        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

                  JOHN W. SMITH v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                                    No. 99C2088


                   No. M2013-00228-CCA-R3-HC Filed 06/06/2013


This matter is before the Court upon the State’s motion to dismiss or in the alternative to
affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules
of the Court of Criminal Appeals. Petitioner, John W. Smith, has appealed the Davidson
County Circuit Court order dismissing his second petition for writ of habeas corpus in which
Petitioner alleged that: (1) his sentence is illegal; and (2) his guilty plea was not knowingly
or voluntarily entered. Upon a review of the record in this case, we are persuaded that the
trial court was correct in dismissing the petition and that this case meets the criteria for
affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the
State’s motion is granted, and the judgment of the trial court is affirmed.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court
       Affirmed Pursuant to Rule 20, Rules of the Court of Criminal Appeals

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

John W. Smith, Pro Se, Nashville, Tennessee.

Robert E. Cooper, Jr., Attorney General & Reporter, and Benjamin A. Ball, Assistant
Attorney General, for the appellee, State of Tennessee.

                               MEMORANDUM OPINION

       Petitioner was originally indicted by the Davidson County Grand Jury for one count
of especially aggravated robbery and eleven counts of aggravated robbery. See John W.
Smith v. State, No. M2003-00729-CCA-R3-PC, 2004 WL 1434479, at *1 (Tenn. Crim. App.,
at Nashville, Jun. 25, 2004), perm. app. denied, (Tenn. Oct. 4, 2004). Petitioner ultimately
pled guilty to one count of facilitation of especially aggravated robbery and three counts of
aggravated robbery. Id. As a result of the guilty plea, Appellant received a Range III
sentence of twenty years for the facilitation conviction, and concurrent Range III sentences
of twenty years for the three counts of aggravated robbery. The concurrent sentences for
each aggravated robbery were ordered to be served consecutively to the sentence for
facilitation of especially aggravated robbery, making the effective sentence forty years.
Additionally, the sentences were ordered to be served consecutively to the remainder of a
sentence for which Petitioner was on parole. Id.

       Petitioner sought post-conviction relief on the basis of alleged ineffective assistance
of counsel which, he claims, resulted in the entry of an involuntary guilty plea. Id. The
petition for relief was denied by the post-conviction court and this Court affirmed the post-
conviction court’s judgment on appeal. Id. at *4.
The supreme court denied permission to appeal.

       In February of 2006, Petitioner filed a petition for writ of habeas corpus in Hickman
County. John W. Smith v. Wayne Brandon, No. M2006-01042-CCA-R3-HC, 2006 WL
3290835, at *1 (Tenn. Crim. App., at Nashville, Nov. 3, 2006), perm. app. denied, (Tenn.
Mar. 12, 2007). The petition was dismissed by the trial court and Petitioner appealed. Id.
at *1. The petition argued that the trial court was without jurisdiction to sentence Petitioner
in the manner in which it did; and that the trial court did not have authority to accept his
guilty pleas because the sentences were void. This Court affirmed the summary dismissal
of the petition. Id. at *3.

        On October 14, 2012, Petitioner filed the petition for habeas corpus relief at issue
herein. The petition was filed in Davidson County and alleged that his sentence is illegal and
his guilty plea was unknowingly and involuntarily entered. The trial court dismissed the
petition, noting that Petitioner raised issues in a memorandum in support of his petition in
addition to the issues raised in the petition. The trial court determined that Petitioner’s
sentence had not yet expired and that the trial court had followed mandatory sentencing
procedures in sentencing Petitioner. Consequently, the trial court denied habeas corpus
relief. Petitioner appeals.

                                   Habeas Corpus Relief

        The determination of whether to grant habeas corpus relief is a question of law. See
Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004). As such, we will review the habeas
corpus court’s findings de novo without a presumption of correctness. Id. Moreover, it is
the petitioner’s burden to demonstrate, by a preponderance of the evidence, “that the sentence
is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).




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        Article I, section 15 of the Tennessee Constitution guarantees an accused the right to
seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A writ of
habeas corpus is available only when it appears on the face of the judgment or the record that
the convicting court was without jurisdiction to convict or sentence the defendant or that the
defendant is still imprisoned despite the expiration of his sentence. Archer v. State, 851
S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In other
words, habeas corpus relief may be sought only when the judgment is void, not merely
voidable. See Taylor, 995 S.W.2d at 83. “A void judgment ‘is one in which the judgment
is facially invalid because the court lacked jurisdiction or authority to render the judgment
or because the defendant’s sentence has expired.’ We have recognized that a sentence
imposed in direct contravention of a statute, for example, is void and illegal.” Stephenson
v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (quoting Taylor, 955 S.W.2d at 83).

