         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs August 15, 2007

            ROGER T. JOHNSON v. WAYNE BRANDON, WARDEN

                  Direct Appeal from the Circuit Court for Hickman County
                          No. 06-5040C     Jeffery S. Bivins, Judge



                                  No. M2007-00182-CCA-R3-HC


The petitioner, Roger T. Johnson, appeals from the trial court’s denial of his petition for habeas
corpus relief from his convictions for first degree murder and second degree murder. Because we
find that the petitioner has failed to allege a cognizable claim for habeas corpus relief, we affirm the
denial of the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN EVERETT
WILLIAMS, JJ., joined.

Roger T. Johnson, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Cameron L. Hyder, Assistant Attorney
General, for the appellee, State of Tennessee.


                                              OPINION

                                               FACTS

        This court set out the relevant factual background in its opinion affirming the dismissal of
the petitioner’s first habeas corpus petition:

                On December 7, 1994, Petitioner entered guilty pleas to one count of first
       degree murder and one count of second degree murder in exchange for a sentence of
       life followed by a thirty year sentence as a Range I offender. The trial court amended
       the judgment on December 8, 1994 to reflect a sentence of twenty-five years and
         eight months on the second degree murder count to be served as a Range II offender.1
         On June 18, 2002, Petitioner filed, pro se, a petition for writ of habeas corpus relief,
         alleging that his plea bargain agreement was breached by the trial court's amendment
         of the judgment. Petitioner alleged that the breach of the plea bargain agreement
         rendered his conviction void.

                By order entered July 18, 2002, the trial court denied Petitioner's application
         for habeas corpus relief. The trial court found that Petitioner had failed to allege
         grounds for relief cognizable in a state habeas corpus action. The court ruled that at
         most, Petitioner's claim of a breached plea agreement would render the convictions
         voidable, rather than void. Petitioner filed a motion to rehear in the trial court, which
         was denied by order dated October 17, 2002.

Roger T. Johnson v. State, No. M2002-02902-CCA-R3-CO, 2004 WL 443971, at *1 (Tenn. Crim.
App. Mar. 5, 2004), perm. to appeal denied (Tenn. June 21, 2004).

        Under the Tennessee Criminal Sentencing Reform Act of 1989 (“the 1989 Act”), the
petitioner was classified as a Range I offender, for whom the statutorily authorized penalty for
second degree murder, a Class A felony, is fifteen to twenty-five years. However, as part of the plea
agreement, the petitioner agreed to plead “out of the range” and accept a thirty-year sentence on the
second degree murder count. Id.

       According to his present petition for habeas corpus relief, the petitioner filed a second habeas
corpus petition in March 2006. The trial court dismissed this second petition, and it appears no
appeal was taken from that dismissal. In July 2006, the petitioner filed his third and present petition
for habeas corpus relief, alleging:

         (1) “The Criminal Court of Davidson County at Nashville, exceeded their jurisdiction
         and authority while entering judgments of convictions against the petitioner. The
         sentence for second degree murder is illegal because . . . the Criminal Sentencing
         Reform Act did not provide for coupling different incarceration and release eligibility
         ranges, . . .”

         (2) “The Criminal Court of Davidson County . . . yet, [once again] on December 8,
         1994, exceeded their authority by amending the judgments it had previously entered.
         . . . The amended judgment reflects an enhanced sentence from Range I to Range II,
         which is not the judgment of convictions the petitioner agreed to waive his
         constitutional rights to.”


         1
            The record does not reflect the reason for this change. The amendment did not modify the petitioner’s release
eligibility in any material way. The original judgment of thirty years as a Range I offender with 30% release eligibility
would have resulted in release eligibility after nine years. The amended judgment of twenty-five years, eight months as
a Range II offender with 35% release eligibility results in release eligibility after 8.98 years.

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        (3) “[T]he petitioner[’s] pleas of guilt are even more tainted [now] than ever before,
        and . . . a trial court has no authority to take a previously excepted [sic] plea to a
        specific agreement, [secretly amend it], applying whatever punishment they want to
        impose without filing a notice, without a sentencing hearing, without giving the
        defendant the opportunity or option to withdraw his pleas, and without testing for
        voluntariness. The petitioner[’s] pleas of guilt can not [sic] be knowingly and
        voluntarily entered to judgments of convictions that has ‘no waiver.’”

        (4) “[T]he amended judgment . . . is an illegal sentence. 25.8 years is not available
        under the 1989 Act. T.C.A. § 40-35-211 provides for years or months, not years and
        months. Therefore, 25.8 years for a felony is an illegal sentence.”

The State filed a motion to dismiss for failure to present a cognizable claim for habeas corpus relief,
which the trial court granted. This appeal followed.

