        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 01, 2014

               KRISTI KIMBRO v. BRENDA JONES, WARDEN

              Direct Appeal from the Criminal Court for Shelby County
                        No. P38908     Glenn Wright, Judge




                No. W2013-02323-CCA-R3-HC - Filed April 16, 2014


The petitioner, Kristi Kimbro, pled guilty to second degree murder and was sentenced to
thirty-seven years in the Tennessee Department of Correction. Subsequently, she filed a
petition for writ of habeas corpus, alleging that her sentence was void. The habeas corpus
court denied the petition, and the petitioner now appeals. Upon review, we affirm the
judgment of the habeas corpus court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which JERRY L. S MITH and
D. K ELLY T HOMAS, J R., JJ., joined.

Kristi Kimbro, Memphis, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; and
Amy P. Weirich, District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       The petitioner was originally indicted for first degree premeditated murder, felony
murder, and robbery. Kristi Kimbro v. State, No. M2006-00554-CCA-R3-PC, 2007 WL
1836843, at *1 (Tenn. Crim. App. at Nashville, June 27, 2007). She pled guilty to second
degree murder, a lesser-included offense of first degree premeditated murder, in exchange
for the dismissal of the remaining charges. Id. The plea agreement provided that the
petitioner would receive a Range II sentence of thirty-seven years. Id. The judgment of
conviction reflected that the petitioner was a violent offender who was required to serve one
hundred percent of her sentence in confinement.

        Thereafter, the petitioner filed a petition for post-conviction relief, alleging that her
trial counsel was ineffective and that her guilty plea was not knowingly and voluntarily
entered. The post-conviction court denied the petition, and, on appeal, this court affirmed
the denial. Id.

        Subsequently, on June 20, 2013, the petitioner filed a petition for habeas corpus relief.
She alleged that she was a Range I, standard offender who was convicted of a Class A
felony; that she was therefore subject to a sentence between fifteen and twenty-five years;
that her thirty-seven-year sentence was outside the limits established for a Range I offender;
and that her sentence was thereby illegal and void. See Tenn. Code Ann. §§ 39-13-210(c);
40-35-112(a)(1). The habeas corpus court summarily denied the petition, finding that “the
allegations, as laid out in the petition, do not demonstrate sufficient grounds for relief under
T.C.A. § 29-21-101, or under any applicable case law.” On appeal, the petitioner challenges
this ruling.

                                         II. Analysis

        Initially, we note that the determination of whether to grant habeas corpus relief is a
question of law. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we will
review the trial court’s findings de novo without a presumption of correctness. Id. Moreover,
it is the petitioner’s burden to demonstrate, by a preponderance of the evidence, “that the
sentence is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000).

        Article I, section 15 of the Tennessee Constitution guarantees an accused the right to
seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). However,
“[s]uch relief is available only when it appears from the face of the judgment or the record
of the proceedings that a trial court was without jurisdiction to sentence a defendant or that
a defendant’s sentence of imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d
at 322; see also Tenn. Code Ann. § 29-21-101. In other words, habeas corpus relief may be
sought only when the judgment is void, not merely voidable. Taylor, 995 S.W.2d at 83. “A
void judgment ‘is one in which the judgment is facially invalid because the court lacked
jurisdiction or authority to render the judgment or because the defendant’s sentence has
expired.’ We have recognized that a sentence imposed in direct contravention of a statute,
for example, is void and illegal.” Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000)
(quoting Taylor, 995 S.W.2d at 83).

       The petitioner asserts that the trial court did not have jurisdiction to impose a sentence

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outside the fifteen to twenty-five-year range established for Range I offenders. However, our
supreme court has held that “a plea-bargained sentence may legally exceed the maximum
available in the offender Range so long as the sentence does not exceed the maximum
punishment authorized for the plea offense.” Hoover v. State, 215 S.W.3d 776, 779 (Tenn.
2007). Moreover, offender classifications “are non-jurisdictional and legitimate bargaining
tools in plea negotiations under the Criminal Sentencing Reform Act of 1989.” Bland v.
Dukes, 97 S.W.3d 133, 134 (Tenn. Crim. App. 2002). Accordingly, even though the
petitioner qualified as a Range I offender, the trial court could sentence the petitioner as a
Range II, multiple offender pursuant to a plea agreement as long as the plea was knowing
and voluntary. See Hicks v. State, 945 S.W.2d 706, 709 (Tenn. 1997). The thirty-seven-year
sentence for second degree murder the petitioner agreed to and ultimately received did not
exceed the maximum punishment statutorily authorized for that offense; therefore, the
sentence is not illegal. See Tenn. Code Ann. § 40-35-111(b)(1) (providing that the sentence
range for a Class A felony is no less than fifteen years and no more than sixty years). We
conclude that the habeas corpus court did not err by summarily denying the petition for writ
of habeas corpus.

                                      III. Conclusion

      In sum, we conclude that the petitioner was not entitled to habeas corpus relief. The
judgment of the habeas corpus court is affirmed.




                                                   _________________________________
                                                        NORMA McGEE OGLE, JUDGE




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