitioner to fifty years in prison, as a Range II persistent
offender sentenced for an especially aggravated offense. On December 2, 2004, the Petitioner filed
a pro se petition for writ of habeas corpus relief in the Davidson County Criminal Court. He asserted
that the 1982 Criminal Sentencing Reform Act was unconstitutional and unconstitutionally applied
to him. He argues that the trial court did not have the authority to impose a sentence above the
statutory minimum without a jury’s determination of the facts used to enhance his sentence, rendering
his convictions and sentences void. On January 4, 2005, the trial court dismissed the petition, finding
that the Shelby County Criminal Court had jurisdiction to sentence the Petitioner and that the
Petitioner’s sentence was not void. Further, the court held that the Supreme Court mandates in
Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004) and Apprendi v. New Jersey, 530 U.S.
466 (2000) were not in conflict with the 1982 sentencing scheme. The Petitioner filed his notice of
appeal in the trial court on January 26, 2005.

        The grounds upon which a writ of habeas corpus may be issued are very narrow. McLaney
v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). A writ of habeas corpus is available only when it appears
from the face of the judgment or record that either the convicting court was without jurisdiction to
convict or sentence the petitioner, or the petitioner’s sentence has expired. Archer v. State, 851
S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In other words,
habeas corpus relief may only be sought when the judgment is void, not merely voidable. Taylor v.
State, 995 S.W.2d 78, 83 (Tenn. 1999). 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). A trial court may summarily dismiss a petition for writ
of habeas corpus 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 addressed therein are void. See
Passarella v. State, 891 S.W.2d 619 (Tenn. Crim. App. 1994).

        The Petitioner, relying on Blakely, Apprendi, the sixth and fourteenth amendments of the
United States Constitution, and the Tennessee Constitution, claims that the trial court did not have
the authority to impose a sentence above the statutory minimum of thirty-five years because it applied
enhancement factors that were not found by a jury or admitted by the Petitioner, rendering his
sentences illegal.

         These allegations, even if true, do not provide the Petitioner with a valid ground for habeas
corpus relief. Even if there was a violation of the Petitioner’s constitutional rights at the time of
conviction and sentencing, such violation would render the judgment voidable, and not void, unless
the face of the record establishes that the trial court did not have jurisdiction to convict or sentence
the Petitioner. See Earl David Crawford v. State, No. M2004-02440-CCA-R3-HC, 2005 WL 354106,
at *1 (Tenn. Crim. App., at Nashville, Feb.15, 2005). Additionally, the Tennessee Supreme Court
recently held, in State v. Gomez and Londono, No. M2002-01209-SC-R11-CD (Tenn., April 15,
2005), in context of the 1989 sentencing act, that Tennessee’s sentencing scheme is discretionary and
non-mandatory, and, as such, it does not violate the Sixth amendment right to a trial by jury. Id. at
__. Even assuming, however, that the Court’s holding in Gomez did not apply to the 1982 sentencing
act, this Court has previously held, with regard to post-conviction proceedings, that Blakely does not
apply retroactively to cases on collateral appeal. See Donald Branch v. State, No. W2003-03042-
CCA-R3-PC, 2004 WL 2996894, at *10 (Tenn. Crim. App., at Jackson, Dec. 21, 2004); Carl Johnson
v. State, No. W2003-02760-CCA-R3-PC, 2005 WL 181699, at *4 (Tenn. Crim. App., at Jackson, Jan.
25, 2005).




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        The Petitioner has failed to establish by a preponderance of the evidence that his convictions
are void or his term of imprisonment has expired. Accordingly, 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.


                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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