         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 27, 2004

        JAMES WILLIAM PARSONS, JR. v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Greene County
                          No. 04CR066     James E. Beckner, Judge



                   No. E2004-01347-CCA-R3-HC - Filed December 29, 2004


The petitioner, James William Parsons, Jr., appeals the summary dismissal of his petition for writ
of habeas corpus. In 1999, he pled guilty to theft of property over $1000, arson, consuming alcohol
while under the age of twenty-one, and possession of a weapon in the commission of an offense and
was sentenced to an effective sentence of two years and one day, with all but 120 days to be served
on probation. He was subsequently convicted on separate charges in federal court and sentenced to
the federal penitentiary. The petitioner filed a petition for writ of habeas corpus in the Greene
County Criminal Court, claiming that his state plea agreement was illegal and void and therefore it
was improper for the federal court to use the state convictions to enhance his federal sentence. The
trial court dismissed the petition without a hearing on the matter, and the petitioner appealed. Based
upon our review, we affirm the judgment of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JERRY L. SMITH and J. C. MCLIN ,
JJ., joined.

Douglas A. Trant, Knoxville, Tennessee, for the appellant, James William Parsons, Jr.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
and C. Berkley Bell, District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

        From the sparse record in this case, it appears than on October 15, 1999, the petitioner pled
guilty in the Criminal Court of Greene County to theft of property over $1000, arson, consumption
of alcohol while under twenty-one years of age, and possession of a weapon in the commission of
an offense. He was sentenced to an effective sentence of two years and a day, with 120 days to be
served in incarceration and the remainder on probation, and the trial court entered an Alternative
Sentencing Order placing the petitioner in the community corrections program. The petitioner was
subsequently convicted in federal court on unrelated offenses, and the state convictions in the present
appeal were utilized to enhance his federal sentence.

        On April 5, 2004, the petitioner filed a petition for writ of habeas corpus in the Criminal
Court of Greene County, alleging that he was being illegally restrained of his liberty in federal prison
in West Virginia due to his federal sentence being enhanced based in part on his Tennessee
convictions. He claimed the state sentence was illegal and void because the trial court lacked
jurisdiction under Tennessee Code Annotated section 40-36-106 to place him in community
corrections, as his underlying convictions included the possession of a weapon in the commission
of an offense and arson, which he contended was a “crime of violence.” The petitioner alleged that
he was “unaware that the agreed sentence to which he was pleading was illegal and could not have
knowingly and voluntarily plead guilty” and “[u]nder such circumstances, a defendant is entitled to
withdraw his plea and proceed with trial.”

        On April 13, 2004, the trial court dismissed the petition without a hearing, finding that the
petitioner had failed to allege any grounds entitling him to habeas corpus relief:

                       The petitioner is in Federal custody but the conviction in this
               court was used to enhance his Federal sentence.
                       The petitioner was placed in Community Correction[s] after
               conviction for arson. Petitioner argues that the sentence (not the
               conviction) was illegal and void because this court did not have
               jurisdiction to sentence the petitioner to Community Corrections upon
               a conviction for Arson. The petitioner alleges that arson is a crime of
               violence.
                       T.C.A. 40-36-106 makes persons ineligible for Community
               Corrections who have been convicted of a crime of violence to the
               person.
                       Arson is not a crime of violence to the person. Aggravated
               Arson can be a crime of violence to the person but the petitioner was
               not convicted of Aggravated Arson.
                       Further, even though the statute makes a defendant ineligible
               for sentencing to community corrections the sentencing court has
               jurisdiction to impose such a sentence.
                       In addition a writ of habeas corpus must be filed in the
               jurisdiction in which the petitioner is incarcerated and this county is
               not that jurisdiction.

