         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs January 25, 2005

               CARL ED LEMING v. VIRGINIA LEWIS, WARDEN

                   Direct Appeal from the Circuit Court for Bledsoe County
                            No. 33-2003    J. Curtis Smith, Judge



                     No. E2004-01932-CCA-R3-HC - Filed April 21, 2005


The petitioner, Carl Ed Leming, pled guilty in the Hamilton County Circuit Court to two counts of
aggravated rape. He received consecutive sentences of forty years incarceration in the Tennessee
Department of Correction, with release eligibility after serving thirty percent of his sentence.
Subsequently, the petitioner filed in the Bledsoe County Circuit Court a petition for a writ of habeas
corpus, alleging that his sentence was illegal because he received statutorily impermissible release
eligibility. The court dismissed the petitioner’s petition for a writ of habeas corpus, and the
petitioner now appeals. Upon our review of the record and the parties’ briefs, we affirm the
judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JAMES CURWOOD WITT , JR., J., joined.

Carl Ed Leming, Pikeville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
James Michael Taylor, District Attorney General; and James William Pope, III, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background

        The petitioner is no stranger to this court. He has previously filed two petitions for writs of
habeas corpus, which petitions were denied and the denials affirmed by this court. See Carl Ed
Leming v. James A. Bowlen, Warden, No. E2002-02102-CCA-R3-PC, slip op. at 2 (Tenn. Crim.
App. at Knoxville, Apr. 1, 2003) (order); Carl Ed Leming v. State, No. 03C01-9603-CC-00119, 1997
WL 198782, at *2 (Tenn. Crim. App. at Knoxville, Apr. 22, 1997). This court previously
summarized the history of the petitioner’s convictions:
                      The petitioner is in the custody of the Department of Correction
                      serving an effective sentence of forty-three years for his 1983
                      convictions of two counts of aggravated rape and one count of grand
                      larceny. The convictions were based upon the petitioner entering
                      guilty pleas. The petitioner was sentenced on December 13, 1983, as
                      a Range I, standard offender to concurrent sentences of forty years for
                      each aggravated rape conviction to be served consecutively to a
                      three-year sentence for the grand larceny conviction [with release
                      eligibility after service of thirty percent of his sentence].

Leming, No. 03C01-9603-CC-00119, 1997 WL 198782, at *1.

        Subsequently, the petitioner filed his instant petition for a writ of habeas corpus. Therein,
the petitioner contends that because he was sentenced for two aggravated rape convictions, which,
at the time of his pleas, were Class X felonies, the sentencing court was mandated to impose
sentences with release eligibility after service of one hundred percent of those sentences.1 Thus, the
appellant argues that the sentencing court was without jurisdiction to grant him, due to his status as
a Range I standard offender, release eligibility after service of thirty percent of his aggravated rape
sentences, and, therefore, he contends that his sentences are illegal.

        The trial court dismissed the instant petition, finding that this court previously determined
that “the petitioner was sentenced with the appropriate release classification status.” Leming, No.
E2002-02102-CCA-R3-PC, slip op. at 1. Additionally, the trial court found that “the Petitioner’s
sentences are not in direct contravention of the Class X Felony Act, as amended by Public Chapter
400.” The petitioner currently appeals the ruling of the trial court.

                                                        II. Analysis

        Initially, we note that the determination of whether to grant habeas corpus relief is a question
of law. See McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). 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, § 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 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 (2000). In other words, habeas corpus relief may be sought


           1
               In the instant appeal, the petitioner does not raise any issues relating to his conviction or sentence for grand
larceny.

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only when the judgment is void, not merely voidable. See 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) (citations omitted).

        As we noted earlier, the petitioner’s instant complaint is that he was illegally sentenced to
serve thirty percent of his sentences for aggravated rape before becoming eligible for release. In a
prior petition for a writ of habeas corpus, the petitioner complained that his release eligibility should
have been forty percent instead of thirty percent. See Leming, No. E2002-02102-CCA-R3-PC, slip
op. at 1. That petition was denied. This court affirmed the denial pursuant to Rule 20 of the Rules
of the Court of Criminal Appeals. Id. Specifically, this court explained:

                        In May 2002, the petitioner filed . . . [a] petition for writ of
                habeas corpus alleging that the sentences imposed upon his
                aggravated rape convictions are void because Tennessee Code Ann.
                § 40-28-301 (repealed) mandates that the release classification status
                for a Class X felony is 40%, rather than the 30% under which he was
                sentenced. As the state notes, Section 40-28-301 was superceded by
                Tenn. Code Ann. § 40-35-112 of the Criminal Sentencing Reform
                Act of 1982. Section 40-35-112(a) provided that crimes committed
                on or after July 1, 1982, shall be tried and sentenced under the 1982
                Act. Section 40-35-112(b) further provided, in relevant part, as
                follows:

                       “A crime which occurs on or after July 1, 1982, and is
                otherwise classified as a Class X felony shall be treated in all respects
                under the law as it existed prior to July 1, 1982, except:

                (2) The release classification eligibility date and the manner of
                service in a maximum security institution shall be governed in
                accordance with this chapter. . . .”

                         In turn, Section 40-35-501(c) provided that “[r]elease
                eligibility for each defendant otherwise sentenced from within Range
                I shall occur after service of thirty percent (30%) of the actual
                sentenced imposed.”

Id.
         In affirming the judgment of the trial court, this court noted that “the petitioner was sentenced
with the appropriate release classification status.” Id. The petitioner’s current complaint mirrors his
earlier complaint. Thus, this court has previously addressed the merits of the petitioner’s complaint,
and we concluded that the petitioner does not suffer from an illegal sentence. “Principles of res


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judicata dictate the issue not be relitigated.” See John C. Tomlinson v. State, No. M2001-02152-
CCA-R3-CO, 2002 WL 1400051, at *3 (Tenn. Crim. App. at Nashville, June 28, 2002).
Accordingly, we again conclude that the petitioner’s argument has no merit.

                                        III. Conclusion

       Finding no error, we affirm the judgment of the trial court.


                                                     ___________________________________
                                                     NORMA McGEE OGLE, JUDGE




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