        However, if after a review of the habeas petitioner’s filings the habeas corpus court
determines that the petitioner would not be entitled to relief, then the petition may be
summarily dismissed. T .C.A. § 29-21-109; State ex rel. Byrd v. Bomar, 381 S.W.2d 280,
283 (Tenn. 1964). Further, a habeas corpus court may summarily dismiss a petition for writ
of habeas corpus without the appointment of a lawyer and without an evidentiary hearing if
there is nothing on the face of the judgment to indicate that the convictions addressed therein
are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

       The procedural requirements for habeas corpus relief are mandatory and must be
scrupulously followed. Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007); Hickman, 153
S.W.3d at 19-20; Archer, 851 S.W.2d at 165. For the benefit of individuals such as the
petitioner, our legislature has explicitly laid out the formal requirements for a petition for a
writ of habeas corpus at Tennessee Code Annotated section 29-21-107:


       (a) Application for the writ shall be made by petition, signed either by the party
       for whose benefit it is intended, or some person on the petitioner’s behalf, and
       verified by affidavit.

       (b) The petition shall state:

       (1) That the person in whose behalf the writ is sought, is illegally restrained of
       liberty, and the person by whom and place where restrained, mentioning the
       name of such person, if known, and, if unknown, describing the person with
       as much particularity as practicable;




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       (2) The cause or pretense of such restraint according to the best information
       of the applicant, and if it be by virtue of any legal process, a copy thereof shall
       be annexed, or a satisfactory reason given for its absence;

       (3) That the legality of the restraint has not already been adjudged upon a prior
       proceeding of the same character, to the best of the applicant’s knowledge and
       belief; and

       (4) That it is the first application for the writ, or, is a previous application has
       been made, a copy of the petition and proceedings thereon shall be produced,
       or satisfactory reasons be given for the failure so to do.


A habeas corpus court “properly may choose to summarily dismiss a petition for failing to
comply with the statutory procedural requirements.” Summers, 212 S.W.3d at 260; See also
Hickman, 153 S.W.3d at 21.

        In the case herein, Petitioner advances the same argument on appeal that he presented
to the trial court, i.e. that the trial court was without jurisdiction to impose his sentence and
that his guilty plea was unknowingly or involuntarily entered. Additionally, on appeal,
Petitioner argues that Tennessee Rule of Civil Procedure 60.02 somehow applies to his
situation. This issue in particular was not presented to the trial court. Thus, it cannot be
raised for the first time on appeal. See e.g., State v. Alvarado, 961 S.W.2d 136, 153 (Tenn.
Crim. App. 1996) (holding that when a defendant raises an issue for the first time on appeal,
this Court will normally deem it waived).

        The issues remaining in the petition are identical to the issues raised by Petitioner in
his prior habeas proceedings. He argues that the trial court lacked jurisdiction to order count
two to be served concurrently with counts 3 and 4, asserting instead that the judgments “shall
occur in a progressive fashion.” This issue was addressed on appeal of the first habeas
petition. John W. Smith, 2006 WL 3290835, at *2. Petitioner also argues that his concurrent
sentences violate Tennessee Rule of Criminal Procedure 32(c)(3)(A) because of his status
as a parolee at the time of the commission of the underlying crimes. Again, this issue was
addressed and discounted on appeal of the first petition for habeas relief. Id. at *2. Lastly,
Petitioner challenges the voluntariness of the plea. This is not an issue for habeas corpus
relief as the involuntariness of a guilty plea would render a conviction voidable, not void.
See Summers v. State, 212 S.W.3d 251, 259 (Tenn. 2007); Archer, 851 S.W.2d at 163-64
(citing Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992)). Consequently, Petitioner’s second
petition for habeas corpus relief has failed to allege a cognizable ground for relief.
Accordingly, the trial court properly dismissed the petition. Petitioner is not entitled to relief.

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       Rule 20, Rules of the Court of Criminal Appeals provides inter alia:

       The Court, with the concurrence of all judges participating in the case, when
       an opinion would have no precedential value, may affirm the judgment or
       action of the trial court by memorandum opinion rather than by formal opinion,
       when:

       The judgment is rendered or the action taken in a proceeding before the trial
       judge without a jury, and such judgment or action is not a determination of
       guilt, and the evidence does not preponderate against the finding of the trial
       judge . . . .

      We determine that this case meets the criteria of the above-quoted rule and, therefore,
we grant the State’s motion filed under Rule 20. We affirm the judgment of the post-
conviction court.


                                                  ____________________________________
                                                  JERRY L. SMITH, JUDGE




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