                                             ANALYSIS

       We begin our analysis by agreeing with the State that this appeal appears to be time-barred.
Pursuant to Tennessee Rule of Appellate Procedure 4(a), a notice of appeal must be filed within


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thirty days of the judgment from which the appeal is taken. Although the order dismissing the
petition was filed on April 15, 2004, the notice of appeal was not filed until June 2, 2004, and does
not explain why it was filed outside the thirty days for appeal.1 One possibility is that the certificate
of clerk on the order, dated April 15, 2004, reflects that it was mailed to the petitioner at a route
number in “Lauel Bloomey,” Tennessee,2 but it does not reflect that a copy was sent to the
petitioner’s counsel. At the time of the dismissal, it appears that the petitioner was incarcerated in
a federal prison in West Virginia. This court may waive untimely filing of the notice of appeal “in
the interest of justice.” Tenn. R. App. P. 4(a). Because it does not appear that the notice of the
dismissal of the petition timely reached the petitioner or his counsel, we will address the merits of
this appeal.

        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. Davenport, 980 S.W.2d 407, 409 (Tenn. Crim. App. 1998);
Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994). A void, as opposed to a
voidable, judgment has been defined by our supreme court as "one in which the judgment is facially
invalid because the court did not have the statutory authority to render such judgment." Dykes v.
Compton, 978 S.W.2d 528, 529 (Tenn. 1998); see also Taylor v. State, 995 S.W.2d 78, 83 (Tenn.
1999). The judgment of a court of general jurisdiction is conclusive and 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); Passarella, 891 S.W.2d at 626. Thus, habeas corpus relief is available only when "'it appears
upon the face of the judgment or the record of the proceedings upon which the judgement is
rendered' that a convicting court was without jurisdiction or authority to sentence a defendant, or that
a defendant's sentence of imprisonment . . . has expired." Archer, 851 S.W.2d at 164 (citation
omitted).

        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; Passarella,
891 S.W.2d at 627. 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 proper
means of challenging a facially valid judgment based on a constitutional violation is through a
petition for post-conviction relief. Lewis v. Metropolitan Gen. Sessions Court for Nashville, 949
S.W.2d 696, 699 (Tenn. Crim. App. 1996); Fredrick v. State, 906 S.W.2d 927, 929 (Tenn. Crim.
App. 1993).

       The petitioner pled guilty to theft of property over $1000, a Class D felony, and was
sentenced as a Range I, standard offender to two years and a day in the county jail. The judgment


         1
          W e note that the order dismissing the petition was filed on April 15, 2004, but the State’s motion to dismiss
was filed on May 27, 2004, and the petitioner’s response to that motion was also filed on May 27, 2004.

         2
             W e presume this was intended to be Laurel Bloomery in Johnson County.

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form for the theft shows that he was to be incarcerated for 120 days, with the remainder to be served
on probation. The sentences for his arson, consuming alcohol under the age of twenty-one, and
possession of a weapon in the commission of an offense convictions were one year, eleven months
and twenty-nine days, and one year, respectively, to be served concurrently with the theft sentence.
There is nothing on the face of the judgments, and the petitioner does not so allege, showing that the
judgments were invalid or void.

        Neither is the petitioner's sentence illegal. Community corrections is an alternative
sentencing and punishment scheme for selected, nonviolent offenders, allowing the state to reserve
“secure confinement facilities for violent felony offenders.” Tenn. Code. Ann. § 40-36-103(1)
(2003). The petitioner contends that because he did not meet the statutory eligibility requirements
of Tennessee Code Annotated section 40-36-106(a)(1)(C) and (D), the trial court did not have the
authority to sentence him to community corrections, and therefore, his sentence was illegal.