                                                  ANALYSIS

        As we have set out, in his first petition for habeas corpus relief, the petitioner alleged that the
trial court’s amendment of his judgment for second degree murder amounted to a breach of his plea
agreement, rendering his conviction void. Roger T. Johnson, 2004 WL 443971, at *1. He now
challenges the same conviction on a somewhat different basis, arguing that his plea agreement was
never enforceable because it violated Tennessee Code Annotated sections 40-35-105 and 40-35-112,
parts of the 1989 Act dealing with offender classification and sentencing ranges,2 and that, as we
understand, the court could not amend the first judgment without a hearing. He contends that the
1989 Act “did not provide for coupling different incarceration and release eligibility ranges.” On
appeal, the petitioner also claims that the trial court erred by not allowing him sufficient time to
oppose the State’s motion to dismiss his petition and violated his right to due process by allowing
the State to file a response to his original petition after it had been amended. He further asserts, on
appeal, that it was improper for the trial court to dismiss his petition without appointing counsel and
conducting an evidentiary hearing. The State counters that the petitioner has not presented a
cognizable claim for habeas corpus relief, so summary dismissal of the petition was appropriate.

        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. State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000); State v. Davenport,
980 S.W.2d 407, 409 (Tenn. Crim. App. 1998). “A judgment is void only when it appears upon the
face of the judgment or the record of the proceedings upon which the judgment is rendered that a
convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant’s
sentence of imprisonment or other restraint has expired.” Hoover v. State, 215 S.W.3d 776, 778
(Tenn. 2007) (citation omitted). The judgment of a court of general jurisdiction is conclusive and


        2
          Section 40-35-105 defines the term “standard offender” as used in the Tennessee Criminal Sentencing Reform
Act of 1989, and section 40-35-112 establishes the sentencing ranges for different offenders and felony classes.

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presumed to be valid, and such a judgment can only be impeached if the record affirmatively shows
that the rendering court was without personal or subject matter jurisdiction. Archer v. State, 851
S.W.2d 157, 162 (Tenn. 1993). To obtain habeas corpus relief, the petitioner must show by a
preponderance of the evidence that his sentence is void and not merely voidable. See Davenport,
980 S.W.2d at 409. Consequently, a petitioner cannot collaterally attack a facially valid judgment
of the trial court in a petition for habeas corpus relief. Archer, 851 S.W.2d at 162.

        The petitioner now contends, as we have set out, that his sentence is illegal because it is in
direct contravention of Tennessee Code Annotated sections 40-35-105(a)(1) and 40-35-112(a)(1)
(2006). “A sentence imposed in direct contravention of a statute is void and illegal and subject to
attack in a habeas corpus proceeding.” Hoover, 215 S.W.3d at 778 (citations omitted). First, the
petitioner asserts that his agreement to plead “out of the range” was binding upon the trial court. He
argues that he “agreed to plea [sic] guilty to Life plus 30 years at 30% Range I with other charges
being dismissed which is a Tenn. R. Crim. P. 11(E)(1)(C) type of agreement . . . causing it to be
binding upon the court.” Simultaneously, he contends that the trial court had no jurisdiction to
impose a sentence outside of the range prescribed by the 1989 Act.

         The petitioner’s argument in this regard is inherently contradictory and ignores decisions of
the United States and Tennessee Supreme Courts. As an initial matter, plea agreements are not
binding on trial courts, and we can discern no statement to the contrary in Tennessee Rule of
Criminal Procedure 11. See also Santobello v. New York, 404 U.S. 257, 262 (1971); State v.
Williams, 851 S.W.2d 828, 830 (Tenn. Crim. App. 1992). Moreover, the petitioner has waived this
argument by failing to raise it in his amended petition. See Tenn. R. App. P. 36(a); State v.
Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996) (“Ordinarily, issues raised for the first time
on appeal are waived.”). Similarly, there is no merit to the petitioner’s claim that the trial court
lacked jurisdiction to impose the bargained-for sentence. Our supreme court held in Hoover that an
offender who pleads guilty may be sentenced to a term outside the range, as long as the sentence
imposed is within the overall punishment range for the particular class of offense. Hoover, 215
S.W.3d at 779. The facts of Hoover are strikingly similar to the case at bar. The defendant in
Hoover pled guilty to second degree murder and accepted as part of the plea agreement a
classification as a Range I, standard offender and a sentence of thirty-five years with release
eligibility after 100%. Id. at 777. He subsequently attacked his conviction with a petition for habeas
corpus relief, alleging that his sentence was illegal because it exceeded the twenty-five-year
maximum permitted under the 1989 Act for Range I offenders convicted of Class A felonies. Id. at
777-78. The Tennessee Supreme Court 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.” Id. at 780.

       Hoover controls our analysis of this issue. The petitioner’s sentence is not void because it
exceeded the statutory maximum for his offender classification. His sentence was below the sixty-
year maximum punishment authorized for Class A felonies, so it is not facially illegal. See Tenn.
Code Ann. § 40-35-112(c) (2006). Accordingly, we conclude that the petitioner does not state a
cognizable ground for habeas corpus relief on this issue.


