         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                     Remanded by Supreme Court February 26, 2007

               DICKEY L. COTTON v. DAVID MILLS, WARDEN
                         (STATE OF TENNESSEE)

                Direct Appeal from the Circuit Court for Lauderdale County
                         No. 5904 Joseph H. Walker, III, Judge



                     No. W2007-00435-CCA-RM-HC - Filed May 17, 2007


This case is before us after remand by the Tennessee Supreme Court for reconsideration in light of
its holdings in Summers v. State, 212 S.W.3d 251 (Tenn. 2007); Smith v. Lewis, 202 S.W.3d 124
(Tenn. 2006); and Shaun Hoover v. State, 215 S.W.3rd 776 (Tenn. Jan. 23, 2007). The petitioner,
Dickey L. Cotton, appeals the circuit court’s summary dismissal of his pro se petition for writ of
habeas corpus. Upon reconsideration, we affirm the court’s dismissal of the habeas corpus petition.

  On Remand from Tennessee Supreme Court; Judgments of the Circuit Court Affirmed

J.C. MCLIN , J., delivered the opinion of the court, in which David H. Welles and NORMA MCGEE
OGLE, JJ., joined.

Dickey Cotton, Pro se, West Tennessee Security Prison, Henning, Tennessee.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee.

                                     OPINION ON REMAND

        According to the petitioner’s judgments of conviction, the petitioner entered guilty pleas to
two counts of rape pursuant to a plea agreement and received concurrent sentences of eight years for
both offenses. The negotiated plea agreement indicates the petitioner’s status as a Range I offender,
but the plea agreement is silent as to the petitioner’s release eligibility status. Significantly, the
petitioner’s judgments do not designate an offender or a release eligibility status, and the transcript
of the petitioner’s plea hearing was not included in the record.

        On September 16, 2004, the petitioner filed a pro se petition for writ of habeas corpus. In
the petition, the petitioner alleged that the sentences he received pursuant to the negotiated plea
agreement were illegal and void because they contravened Tennessee Code Annotated section 39-13-
523. The petitioner also alleged that the Tennessee Department of Correction (TDOC), upon
receiving his judgment orders, lacked the authority to alter his release eligibility status from a
standard offender to a multiple rapist.1 As the petitioner awkwardly explained in his petition, when
TDOC changed his status from Range I, standard offender to multiple rapist, he stopped receiving
sentencing credits and was informed that he would have to serve 100% of his sentence as a multiple
rapist. In response, he petitioned TDOC to reinstate his status and restore his sentencing credits.
TDOC denied the petitioner’s request finding that the petitioner was correctly classified as a multiple
rapist because he had two rape convictions.

         In a written order, the circuit court denied relief, stating:

                Petitioner pled guilty to rape in June 2001 in 99-01989 with an 8 year
         sentence concurrent to 99-01988 and consecutive to 00-10258.

                Petitioner alleges his sentence is outside the status requirements. Rape is a
         B felony and an 8 year sentence is within the range of punishment. In fact it is the
         minimum sentence.

                He complains about being classified by TOMIS as a multiple rapist. He was
         informed by letter attached to his petition that multiple rapist means a person
         convicted to 2 or more times of violating the rape statute. Petitioner pled guilty to
         two offenses of rape.

                He alleges he is not receiving proper sentence credits. This is not a proper
         ground for habeas corpus. . . .

                   ....

                 The court finds that petitioner’s sentence has not expired and the court had
         jurisdiction to sentence the defendant to such sentence. Habeas corpus relief is not
         appropriate.

                 Procedural due process violations and other alleged violations of
         constitutional rights are addressed in post conviction, not habeas corpus,
         proceedings. Luttrell v. State, 644 S.W.2d 408.

                 If the petition is treated as one for post-conviction relief, this court has no
         jurisdiction[.] T.C.A. 40-30-204 and 202. . . .