         The judgment forms do not reflect that the petitioner was placed in the community
corrections program, but the trial court entered an Alternative Sentencing Order on October 15,
1999, the same day the judgments were entered, placing the petitioner in the community corrections
program. However, the order was not filed until April 3, 2000. As for whether the petitioner’s
sentence disqualified him from the community corrections program, as he claims, we note that he
pled guilty to arson, as set forth in Tennessee Code Annotated section 39-14-303 (1997), which is
styled “Setting fire to personal property or land” and exempts buildings or structures which are
covered under Tennessee Code Annotated section 39-14-301. The record contains no facts
concerning the underlying convictions, and we cannot conclude that the arson in this case was other
than a property-related crime. Such a conviction would not make the petitioner ineligible for
community corrections. He also pled guilty to possession of a weapon in the commission of an
offense pursuant to Tennessee Code Annotated section 39-17-1307 (1997), which could have made
him ineligible for community corrections under Tennessee Code Annotated section 40-36-
106(a)(1)(D) (2003). However, Tennessee Code Annotated section 40-36-106(c) allows a trial court
to sentence an otherwise ineligible felony offender to community corrections if that offender has a
history of chronic alcohol or drug abuse, or mental health problems, and the problems can be treated
in the community setting. Because of the incompleteness of the record, we cannot conclude that the
trial court did not utilize this provision in sentencing the petitioner to community corrections. Thus,
the record on appeal does not support the petitioner’s claim that the nature of his sentences
disqualified him from community corrections.

       Finally, we note that in the very recent decision of Hickman v. State, __S.W.3d__, 2004 WL
2563267 (Tenn. 2004), our supreme court held the writ of habeas corpus cannot be used to attack
a conviction when that conviction is only used to enhance a subsequent conviction. The facts of
Hickman are similar to the present case. In Hickman, the petitioner pled guilty in 1986 to a
marijuana possession charge. Sixteen years later, in 2002, the petitioner “sought to set aside the
1986 conviction ‘so [that] it may not be considered in a case in U.S. District Court.’” Id. at *1. The
Tennessee Supreme Court affirmed the dismissal of that petition, holding that “[a]lthough this 1986
conviction may have been used to enhance a federal sentence Hickman is serving, enhancement is


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merely a collateral consequence of the 1986 judgment,” and thus, “habeas corpus is not an
appropriate avenue for seeking relief.” Id. at **4-5 (citing Maleng v. Cook, 490 U.S. 488, 109 S.
Ct. 1923 (1989)). While the petitioner here might be “in custody” under the Post-Conviction
Procedure Act and may be suffering “collateral legal consequences,” see Passarella, 891 S.W.2d at
623, he is not “imprisoned” or “restrained of liberty” on the convictions he now challenges under
the state habeas corpus act. The record reflects that the challenged sentences expired in 2001, and
the petitioner is therefore no longer imprisoned or restrained of his liberty on those convictions. The
enhancement of the petitioner’s federal sentence would appear to be merely a collateral consequence
of his state convictions. “Use of the challenged judgment to enhance the sentence imposed on a
separate conviction is not a restraint of liberty sufficient to permit a habeas corpus challenge to the
original conviction long after the sentence on the original conviction has expired.” Hickman, 2004
WL 2563267, at *5.

        Under certain circumstances, a petition for writ of habeas corpus may be treated as a petition
for post-conviction relief under Tennessee Code Annotated section 40-30-205(c); however, the
statute of limitations for filing a post-conviction petition is one year from the date of the final action
of the highest state appellate court to which an appeal is taken or within one year of the date on
which the judgment became final. Tenn. Code Ann. § 40-30-102(a) (2003). Here, the guilty pleas
were entered in 1999, but the habeas corpus petition was not filed until 2004. Therefore, even if we
were to treat the petition as one for post-conviction relief, it would be barred by the expiration of the
statute of limitations. Carter v. State, 952 S.W.2d 417, 420 (Tenn. 1997).

        The petitioner does not allege that the trial court lacked personal and subject matter
jurisdiction over him when it rendered the judgment. This judgment is presumed to be valid, and
we see no evidence in the record before us that it was not. A facially valid judgment cannot be
collaterally attacked by requesting habeas corpus relief, and the trial court was correct in dismissing
the petition. We, therefore, affirm the judgment of the trial court.

                                           CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the trial court
dismissing the petition.

                                                                 _______________________________
                                                                 ALAN E. GLENN, JUDGE




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