         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs September 9, 2008

              WILLIAM C. BROTHERS V. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Lauderdale County
                         No. 6217    Joseph H. Walker, III, Judge



                     No. W2008-00748-CCA-R3-HC - Filed June 12, 2009


The petitioner, William C. Brothers, filed a petition for habeas corpus relief in the Circuit Court for
Lauderdale County (hereinafter “habeas corpus court”) seeking relief from his two convictions for
aggravated sexual battery. The habeas corpus court dismissed the petition, and the petitioner now
appeals. Upon our review of the record and the parties’ briefs, we reverse the dismissal of the
petition and remand with instructions for the habeas corpus court to transfer the case to the
convicting court for correction of the judgments to reflect that the petitioner is required to provide
a specimen for DNA analysis in compliance with Tennessee Code Annotated section 40-35-321.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed, and the
                                   Case is Remanded.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which ALAN E. GLENN and CAMILLE
R. MCMULLEN , JJ., joined.

William C. Brothers, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; and
D. Michael Dunavant, District Attorney General, for the appellee, State of Tennessee.


                                             OPINION

                                      I. Factual Background

       The petitioner was initially indicted by a Davidson County grand jury on six counts of
aggravated sexual battery, a Class B felony. Pursuant to a plea agreement, he pled nolo contendere
to two counts of aggravated sexual battery and received a nine-year sentence for each count to be
served concurrently at one-hundred percent as a violent offender in the Tennessee Department of
Correction. In 2007, the petitioner filed a pro se petition for habeas corpus relief raising numerous
legal and factual allegations. On February 11, 2008, this court affirmed the dismissal of the first1
petition for habeas corpus relief. William C. Brothers v. State, No. M2007-01202-CCA-R3-HC,
2008 WL 371187 (Tenn. Crim. App. at Nashville, Feb. 11, 2008), perm. to appeal denied, (Tenn.
Apr. 28, 2008). Ten days later, the petitioner filed the instant petition for habeas corpus relief. In
a written order, the habeas corpus court summarily dismissed the petition concluding that the
petitioner had failed to demonstrate that he is entitled to habeas corpus relief. The petitioner appeals
the habeas corpus court’s ruling.

         Much of the lengthy petition for habeas corpus relief and the appellate brief the petitioner
filed in this case are an attempt to present the same claims that this court rejected in upholding the
dismissal of his previous petition for habeas corpus relief. In delivering this court’s opinion
affirming the dismissal of the petitioner’s first petition for habeas corpus relief, Judge McLin
explained:

                  While the petitioner raises a host of incoherent factual and legal
                  allegations, we discern the essence of these allegations as follows:
                  The petitioner points out that the indictments against him reflect that
                  the offenses of aggravated sexual battery occurred between
                  “December 15, 1994 and December 15, 1996.” Tennessee Code
                  Annotated section 40-35-501([i]) provides that offenses, including
                  aggravated sexual battery, committed on or after July 1, 1995 require
                  one hundred percent service of sentence. However, prior to July 1,
                  1995, no such provision existed and therefore, release eligibility was
                  determined by the usual offender classification system. See generally
                  Tenn. Code Ann. 40-35-105-108. The petitioner asserts that the
                  offenses alleged in the indictments actually occurred between
                  December 15, 1992 and December 15, 1994 dates occurring before
                  the effective amendment to section 40-35-501. The petitioner
                  disputes that the offenses to which he pled guilty actually occurred in
                  1996 even though the plea hearing transcript as well as the
                  petitioner’s judgments of conviction reflect 1996 as the year the
                  offenses occurred. Consequently, the petitioner argues that the
                  sentences are illegal because he is required to serve one hundred
                  percent service rather than being eligible for release after thirty
                  percent of service as authorized by Tennessee’s sentencing statutes
                  which were in effect prior to July 1, 1995.

                          Upon consideration of the record in this case, it is clear that
                  the petitioner’s allegations are both factually and legally incorrect.


         1
          Although we refer to case No. M2007-01202-CCA-R3-HC as the petitioner’s “first” habeas corpus case, we
glean from the record that the petitioner has filed at least two other petitions for habeas corpus relief that have been
dismissed in other counties.

