        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 13, 2004

       CHARLES GODSBY, JR. v. RICKEY BELL, and the STATE OF
                          TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                              No. 3434   Steve Dozier, Judge



                 No. M2003-03088-CCA-R3-HC - Filed November 24, 2004


The petitioner appeals the dismissal of his petition for writ of habeas corpus, in which he
contends that: (1) the State cannot maintain convictions on both murder and robbery when the
murder was committed in the act of robbery; (2) the court lacked jurisdiction to sentence him
because he did not plead to the charge of attempted second degree murder; and (3) the court
erred in dismissing his petition without first appointing him counsel. After careful review, we
affirm the dismissal of the petition.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which GARY R. WADE, P.J.,
and DAVID H. WELLES, J., joined.

Charles Godsby, Jr., Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Pamela S. Anderson, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                          OPINION

                                Facts and Procedural History

       In 1994, the petitioner, Charles Godsby, Jr., was convicted of first degree murder,
especially aggravated robbery, and attempted second degree murder. He was sentenced to life
imprisonment on the first degree murder charge, and fifteen years on the especially aggravated
robbery charge, consecutive with the life sentence. The defendant was also sentenced to twelve
years on the attempted second degree murder charge, concurrent to the sentence for especially
aggravated robbery. In October 2003, the petitioner filed a petition for writ of habeas corpus,
which was summarily denied by the trial court for failure to state an appropriate ground for
habeas relief. The defendant now appeals, presenting three issues for our review. First, the
petitioner argues, pursuant to the “same transaction rule,” that he should not have been convicted
of both first degree murder and robbery because the murder was committed in the act of robbery.
Next, he contends the trial court was without jurisdiction to sentence him because he did not
plead to the attempted second degree murder charge. Finally, the petitioner avers that the court
erred in dismissing his habeas petition without first appointing him counsel.

         The State avers on appeal that the issues presented by the petitioner are not cognizable in
a petition for habeas corpus.

                                              Analysis

        The grounds upon which habeas corpus relief can be sought are decidedly narrow; relief
is only available when a conviction is void because the convicting court was without jurisdiction
or authority to sentence a defendant or when a defendant’s sentence has expired and the
defendant is being illegally restrained. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).
Further, a sentence in direct contravention of a statute is illegal and void. Stephenson v. Carlton,
28 S.W.3d 910, 911 (Tenn. 2000) (citing State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)).
Finally, 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 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, 851 S.W.2d at 164 (quoting State v. Galloway, 45 Tenn.
(5 Cold.) 326, 336-37 (1868)).

        The petitioner first contends that the State cannot maintain convictions for both first
degree murder and robbery when the murder was committed in the act of robbery. He relies
wholly on Acres v. State, 484 S.W.2d 534 (Tenn. 1972), a case whose holding has been severely
limited by our supreme court. See State v. Black, 524 S.W.2d 913 (Tenn. 1975). However, it is
not necessary to reach the merits of this argument because it is beyond the face of the record and
is therefore not an appropriate subject for habeas relief. Moreover, by entering a plea of guilty,
the petitioner admitted all facts and elements necessary to sustain the convictions and waived all
other non-jurisdictional defects or constitutional irregularities that might be present therein.
State v. McKinney, 74 S.W.3d 291, 306 (Tenn. 2002). Therefore, we find no error on this
ground.

        Next, the petitioner avers that the sentencing court was without jurisdiction to sentence
him because he did not plead to the charge of attempted second degree murder. However, the
record and, in particular, the judgment on the pertinent charge reveal otherwise. The face of the
judgment is clearly marked to indicate that the petitioner pled guilty to second degree murder
and that he received a twelve-year sentence, concurrent with the fifteen-year sentence for
especially aggravated robbery. Moreover, the judgment was subscribed by the petitioner’s
counsel and dated December 13, 1994, the date all judgments in the matter were signed and
filed. Therefore, contrary to the petitioner’s argument, nothing appears in the record indicating
that the court lacked jurisdiction to issue the sentences in the present case; rather, the judgment
indicates that a proper guilty plea was entered by the petitioner and acknowledged by his

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counsel. Thus, we find no error in the trial court’s denial of habeas relief on this ground.

        Finally, the petitioner contends that the trial court erred by summarily dismissing his
petition without appointment of counsel. While there is no federal or state constitutional right to
appointment of counsel in a habeas corpus proceedings, the trial court has a duty to appoint
counsel “if necessary.” See John C. Tomlinson v. State, No. M2001-02152-CCA-R3-CO, 2002
Tenn. Crim. App. LEXIS 549 (Tenn. Crim. App., Nashville, June 28, 2002) (citing Coleman v.
Thompson, 501 U.S. 722, 755, 111 S. Ct. 2546 (1991); Tenn. Code Ann. § 40-14-204 (2004)). If
the petitioner’s judgments are facially valid and not void, the trial court may properly dismiss a
petition for writ of habeas corpus without appointing counsel and without holding an evidentiary
hearing. State v. Lavondas Cordell Nelson, No. M2003-01525-CCA-R3-CO, 2003 Tenn. Crim.
App. LEXIS 1101, at *6 (Tenn. Crim. App., Nashville, Dec. 30, 2003); see also State ex rel.
Edmondson v. Henderson, 421 S.W.2d 635, 636-37 (Tenn. 1967), which provides that a habeas
corpus petition may be dismissed without a hearing and without the appointment of counsel if
the petition fails to alleges facts that would justify relief. In the instant matter, the trial court’s
actions were justified because the petitioner did not allege any facts that justified habeas corpus
relief. Therefore, we affirm the trial court’s denial of habeas relief.

                                                 Conclusion

       Based on the foregoing and the record as a whole, the trial court’s dismissal of the
habeas petition is affirmed.




                                                       ____________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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