        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs August 22, 2012

           JERRY McGAHA v. TONY HOWERTON, WARDEN, and
                      STATE OF TENNESSEE

                  Appeal from the Criminal Court for Morgan County
                     No. 2012-CR-2      E. Eugene Eblen, Judge


                No. E2012-00569-CCA-R3-HC - Filed October 17, 2012


The petitioner, Jerry McGaha, appeals the Morgan County Criminal Court’s summary
dismissal of his petition for writ of habeas corpus, arguing that the trial court lacked the
jurisdiction to accept his guilty pleas to nine counts of child rape because his plea agreements
did not include the mandatory requirement of community supervision for life. Because the
petitioner has failed to state a cognizable claim for habeas corpus relief, we affirm the
summary dismissal 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 OSEPH M. T IPTON, P.J., and
J EFFREY S. B IVINS, J., joined.

Jerry McGaha, Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Lacy Wilber, Assistant Attorney
General, for the appellee, State of Tennessee.

                                           OPINION

        In 2001, the petitioner pled guilty in the Cocke County Criminal Court to nine counts
of rape of a child, for which the trial court sentenced him to a total effective sentence of fifty
years in the Department of Correction. On direct appeal, this court modified the sentence to
an effective term of forty-six years based on the trial court’s misapplication of an
enhancement factor. See State v. Jerry McGaha, No. E2001-01547-CCA-R3-CD, 2002 WL
499273, at *3 (Tenn. Crim. App. Apr. 3, 2002). The petitioner later filed a delayed appeal
to the supreme court and a petition for post-conviction relief, both of which were denied. See
State v. Jerry McGaha, No. E2009-02553-CCA-R3-PC, 2011 WL 6091789, at *1 (Tenn.
Crim. App. Dec. 7, 2011), perm. app. denied (Tenn. Apr. 11, 2012).

       On June 10, 2011, the petitioner filed a petition for writ of habeas corpus in which he
alleged that his sentences were illegal and void because the trial court lacked the authority
to accept a plea agreement and sentence that did not include the mandatory requirement of
lifetime community supervision. On August 17, 2011, the habeas court entered an order
summarily dismissing the petition. On January 12, 2012, the petitioner filed a second, almost
identical petition for writ of habeas corpus in which he again alleged that the trial court
lacked the authority to accept his guilty pleas because they did not include the lifetime
community supervision requirement. The exhibits the petitioner attached to this petition
included a copy of his plea agreement and a portion of the sentencing hearing transcript,
neither of which mention the community supervision for life aspect of his convictions, and
three of his original judgments of conviction, on each of which is checked the box that states
“Pursuant to 39-13-524, the defendant is sentenced to community supervision for life
following sentence expiration.” On February 13, 2012, the habeas court entered an order
summarily dismissing the petition. On March 13, 2012, the petitioner filed his notice of
appeal.

        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 v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (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).
Furthermore, when “habeas corpus petition fails to establish that a judgment is void, a trial
court may dismiss the petition without a hearing.” Summers, 212 S.W.3d at 260 (citing
Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005)). Whether the petitioner is entitled to
habeas corpus relief is a question of law. Id. at 255; 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.


       At the outset, we note that, although the petitioner filed a timely notice of appeal
following the summary dismissal of his second petition for writ of habeas corpus, there is no
record of his having filed a notice of appeal following the dismissal of his first petition.


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Since the petitions are almost identical, it appears that the petitioner, by filing his second
petition followed by a timely notice of appeal, is attempting to circumvent Rule 4(a) of the
Rules of Appellate Procedure, which provides that “the notice of appeal . . . shall be filed .
. . within 30 days after the date of entry of the judgment appealed from[.]”


        Regardless, we agree with the State that the petitioner’s allegations essentially amount
to a claim that his guilty pleas were unknowing and involuntary, which is not cognizable in
a petition for writ of habeas corpus. See Archer v. State, 851 S.W.2d 157, 163 (Tenn. 1993).1
Accordingly, we conclude that the habeas court’s summary dismissal of the petition was
proper, and we affirm the judgment of the habeas court.




                                                           _________________________________
                                                           ALAN E. GLENN, JUDGE




        1
         In fact, the petitioner’s brief acknowledges that the judgments are legal and that his focus is on the
plea agreement’s failure to include the lifetime supervision requirement.

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