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                According to the plea bargain agreement, the transcript of the plea
                hearing, and the judgments of conviction, the petitioner agreed to a
                nine-year sentence to be served at one hundred percent. In addition,
                the offense dates discussed at the petitioner’s plea hearing and
                recorded on the petitioner’s judgments of convictions reflect 1996 as
                the year the offenses occurred. Therefore, contrary to the petitioner’s
                allegations, the record clearly demonstrates that the court properly
                sentenced the petitioner to serve one hundred percent of his nine-year
                sentence as required by Tennessee Code Annotated section 40-35-
                501([i]). Furthermore, the record shows that the petitioner’s sentence
                was the product of a knowing and voluntary guilty plea. “[A]
                knowing and voluntary guilty plea waives any irregularity as to
                offender classification or release eligibility.” Hoover v. State, 215
                S.W.3d 776, 780 (Tenn. 2007). Offender classification and release
                eligibility are non-jurisdictional and legitimate bargaining tools in
                plea negotiations under both the 1982 and 1989 Sentencing Acts. Id.
                at 779-80. In sum, there is nothing on the face of the judgment, or in
                the record of the underlying proceedings that indicates the convicting
                court was without jurisdiction to sentence the petitioner or that the
                petitioner’s sentence has expired. As a result, the court’s summary
                dismissal was proper. See Summers, 212 S.W.3d [251, 260 (Tenn.
                2007)].

        Brothers, No. M2007-01202-CCA-R3-HC, 2008 WL 371187, at **1-2.

        In his appellate brief in the present case, the petitioner contends that he is entitled to relief
for the following five reasons:

        1) The suppression of proof of discovery is fatal;
        2) The trial court’s failure to order election ‘sua sponte’ is error;
        3) He filed a motion for default judgment on February 21, 2008;
        4) The trial court lacked jurisdiction to amend the judgments;
        5) The state fraudulently used the bill of particulars.

The gist of the petitioner’s arguments in this case is that he seeks to challenge the sufficiency of the
convicting evidence against him and, in particular, the timing of the offenses for which he entered
his plea. He argues that his sentences are illegal because the offenses occurred before Tennessee
Code Annotated section 40-35-101 was amended to provide for one-hundred percent service of a
sentence for aggravated sexual battery. He also contends that the trial court exceeded its jurisdiction
when it amended his judgments of conviction to remove the conditions that he be subject to lifetime
community supervision and be required to provide a specimen for DNA analysis.

                                             II. Analysis


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        Initially, we note that the determination of whether to grant habeas corpus relief is a question
of law. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we will review the trial
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).

        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). However, “[s]uch relief
is available only when it appears from the face of the judgment or record of the proceedings that a
trial court was without jurisdiction to sentence a defendant or that a defendant’s sentence of
imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d at 322. In other words, habeas
corpus relief may be sought only when the judgment is void, not merely voidable. 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, 995 S.W.2d at 83).

         Turning to the petitioner’s issues, we note that this court previously determined that the
sentencing court properly ordered the petitioner to serve one hundred percent of his nine-year
sentences as required by Tennessee Code Annotated section 40-35-501(i). In so far as the petitioner
is raising the same issues that this court has previously addressed, principles of res judicata dictate
that those issues not be relitigated. Tenn. Sup. Ct. R. 4(H); see also John C. Tomlinson v. State, No.
M2002-02152-CCA-R3-CO, 2002 WL 1400051, at *3 (Tenn. Crim. App. at Nashville, June 28,
2002).

         To the extent that the petitioner challenges the sufficiency of the evidence, the trial court’s
failure to order an election, and the State’s use of the bill of particulars in his case, those claims do
not present cognizable grounds for habeas corpus relief. The motion for default judgment that the
petitioner filed on February 21, 2008, arguing that the indictment included wrong dates for the
offenses, also does not demonstrate that the petitioner’s convictions are void or that he is entitled to
habeas corpus relief. A “conviction following a plea of nolo contendere ‘has all the effects of a plea
of guilty in so far as the purposes of the case are concerned.’” Teague v. State, 772 S.W.2d 932
(Tenn. Crim. App. 1988), overruled on other grounds by State v. Mixon, 983 S.W.2d 661, 671 n.13
(Tenn. 1999), and Owens v. State, 908 S.W.2d 923, 928 n.9 (Tenn. 1995) (citations omitted). Thus,
the petitioner’s entry of nolo contendere pleas to two counts of aggravated sexual battery “constitutes
an admission of all facts alleged and a waiver of procedural and constitutional defects in the
proceedings that occurred before the entry of the plea.” State v. Smith, 996 S.W.2d 845, 847 (Tenn.
Crim. App. 1999).

        Finally, we address the petitioner’s claim that the trial court was without jurisdiction to
amend the judgments against him. On April 25, 2002, the day the convicting court accepted the
petitioner’s plea, the court entered judgments reflecting the petitioner’s sentence of nine years for


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each conviction to be served at one hundred percent. In addition to requiring sex offender treatment
and registration, the judgments provided for lifetime community supervision pursuant to Tennessee
Code Annotated section 39-13-524 and required the petitioner to provide a specimen for DNA
analysis pursuant to Tennessee Code Annotated section 40-35-521.

         The sentencing court subsequently amended the judgments to delete the lifetime community
supervision and DNA requirements.2 The petitioner contends that Tennessee Code Annotated
section 39-13-524 and section 40-35-321 are applicable to his convictions and that the sentencing
court exceeded its jurisdiction when it amended the judgments. He argues that the applicable remedy
is the reversal of his convictions and remand of the case for a trial.