                                                 -4-
         The petitioner next argues that he is entitled to relief because the trial court allowed the State
to file a response to his original habeas corpus petition after he had filed an amended petition. The
petitioner alleges that such conduct violates his constitutional right to due process but cites no
authority in support of this proposition; thus, he has waived this argument. See Tenn. Ct. Crim. App.
R. 10(b) (“Issues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived in this court.”). Furthermore, even if this issue
were properly before this court, the petitioner makes no allegation that this due process violation
renders his judgments of conviction void. Therefore, this claim is not a cognizable ground for
habeas corpus relief.

         The petitioner next claims that the trial court erred by not providing him with a sufficient
opportunity to oppose the State’s motion to dismiss his petition. The record indicates that the State
filed its motion to dismiss on September 7, 2006. The trial court granted the motion on September
12, 2006. The petitioner claims that language in Tennessee Rule of Civil Procedure 12.01, “[t]he
plaintiff shall serve a reply to a counterclaim in the answer within 30 days after service of the
answer,” guarantees him a right to submit a response to the State’s motion before it is ruled upon by
the court. The petitioner cites no authority in support of his construction of this rule of civil
procedure, and this alleged ground for relief does not posit that the petitioner’s judgments of
conviction are void. It is not a cognizable claim for habeas corpus relief.

        The petitioner argued in his amended petition that the trial court’s amendment of the
judgments directly contravened Tennessee Code Annotated section 40-35-211 (2006), dealing with
the imposition of sentences. He claimed that “25.8 years [25 years, 8 months] is not available under
the 1989 Act. T.C.A. § 40-35-211 provides for years or months, not years and months. Therefore,
25.8 years for a felony is an illegal sentence.” Again, however, the petitioner has not supported this
claim with argument in his appeal and has thus waived this issue. Even were we to reach the merits
of this issue, we could not conclude that this assertion constitutes a cognizable claim for habeas
corpus relief. We can discern no reason why the legislature would require that the length of a felony
sentence be expressed in either months or years, but not both. The petitioner offers us no reason why
the legislature would intend such an unorthodox, formalistic construction.

        Finally, the petitioner argues that the trial court erred by summarily dismissing his petition
without appointing counsel or holding an evidentiary hearing. Tennessee Code Annotated section
29-21-109 (2006) provides: “If, from the showing of the petitioner, the plaintiff would not be entitled
to any relief, the writ [of habeas corpus] may be refused, the reasons for such refusal being briefly
endorsed upon the petition, or appended thereto.” Our supreme court has held that “when a habeas
corpus petition fails to establish that a judgment is void, a trial court may dismiss the petition without
a hearing.” Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007) (citations omitted). An indigent
petitioner does not have a constitutional right to counsel in a habeas corpus proceeding unless the
trial court determines that counsel is “necessary” under Tennessee Code Annotated section 40-14-
204. Summers, 212 S.W.3d at 261. Appointment of counsel is not necessary merely because a
petition states a cognizable claim for habeas corpus relief. Id.



                                                   -5-
        The amended petition asserted that the petitioner’s sentence was illegal because (1) the
second degree murder sentence exceeded the maximum for a Range I offender; (2) the trial court
exceeded its authority by amending the judgment from thirty years as a Range I offender to twenty-
five years, eight months as a Range II offender; and (3) a sentence including a term of both years and
months is impermissible under Tennessee Code Annotated section 40-35-211. None of these claims
are meritorious. Therefore, summary dismissal of the petition was appropriate, as we will explain.

         Previous portions of this opinion have considered and rejected the first and third of these
claims. As for the second claim, a judgment becomes final thirty days after entry, after which time
the trial court generally may not amend it. State v. Moore, 814 S.W.2d 381, 382 (Tenn. Crim. App.
1991); see Tenn. R. App. P. 4(a), (c) (2007). The record reflects that the trial court amended the
judgment within one week of the entry of the original. Therefore, the trial court had jurisdiction to
make the amendment. Further, any potential error in the amendment process did not prejudice the
petitioner. As noted earlier, the amendment did not materially change the petitioner’s release
eligibility; any error was therefore harmless. See Tenn. R. App. P. 36(b) (2007) (“A final judgment
from which relief is available and otherwise appropriate shall not be set aside unless, considering
the whole record, error involving a substantial right more probably than not affected the judgment
or would result in prejudice to the judicial process.”). The petitioner did not present a cognizable
claim for habeas corpus relief in his petition, and the trial court was within its authority to dismiss
the petition without appointing counsel or conducting a hearing.

                                          CONCLUSION

       After our review, we affirm the trial court’s dismissal of the petition for habeas corpus relief.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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