         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 19, 2009

               DAVID WAYNE SMART v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                       No. 2001-A-162    J. Randall Wyatt, Jr., Judge



                  No. M2009-00651-CCA-R3-HC - Filed September 23, 2009


The Petitioner, David Wayne Smart, appeals the summary dismissal of his petition for habeas corpus
relief. The petition alleged that the trial court unconstitutionally merged the provision requiring a
minimum life sentence for first degree murder and the provision prohibiting instructions on possible
penalties to the jury. The Davidson County Criminal Court summarily dismissed the petition,
finding that the Petitioner had failed to state a cognizable claim for relief. Following our review of
the record and the applicable law, we affirm the order summarily dismissing the petition.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
ROBERT W. WEDEMEYER, JJ., joined.

David Wayne Smart, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

                                       Factual Background
        In 2001, a Davidson County jury convicted the Petitioner of first degree premeditated murder
for the shooting death of the victim, Gabriel Jeans, at a Phillips 66 gasoline station in Nashville.
State v. David Wayne Smart, No. M2001-02881-CCA-R3-CD, 2003 WL 21077997, at *1 (Tenn.
Crim. App., Nashville, May 13, 2003), perm. to appeal denied, (Tenn. Oct. 13, 2003). Because the
State did not seek either the death penalty or a life sentence without the possibility of parole, the
Petitioner was automatically sentenced by the trial court to life imprisonment. Id. That judgment
was affirmed on direct appeal. See id. Later, the Petitioner sought post-conviction relief alleging
ineffective assistance of counsel. The post-conviction court denied relief, and this Court affirmed.
See David Wayne Smart v. State, No. M2007-00504-CCA-R3-PC, 2008 WL 343156 (Tenn. Crim.
App., Nashville, Feb. 4, 2008), perm. to appeal denied, (Tenn. Sept. 15, 2008).

         The Petitioner filed a petition for a writ of habeas corpus on September 18, 2008. As grounds
for relief, the Petitioner challenged the constitutionality of certain provisions of the Tennessee Code:
sections 39-13-208(c) (trial court to impose automatic life sentence for first degree murder if State
did not seek enhanced punishment) and 40-35-201(b) (trial court not allowed to instruct jury on
range of punishment in non-capital cases). He contended that these sections, either “singly [sic]
and/or in collaboration,” (1) waived his “statutory right to have the jury determine his sentence”; (2)
“transfer[r]ed the sentencing power to the prosecutor”; (3) “prevented, the sentencer, [sic] from
giving meaningful effect to facts the law makes essential to the [P]etitioner’s punishment”; (4)
“permit[t]ed an arbitrary and capriciously imposed sentence”; and (5) “deprived the jury of their right
to determine the law and the facts . . . .” The Petitioner did not elaborate any further upon these
allegations in his petition.

       The habeas corpus court summarily dismissed the petition by order filed on February 17,
2009, reasoning as follows:

        The [c]ourt finds that the Petitioner has only put forth conclusory legal abstractions.
        Essentially, the Petitioner complains that removing the sentencing decision from the
        jury to the judge or to a statutory determination is unconstitutional. The [c]ourt finds
        that the right to a trial by jury has never encompassed the right to have a jury
        determine the length of sentence. See, e.g., Oregon v. Ice, -- U.S. --, 129 S. Ct. 711
        (2009) (“the historic jury function—determining whether the prosecution has proved
        each element of an offense beyond a reasonable doubt”); see also Apprendi v. New
        Jersey, 530 U.S. 466 (2000) (determining that the jury’s province is only to determine
        facts beyond a reasonable doubt which increase the statutory minimum sentence, but
        necessarily finding that a statutory minimum penalty is not unconstitutional.)

(emphasis in original). It is from the order of summary dismissal that the Petitioner appeals.

                                              Analysis
        On appeal, the Petitioner claims that summary dismissal was improper. He argues that the
trial court was without jurisdiction or authority to sentence him because: (1) “In refusing to allow
the jury to be informed of the punishment for first degree murder, the trial judge applied a procedure
which was appropriate under the 1989 Sentencing Reform Act [sections 40-35-101 to -505], but not
under the first degree sentencing procedures [sections 39-13-202 to -208]. . . . . By doing so, the trial
judge unconstitutionally created a third procedure or act which was not legislatively authorized.”;
and (2) Section 39-13-208(c) “unconstitutionally transfer[s] the sentencing power to the executive
branch.”

       The determination of whether to grant habeas corpus relief is a question of law and our
review is de novo. See Summers v. State, 212 S.W.3d 251, 262 (Tenn. 2007). The Tennessee


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Constitution guarantees a convicted criminal defendant the right to seek habeas corpus relief. See
Tenn. Const. art. I, § 15. However, the grounds upon which habeas corpus relief will be granted are
very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A petition for habeas corpus relief
may only be granted when the judgment is shown to be void, rather than merely voidable. Id. 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 the convicting court was without jurisdiction or authority
to sentence a defendant or that a defendant’s sentence has expired. Archer v. State, 851 S.W.2d 157,
164 (Tenn. 1993). On the other hand, a voidable judgment or sentence is one which is facially valid
and which requires evidence beyond the face of the judgment or the record of the proceedings to
establish its invalidity. Taylor, 995 S.W.2d at 83. A petitioner bears the burden of establishing a
void judgment or illegal confinement by a preponderance of the evidence. Hogan v. Mills, 168
S.W.3d 753, 755 (Tenn. 2005). Moreover, it is permissible for a court to summarily dismiss a
habeas corpus petition, without the appointment of counsel and without an evidentiary hearing, if
there is nothing on the face of the record or judgment to indicate that the convictions or sentences
addressed therein are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

        We agree with the habeas corpus court that the Petitioner merely submits “conclusory legal
abstractions.” We see no need to become bogged down analyzing these abstractions. The Petitioner
has not provided this Court with any authority, and we know of none, that these two statutes cannot
work in conjunction with one another. A petition for post-conviction relief is the procedural avenue
for attacking potentially voidable judgments. Taylor, 995 S.W.2d at 83; State v. McClintock, 732
S.W.2d 268, 272 (Tenn. 1987). Recognizing the narrow scope of habeas corpus relief, in 1967 the
Tennessee General Assembly enacted the Post-Conviction Procedures Act. Hickman, 153 S.W.3d
16, 20 (Tenn. 2004). Post-conviction petitioners, unlike habeas corpus petitioners, may challenge
convictions or sentences that the petitioners assert are either void or voidable because of the
abridgment of constitutional rights. Tenn. Code Ann. § 40-30-103; Hickman, 153 S.W.3d at 20.
The imposition of an automatic life sentence has been found not to be arbitrary or irrational in
violation of the equal protection clause. See State v. Ray, 880 S.W.2d 700 (Tenn. Crim. App. 1993).
The legislature is authorized to set and define applicable punishments. See Tenn. Const. article II,
§ 2. As noted by the trial court, imposition of a statutory minimum sentence by a trial judge is not
violative of constitutional principles. See Apprendi, 530 U.S. at 439.

       The Petitioner’s lawful sentence has not expired, and the sentencing court had jurisdiction
and authority to enter the judgment against him. Because the petition did not state a cognizable
claim for habeas corpus relief, summary dismissal was proper.

                                            Conclusion
        For the reasons stated herein, we conclude that the Davidson County Criminal Court did not
err by summarily dismissing the habeas corpus petition. The judgment is affirmed.


                                                      ______________________________
                                                      DAVID H. WELLES, JUDGE


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