        With respect to the lifetime community supervision requirement, the Compiler’s Notes for
Tennessee Code Annotated section 39-13-524 provide that the statute applies to “all persons
committing applicable sex offenses on or after July 1, 1996.” Although, the record of the guilty plea
proceedings and the judgments reflect the date of the petitioner’s offenses as occurring in 1996,
nothing in the record demonstrates that the offenses occurred after July 1 of that year. Moreover,
the record reflects that the petitioner’s counsel and the State agreed to the amendment of the
judgments due to ex post facto concerns. Accordingly, the trial court’s amendment of the
petitioner’s judgments to delete the lifetime community supervision requirement neither violates
Tennessee Code Annotate section 39-13-524 nor entitles the petitioner to habeas corpus relief.

         Turning to petitioner’s DNA argument, we agree with the petitioner that the trial court’s
amendment of the judgments to delete the requirement that he provide a specimen for DNA analysis
violates Tennessee Code Annotated section 40-35-321. By its terms, the statute requires a court that
imposes a sentence for aggravated sexual battery to order the person convicted to “provide a
biological specimen for the purpose of DNA analysis.” Tenn. Code Ann. § 40-35-321(b). The
Compiler’s Notes for Tennessee Code Annotated section 40-35-3213 provide that the statute applies
to all persons that commit aggravated sexual battery or one of the other enumerated offenses “on or
after July 1, 1991.” When the sentencing court amended the petitioner’s judgments to delete the
requirement that the petitioner provide a specimen for DNA analysis, it imposed a sentence in direct


         2
           The copies of the amended judgments in the record do not reflect the date they were entered in the convicting
court. The petitioner has submitted a letter dated July, 9, 2002, he received from the attorney who represented him at
the guilty plea hearing that purports to enclose an agreed order, removing lifetime community supervision from his
sentence. However, the agreed order is not part of the appellate record. In an order entered on April 4, 2007, the
convicting court explained that “am ended judgments were entered on September 19, 2002 to reflect the fact that the
petitioner was not statutorily liable for producing a DNA sample under T.C.A. 40-35-321, nor should he be forced to
endure lifetime community supervision under T.C.A. 39-13-524.” In an order entered June 29, 2007, the convicting
court further explained that the conditions that the petitioner provide a DNA sample and be subject to lifetime
community supervision were removed from his sentence on September 19, 2002, because the parties agreed that those
statutes were not applicable to the petitioner based on the date of the offenses.
         3
            A lthough Tennessee Code Annotated section 40-35-321 has been amended since its enactment, its
applicability to sentences for aggravated sexual battery has not changed. The statute has always required that persons
convicted of aggravated sexual battery be required to provide a specimen for DNA analysis.

                                                          -5-
contravention of the statute. Without question, “a sentence imposed in direct contravention of a
statute . . . is void and illegal.” Stephenson, 28 S.W.3d at 911. Thus, we must reverse the habeas
corpus court’s dismissal of the petition. See Jasper D. Lewis v. Cherry Lindamood, Warden, No.
M2005-02104-CCA-R3-HC, 2006 WL 2563437, at *3 (Tenn. Crim. App. at Nashville, Aug. 31,
2006).

         However, we further note that the illegal provision of the amended judgments was neither
material nor a bargained-for element of the petitioner’s plea. The need for the petitioner to provide
a specimen for DNA analysis was never mentioned during the petitioner’s plea proceedings, and the
petitioner now contends that the convicting court exceeded its jurisdiction when it amended the
judgments to delete the requirement that he provide a specimen for DNA analysis. When “the
illegality infects only the sentence, only the sentence is rendered void and habeas corpus relief may
be granted to the extent of the sentence only. In such cases, the underlying conviction remains
intact,” and the appropriate remedy is to vacate the sentence and remand the case to the convicting
court for entry of a corrected judgment. Smith v. Lewis, 202 S.W.3d 124, 130 (Tenn. 2006).
Accordingly, we conclude that the petitioner’s convictions shall remain intact, and we grant habeas
corpus relief in order for the case to be remanded to the convicting court for entry of corrected
judgments that comply with Tennessee Code Annotated section 40-35-321.

                                         III. Conclusion

        We hold that the petitioner’s convictions and nine-year sentences to be served at one-hundred
percent as a violent offender shall remain in tact. However, because the amended judgments violate
Tennessee Code Annotated section 40-35-321, we reverse the habeas corpus court’s dismissal of the
petition for habeas corpus relief so that the amended judgments can be corrected. On remand, the
Lauderdale County Circuit Court shall transfer the case to the Davidson County Criminal Court for
entry of corrected judgments to reflect that the petitioner is required to provide a specimen for DNA
analysis in compliance with Tennessee Code Annotated section 40-35-321.


                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




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