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

          REGINALD D. HUGHES v. DWIGHT BARBEE, WARDEN

            Direct Appeal from the Circuit Court for Lauderdale County
                     No. 6586    Joseph H. Walker, III, Judge



                 No. W2012-01767-CCA-R3-HC - Filed July 19, 2013


Petitioner, Reginald D. Hughes, appeals from the trial court’s summary dismissal of the pro
se third petition for habeas corpus relief filed by Petitioner. After a thorough review of the
record and the briefs, we affirm the judgment of the habeas corpus trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JERRY L. SMITH and
D. KELLY THOMAS, JR., JJ., joined.

Reginald D. Hughes, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; and Mike Dunavant, District Attorney General, for the appellee, the State of
Tennessee.

                                         OPINION

Background

       Petitioner’s long history of litigation was recounted in this Court’s opinion in the
appeal of the denial of Petitioner’s second petition for post-conviction relief:

       On October 8, 1987, the petitioner was convicted of two counts of second-
       degree murder. For these convictions, the petitioner was sentenced to two
       consecutive terms of thirty years as a Range I, standard offender. His
       convictions and sentences were affirmed on direct appeal. See State v.
       Reginald Dion Hughes, No. 96, 1988 WL 132698 (Tenn.Crim.App., at
       Jackson, Dec. 14, 1988), perm. app. denied (Tenn. Apr. 3, 1989). The
       petitioner unsuccessfully sought post-conviction relief. See Reginald Dion
       Hughes v. State, No. 02C01-9201-CR-00005, 1992 WL 368651
       (Tenn.Crim.App., at Jackson, Dec. 16, 1992), perm. app. denied (Tenn. May
       3, 1993). The petitioner was also unsuccessful in seeking relief in the form of
       writ of habeas corpus. See Reginald D. Hughes v. David Mills, Warden, No.
       W2003-02486-CCA-R3-HC, 2004 WL 547010 (Tenn.Crim.App., at Jackson,
       Mar. 19, 2004), perm. app. denied (Tenn. Aug. 30, 2004).

       The petitioner, proceeding pro se, filed his second petition for writ of habeas
       corpus on August 13, 2007. The petitioner alleged that his consecutive thirty-
       year terms were illegal and void because the court lacked authority to order his
       sentences to run consecutively. On August 21, 2007, the circuit court, by
       order, found that the petitioner had previously sought relief via direct appeal,
       post-conviction petition, and petition for writ of habeas corpus. The circuit
       court further found that the trial court had jurisdiction to sentence the
       petitioner, and the petitioner’s sentences were not expired. The court then
       dismissed the petition. It is from the court’s order of dismissal that the
       petitioner now appeals.

Reginald Dion Hughes v. Parker, No. W2007-02022-CCA-R3-HC, 2008 WL 1722454
(Tenn. Crim. App. April 14, 2008) perm. app. denied (Tenn. Oct. 27, 2008). This court
affirmed the judgment of the trial court. Id.

       On July 26, 2012, Petitioner filed a third petition for writ of habeas corpus. He
argued that his two sentences for second degree murder were illegal because the judgment
forms indicate “an erroneous adjudication of Thirty (30), years Range I, as a Persistent and
Especially Aggravated Offender, which mandates RANGE II. (Emphasis in original). In
other words, he argued that the judgment forms indicated that he was both a Range I and a
Range II offender. He noted that the face of the judgment sheets for both charges
“established the Petitioner as an ILLEGALLY HYBRID OFFENDER, of Standard,
Persistent, and Especially Aggravated. (emphasis in original). Petitioner further contended
that the Department of Correction had determined him to be a Range II offender, and
therefore, his thirty-year sentences were illegal for Range II, which required a minimum
sentence of thirty-five years.

      The trial court dismissed the petition. The order dismissing the petition contained the
following:



                                             -2-
       The defendant alleges that the sentence was illegal. He attached the sentencing
       hearing transcript, where the judge stated that: “upon the jury having found
       you guilty of Murder in the Second Degree in both indictments, it is the
       judgment of the Court you must be confined thirty years in the Department of
       Corrections, standard offender, Range One. And, also, that they must, under
       the law and the facts and circumstances, be served consecutively.” That is not
       an illegal sentence under the applicable sentencing act.

