        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs July 21, 2010

              JOHNNY B. EWING, II v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                    No. 2003-A-431     Cheryl Blackburn, Judge


                 No. M2009-02308-CCA-R3-HC - Filed August 3, 2010


The pro se petitioner, Johnny B. Ewing, II, appeals the Davidson County Criminal Court’s
denial of his petition for writ of habeas corpus. Following our review, we affirm the denial
of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and R OBERT
W. W EDEMEYER, JJ., joined.

Johnny B. Ewing, II, Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Bret T. Gunn, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

        On December 8, 2003, the petitioner, who had been indicted for the December 15,
2002, first degree premeditated murder of Derrick Johnson, pled guilty in the Davidson
County Criminal Court to second degree murder in exchange for a Range II sentence of forty
years at 100% as a violent offender. He subsequently filed a petition for post-conviction
relief in which he alleged, among other things, that his guilty plea was unknowing and
involuntary due to counsel’s failure to adequately explain that he was pleading outside his
range. Johnny B. Ewing v. State, No. M2005-01222-CCA-R3-PC, 2006 WL 1446921, at *7
(Tenn. Crim. App. May 22, 2006), perm. to appeal denied (Tenn. Sept. 25, 2006). This court
affirmed the post-conviction court’s denial of the petition, and our supreme court denied his
application for permission to appeal. See id. at *1.

       On June 16, 2009, the petitioner filed a petition for writ of habeas corpus in which he
alleged that his sentence was illegal because the trial court “lacked authority to enter a
judgment sentencing the Petitioner to serve a Range II sentence with a violent offender 100%
release eligibility percentage.”

        On September 29, 2009, the habeas corpus court entered a detailed written order in
which it noted that the issue of the petitioner’s release eligibility was thoroughly addressed
at the post-conviction evidentiary hearing and in the order of the court denying post-
conviction relief, where the court explained that the petitioner’s Range II sentence at 100%
was lawful because the petitioner elected to plead outside his range pursuant to Hicks v.
State, 945 S.W.2d 706, 709 (Tenn. 1997). Accordingly, the court denied the petition on the
basis that the petitioner had failed to show either a void judgment or an expired sentence.
This appeal followed.

                                        ANALYSIS

        Whether the petitioner is entitled to habeas corpus relief is a question of law.
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007); Hart v. State, 21 S.W.3d 901, 903
(Tenn. 2000). As such, our review is de novo with no presumption of correctness given to
the trial court’s findings and conclusions. Id.

        It is well-established in Tennessee that the remedy provided by a writ of habeas corpus
is limited in scope and may only be invoked where the judgment is void or the petitioner’s
term of imprisonment has expired. Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007);
State v. Ritchie, 20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport, 980 S.W.2d 407, 409
(Tenn. Crim. App. 1998). A void, as opposed to a voidable, judgment is “one that is facially
invalid because the court did not have the statutory authority to render such judgment.”
Summers, 212 S.W.3d at 256 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)).
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).

        The petitioner asserts that the trial court lacked the authority to sentence him as a
Range II offender to forty years at 100% release eligibility, arguing that he cannot be both
a Range II offender with a release eligibility of 35% and a violent offender with a release
eligibility of 100%. The petitioner’s argument ignores the fact that a second degree murder
that was committed on or after July 1, 1995, is one of the offenses for which a defendant
“shall serve one hundred percent (100%) of the sentence imposed[.]” Tenn. Code Ann. § 40-
35-501(i)(1)(2)(B) (2006). Our supreme court has repeatedly held that “offender

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classification and release eligibility are non-jurisdictional and may be used as bargaining
tools by the State and the defense in plea negotiations.” Hoover v. State, 215 S.W.3d 776,
780 (Tenn. 2007). In accordance with the terms of his negotiated plea bargain, the petitioner
pled guilty to second degree murder in exchange for a Range II sentence of forty years,
which, by statute, has to be served at 100% release eligibility – a fact that was reflected in
the petitioner’s plea agreement and explained to him by the trial judge at the guilty plea
hearing. We conclude, therefore, that the habeas court properly denied the petition on the
basis that the petitioner has not shown that he is entitled to habeas corpus relief.

                                      CONCLUSION

      Based on the foregoing authorities and reasoning, we affirm the judgment of the
habeas court denying the petition for writ of habeas corpus.


                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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