         1
            As a Range I, standard offender, an individual may be eligible for release after service of 30% of the sentence.
See Tenn. Code Ann. § 40-35-501(c). However, Tennessee Code Annotated section 39-13-523 states that a “multiple
rapist” is defined as a person convicted two (2) or more times of violating the provisions of § 39-13-503 (rape).
“Notwithstanding any other provision of law to the contrary, a multiple rapist . . . shall be required to serve the entire
sentence imposed by the court undiminished by any sentence reduction credits such person may be eligible for or earn.”



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         In the instant appeal, the petitioner challenges the circuit court’s summary dismissal of his
petition, restating the following allegations: (1) petitioner’s sentences are illegal and void because
they contravene Tennessee Code Annotated section 39-13-523, and (2) TDOC lacked the authority
to alter his release eligibility status.

         Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief. Tennessee Code Annotated sections 29-21-101 through 29-21-130 codify the applicable
procedures for seeking a writ. However, the grounds upon which a writ of habeas corpus may be
issued are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A writ of habeas corpus
is available only when it appears on the face of the judgment or the record of the proceedings upon
which the judgment was rendered that a court was without jurisdiction to convict or sentence the
defendant or that the defendant is still imprisoned despite the expiration of his sentence. Archer v.
State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). The
purpose of a habeas corpus petition is to contest void and not merely voidable judgments. Archer,
851 S.W.2d at 163. A void judgment is a facially invalid judgment, clearly showing that a court did
not have statutory authority to render such judgment; whereas, a voidable judgment is facially valid,
requiring proof beyond the face of the record or judgment to establish its invalidity. See Taylor, 995
S.W.2d at 83. The burden is on the petitioner to establish, 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). Moreover, it is permissible for a court to summarily dismiss a petition for habeas corpus
relief, without the appointment of counsel and without an evidentiary hearing, if the petitioner does
not state a cognizable claim. See Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004).

        Of significance to the resolution of this case are the recent decisions of our supreme court
in Smith v. Lewis, 202 S.W.3d 124; Shaun Hoover v. State, 215 S.W.3rd 776; and Summers v. State,
212 S.W.3d 251. In Smith v. Lewis, our supreme court held that the petitioner’s sentence for rape
of a child was illegal because the judgment order clearly indicated that the petitioner would receive
early release eligibility in contravention of Tennessee Code Annotated sections 40-35-501 and 39-
13-523, which require 100% confinement for the offense. Smith, 202 S.W.3d at 127-28.
Significantly, the supreme court found that the “judgment in both its original and amended forms .
. . contains on its face an illegal sentence.” Id. at 128 (emphasis added). However, the supreme
court found:

       [T]he record in this case does not demonstrate on its face that the illegal provision
       of early release eligibility was a bargained-for element of Smith's plea. Smith's plea
       of guilt and the resulting conviction are therefore not based on an illegal sentence
       and, consequently, are not infected with the illegality. Rather, the record in this case
       demonstrates that the trial court made an error sua sponte and independent of the plea
       bargain. Under these circumstances, we hold the illegal sentence to be null and void.
       Smith's conviction, however, remains intact.




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Id. at 130. Accordingly, the supreme court granted habeas relief only to the extent of vacating the
illegal sentence but not to the extent of vacating the underlying conviction. Id.

         In Shaun Hoover v. State, the petitioner negotiated a plea agreement with the state. Hoover,
2007 WL 160954, at *1. In exchange for pleading guilty to lesser-included offenses of second
degree murder and attempt to commit especially aggravated robbery, the petitioner was classified
as a Range I offender and received “concurrent sentences of thirty-five years with a release eligibility
of 100 percent for second degree murder and twelve years with a release eligibility of thirty percent
for attempt to commit especially aggravated robbery.” Id. After review, our supreme court held that
the petitioner’s thirty-five-year sentence was not an illegal sentence even though it fell outside the
parameters of the fifteen-to-twenty-five-year, Range I offender range because the sentence fell within
the maximum punishment range of sixty years authorized for Class A felony offenses such as second
degree murder. Id. at *2. Our supreme court reiterated that offender classification and release
eligibility are non-jurisdictional and legitimate bargaining tools in plea negotiations under the
Criminal Sentencing Reform Act of 1989. Id. at *4. Our supreme court also emphasized that “a
knowing and voluntary guilty plea waives any irregularity as to offender classification or release
eligibility.” Id. at *3.