Analysis

       On appeal, Petitioner raises the same issue. He also argues that the trial court erred
by ordering his sentences to be served consecutively and that the sentencing court lacked
authority “to duplicitously [sic] attached [sic] multiple victim enhancements to separate
indictments.” (emphasis in original)

       The right to habeas corpus relief is available “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.” Summers v. State, 212
S.W.3d 251, 255 (Tenn. 2007) (quoting Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993)). In contrast to a post-conviction petition, a habeas corpus petition is used to
challenge void and not merely voidable judgments. Summers, 212 S.W.3d at 255-56. A
voidable judgment is one that is facially valid and requires proof beyond the face of the
record or judgment to establish its invalidity. Id. at 256; Dykes v. Compton, 978 S.W.2d
528, 529 (Tenn. 1998). A void judgment “is one in which the judgment is facially invalid
because the court lacked jurisdiction or authority to render the judgment.” Taylor v. State,
995 S.W.2d 78, 83 (Tenn. 1999); Dykes, 978 S.W.2d at 529.

       A petitioner bears the burden of proving a void judgment or illegal confinement by
a preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). A trial
court may summarily dismiss a petition for writ of habeas corpus without the appointment
of counsel and without an evidentiary hearing if there is nothing on the face of the judgment
to indicate that the convictions addressed therein are void. See Summers, 212 S.W.3d at
260; Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004).

      The determination of whether habeas corpus relief should be granted is a question of
law. Summers, 212 S.W.3d at 255; Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000).
Therefore, our review is de novo with no presumption of correctness given to the findings
and conclusions of the lower court. Summers, 212 S.W.3d at 255; State v. Livingston, 197
S.W.3d 710, 712 (Tenn. 2006).

                                             -3-
        Petitioner argues that his judgments reflect both a Range I and Range II offender
classification. Our review of the judgment forms in question indicate that while the lines
were inartfully drawn, the trial court marked out “Range II” on both forms. As pointed out
by the State, the “Range I” line is clearly unmarked on one form and “is arguably unmarked
on the other judgment, though the marking is a little haphazard.” In any event, this Court
has previously determined that Petitioner’s judgment forms indicate that he was sentenced
to two thirty-year sentences as a Range I offender. Reginald D. Hughes v. Mills, No.
W2003-02486-CCA-R3-CD, 2004 WL 547010 (Tenn. Crim. App. Mar. 19, 2004) perm.
app. denied (Tenn. Aug. 30, 2004); Reginald Dion Hughes v. Parker, No. W2007-02022-
CCA-R3-CD, 2008 WL 1722454 (Tenn. Crim. App. April 14, 2008) perm. app. denied
(Tenn. Nov. 24, 2008). In the appeal of the denial of Petitioner’s 2004 habeas petition, this
Court noted that Defendant’s sentence as a Range I offender and the Department of
Correction’s determination that Petitioner was a Range II offender had to be resolved
through the Administrative Procedures Act. Reginald Dion Hughes v. Parker, 2008 WL
1722454 at *2.

        The transcript of the sentencing hearing, attached to Petitioner’s petition, reflects that
the trial court sentenced Petitioner to “thirty years in the Department of Corrections, standard
offender, Range one.” If there was a discrepancy on the judgment forms concerning
whether Petitioner was a Range I or a Range II offender, the transcript of the sentencing
hearing would control. State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App.
1991)(when there is a conflict between the court minutes and the transcript of the
proceedings, the transcript controls). As pointed by the State, under the 1982 Sentencing
Act, a Range I sentence for second degree murder was ten to thirty-five years, and a Range
II sentence being thirty-five years to life. Therefore, Petitioner’s thirty-year sentence as a
Range I offender was not illegal. McChristian v. State, 159 S.W.3d 608, 612 (Tenn. Crim.
App. 2004).

       Petitioner also argues that the trial court erred in imposing consecutive sentences and
that the trial court lacked authority to apply the “multiple victim” enhancement to his
sentences. However, these issues were not raised in the trial court and are now waived.
Tenn. R. App. P. 36(a). We also point out that on direct appeal a panel of this Court
determined that consecutive sentences were appropriate in Petitioner’s case. State v.
Reginald Dion Hughes, No. 96, 1988 WL 132698 (Tenn. Crim. App. Dec. 14, 1988) perm.
app. denied (Tenn. April 3, 1989).

       It is obvious that nothing in the record indicates that Petitioner’s conviction or
sentence is void. The habeas corpus trial court may summarily dismiss a habeas corpus
petition without an evidentiary hearing if there is nothing on the face of the record or
judgment to indicate that the conviction or sentence are void. Passarella v. State, 891

                                               -4-
S.W.2d 619, 627 (Tenn. Crim. App. 1994); see also Tenn. Code Ann. § 29-21-109 (2010
Repl.). Petitioner is not entitled to relief on appeal. The judgment of the habeas corpus trial
court is affirmed.


                                                   _________________________________
                                                   THOMAS T. WOODALL, JUDGE




                                             -5-
