        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 8, 2013

             ABISAI U. MALDONADO v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                        No. 91-04756    Lee V. Coffee, Judge


             No. W2012-00808-CCA-MR3-HC - Filed February 19, 2013


The Petitioner, Abisai U. Maldonado, appeals as of right from the Shelby County Criminal
Court’s summary dismissal of his petition for writ of habeas corpus. The Petitioner contends
that he received an illegal, one-year sentence for a misdemeanor conviction. Following our
review, we affirm the judgment of the habeas corpus court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J ERRY L. S MITH and
T HOMAS T. W OODALL, JJ., joined.

Stephen R. Leffler, Memphis, Tennessee, for the appellant, Abisai U. Maldonado.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Betsy Lynn Wiseman, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        In 1991, the Petitioner was indicted for one count of possession of marijuana with
intent to sell and one count of possession of marijuana with intent to deliver, both Class E
felonies. See Tenn. Code Ann. § 39-17-417 (1991). On May 17, 1991, the Petitioner entered
into a plea agreement with the State. The plea agreement listed that the Petitioner agreed to
plead guilty to “unlawful possession of a control substance with intent to sell – marijuana”
in exchange for a one-year sentence. Likewise, the judgment form stated that the Petitioner
was convicted of “unlawful possession of marijuana with intent to sell,” that the convicting
offense was a Class E felony, and that the Petitioner was sentenced to one year in the county
workhouse. However, the trial court’s order accepting the Petitioner’s petition for
acceptance of his guilty plea listed the convicting offense as “unlawful possession of a
controlled substance to wit marijuana” and omitted the phrase “with intent to sell.” The trial
court’s order also stated that the Petitioner’s petition for acceptance of his guilty plea was
“made a part of this [o]rder as if copied herein verbatim.”

        Over twenty years later, the Petitioner filed the petition for habeas corpus relief at
issue in this appeal. The petition alleged that the Petitioner had actually pled guilty to a
misdemeanor offense, simple possession of marijuana, instead of the felony offense listed
on the judgment form and the plea agreement; therefore, according to the Petitioner, his one-
year sentence was illegal. Petitioner’s counsel based this argument on the wording in the trial
court’s order listing the convicting offense as “unlawful possession of a controlled substance
to wit marijuana.” The petition for habeas corpus relief made no mention of the judgment
form or the plea agreement. The petition also alleged that the Petitioner received ineffective
assistance from his trial counsel because he was not informed of the possible immigration
consequences of his guilty plea.1 On November 17, 2011, the habeas corpus court entered
a written order summarily dismissing the petition. The habeas corpus court concluded that
the petition failed to state a cognizable claim because the judgment was facially valid and
that the Petitioner was “clearly mistaken” in his belief that he had pled guilty to a
misdemeanor. With respect to the Petitioner’s claim that he received ineffective assistance
of counsel, the habeas corpus court concluded that claim should have been brought in a post-
conviction proceeding but that any post-conviction claim would now be barred by the statute
of limitations.

        On appeal, the Petitioner contends that the habeas corpus court erred by summarily
dismissing the petition. The Petitioner reasserts his argument, based upon the trial court’s
order accepting his guilty plea, that he was convicted of a misdemeanor and received an
illegal one-year sentence. The Petitioner’s appellate brief makes no mention of the judgment
form or the plea agreement. In the appellate brief, counsel for the Petitioner misconstrues
the habeas corpus court’s order summarily dismissing the petition stating that the order was
“based on [the habeas corpus court’s] opinion that the proper avenue for collaterally
attacking the illegal sentence was a post-conviction proceeding, not a habeas corpus
proceeding, and that the statute of limitations had run on the claim.” The State responds that
the Petitioner is no longer imprisoned or restrained of liberty as a result of this conviction;
therefore, he cannot bring a habeas corpus claim. The State further responds that the
omission of the phrase “with intent to sell” on the trial court’s order was a mere clerical error
and does not render the judgment void.




1
 The Petitioner did not raise this issue in his appellate brief; therefore, he has waived appellate review of this
issue. See Tenn. R. App. P. 13(b).

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        Under Tennessee law, the “grounds upon which habeas corpus relief may be granted
are very narrow.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The writ will issue only
where the petitioner has established: (1) a lack of jurisdiction for the order of confinement
on the face of the judgment or in the record on which the judgment was rendered; or (2) that
he is otherwise entitled to immediate release because of the expiration of his sentence. See
State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000); Archer v. State, 851 S.W.2d 157, 164
(Tenn. 1993). The purpose of the habeas corpus petition is to contest a void, not merely a
voidable, judgment. State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968).
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.” See Summers v. State, 212
S.W.3d 251, 256 (Tenn. 2007). A petitioner bears the burden of establishing a void judgment
or illegal confinement by a preponderance of the evidence. See Wyatt v. State, 24 S.W.3d
319, 322 (Tenn. 2000). A habeas corpus court may summarily dismiss a petition without a
hearing when the petition “fails to demonstrate that the judgment is void.” Hickman v. State,
153 S.W.3d 16, 20 (Tenn. 2004); see Tenn. Code Ann. § 29-21-109.

        It is uncontested that the Petitioner served and completed his one-year sentence long
ago. Accordingly, the State is correct in its assertion that the Petitioner is not entitled to a
writ of habeas corpus in this matter because the Petitioner is not currently imprisoned or
restrained of liberty as a result of his 1991 conviction for possession of marijuana with intent
to sell. See Hickman v. State, 153 S.W.3d 16, 22-24 (Tenn. 2004). Furthermore, it is clear
from the face of the judgment and the plea agreement that the Petitioner pled guilty to a Class
E felony, possession of marijuana with intent to sell, and not to the misdemeanor offense of
simple possession of marijuana as the Petitioner now alleges. Having pled guilty to a Class
E felony, there was nothing illegal or void about the Petitioner’s one-year sentence. The
omission of the words “with intent to sell” from the trial court’s order accepting the plea
agreement amounted to nothing more than a mere clerical error and had no effect on the
validity of the conviction or sentence in this case. Accordingly, we affirm the habeas corpus
court’s summary dismissal of the petition for habeas corpus relief.

      In consideration of the foregoing and the record as a whole, the judgment of the
habeas corpus court is affirmed.




                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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