        In Summers v. State, the petitioner complained, among other things, that his concurrent
sentence for misdemeanor escape was illegal because it directly contravened a statute, which
required consecutive sentencing in such circumstances. Summers, 212 S.W.3d at 255. Upon
review, our supreme court concluded that the petitioner’s judgment on his escape conviction and the
underlying record were “silent as to whether [the petitioner] committed the escape while being held
for the other charges.” Id. at 262. Significantly, our supreme court reiterated that the procedures
governing habeas corpus petitions are mandatory and must be scrupulously followed. Id. at 259.
Thereafter, our supreme court explained:

       In the case of an illegal sentence claim based on facts not apparent from the face of
       the judgment, an adequate record for summary review must include pertinent
       documents to support those factual assertions. When such documents from the record
       of the underlying proceedings are not attached to the habeas corpus petition, a trial
       court may properly choose to dismiss the petition without the appointment of counsel
       and without a hearing.

Id. at 261. Our supreme court noted there is a conclusive presumption that the judgment is valid in
all respects; and therefore, the burden of showing the illegality of the judgment is cast upon the
petitioner. Id. at 260. Furthermore, the court noted that such matters complained of in the habeas
corpus petition “are foreclosed by that judgment, in the absence of anything upon the face of the
record to impeach the judgment.” Id. (citations omitted). As part of its analysis, the supreme court
cited its decision in Hogan v. Mills, 168 S.W.3d 753 (Tenn. 2005), wherein the court determined that
summary dismissal of the petitioner’s petition was appropriate, stating:




                                                  -4-
        [T]he judgments for Hogan’s 1985 convictions are silent as to whether the sentences
        are to be served concurrently or consecutively to his prior sentence. Moreover, the
        judgments themselves do not refer to Hogan's prior conviction or his parole status.
        The record before this Court does not indicate that the trial court was even aware of
        Hogan's parole status in sentencing him for the 1985 convictions. Hogan has failed
        to establish that the trial court imposed sentences concurrent with Hogan's prior
        felony sentence in contravention of Rule 32(c)(3)(A). Accordingly, because no
        illegality of the sentence is evident on the face of the judgments for Hogan's 1985
        convictions, the judgments are at most voidable and not void.

Id. at 262 (quoting Hogan, 168 S.W.3d at 757) (emphasis added). Ultimately, our supreme court
determined that the petitioner was not entitled to habeas corpus relief because “no illegality of the
sentence is evident on the face of the judgment ordering a concurrent sentence for the escape
conviction.” Id.

        Upon our review of the available record, we note that the judgments are silent as to the
petitioner's offender and release eligibility status. We also note that the petitioner's plea agreements
are silent as to the petitioner's release eligibility status. It is the petitioner's burden to prove his claim
of illegal sentence. The mere fact that the plea agreement designates the petitioner as a "Standard
Offender, Range I" does not prove the petitioner received early release eligibility in contravention
of Tennessee Code Annotated section 39-13-523. Indeed, the petitioner's TOMIS2 printout, which
was included in the record, clearly shows that the petitioner is serving 100% of his sentences in
compliance with section 39-13-523. Therefore, in accordance with the aforementioned decisions,
we conclude that the circuit court's summary dismissal of the petitioner's habeas corpus petition was
proper because no illegality is evident on the face of the judgments. Furthermore, we find no error
in TDOC’s recognition that, pursuant to section 39-13-523, the petitioner is not eligible for early
release having been convicted of multiple rapes.

       For the reasons stated herein, we conclude that the circuit court did not err by summarily
dismissing the habeas corpus petition. The judgment is affirmed.




                                                            ___________________________________
                                                           J.C. McLIN, JUDGE




        2
            Tennessee Offender Management Information System.

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