             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                 Assigned on Briefs January 25, 2005

              LUTHER E. FOWLER v. HOWARD CARLTON, Warden

                         Appeal from the Criminal Court for Johnson County
                                 No. 4331   Robert E. Cupp, Judge



                        No. E2004-01346-CCA-R3-HC - Filed March 21, 2005


The petitioner, Luther E. Fowler, appeals from the Johnson County Criminal Court’s summary
dismissal of his petition for habeas corpus relief. We affirm.

                 Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR ., J., delivered the opinion of the court, in which GARY R. WADE, P.J.,
and NORMA MCGEE OGLE, J., joined.

Luther E. Fowler, Pro Se.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; and
Joe C. Crumley, Jr., District Attorney General, for the Appellee, State of Tennessee.

                                                     OPINION

               The petitioner, Luther E. Fowler, filed a petition for habeas corpus relief in which
he attacked his 1992 conviction of felonious assault with intent to commit first degree murder,
which resulted from a charge on a 1988 offense. The petitioner claimed that his 40-year sentence
as a multiple offender imposed pursuant to the 1989 Sentencing Act was illegal.

                                                  I. Background.

                The petitioner was originally convicted in 1992 and received a Range III sentence of
60 years; however, this court reversed the sentence and remanded for a new sentencing hearing. See
State v. Luther E. Fowler, No. 03C01-9207-CR-00249 (Tenn. Crim. App., Knoxville, July 27, 1993)
(Fowler I).1 Upon remand, the trial court refused to consider the petitioner’s prior convictions


         1
         According to the recitation of the facts of the conviction offense that appeared in Fowler I, the petitioner
confronted the victim in a bar, “slapped [him] in the face and then shot him in the chest.” Fowler I, slip op. at 4. The
                                                                                                           (continued...)
because the state did not properly prove them at the first sentencing hearing, and the state appealed.
Thereafter, this court again reversed and remanded, after concluding that the trial court erred in
prohibiting the state from establishing the petitioner’s sentencing range. See State v. Luther E.
Fowler, No. 03C01-9409-CR-00334 (Tenn. Crim. App., Knoxville, Sept. 19, 1995) (Fowler II).
Apparently, at the ensuing sentencing hearing, the trial court imposed a Range II, multiple-offender
sentence of 40 years. No appeal followed, but the petitioner filed a post-conviction petition and
appealed from the denial of relief. See Luther E. Fowler v. State, No. 03C01-9711-CR-00509 (Tenn.
Crim. App., Knoxville, July 30, 1999) (Fowler III).

               The petitioner was convicted of assault with intent to commit first degree murder
pursuant to former Tennessee Code Annotated section 39-2-103, which provided:

                 (a) Whoever shall feloniously and with malice aforethought assault
                 any person, with intent to commit murder in the first degree, . . .
                 though death not ensue, shall, on conviction, be imprisoned in the
                 state penitentiary for not less than five (5) nor more than twenty-five
                 (25) years.

                 (b) If bodily injury occurs as a result of such an assault in violation of
                 subsection (a), the punishment shall be a determinate sentence of
                 confinement in the state penitentiary for life or for a period of not less
                 than five (5) years.

Tenn. Code Ann. § 39-2-103(a), (b) (1982) (repealed 1989); see Fowler I, slip op. at 2. Pursuant to
the Criminal Sentencing Reform Act of 1982, “a life sentence shall be presumed to be sixty (60)
years.” Tenn. Code Ann. § 40-35-109(d)(1) (Supp. 1988) (repealed 1989). The 1982 Sentencing
Act also provided that a standard, Range I offender would be sentenced to a term of imprisonment
“not less than the minimum sentence established by law, and not more than the minimum sentence
plus one-half (½) of the difference between the maximum sentence and the minimum sentence.”
Id. § 40-35-109(a) (repealed 1989). On the other hand, the 1982 Act created a persistent-offender
category for those offenders who received either two or more felony convictions within the five years
immediately preceding the instant offense, or four or more felony convictions within 10 years
immediately preceding the instant offense. Id. § 40-35-106(a) (repealed 1989). A persistent offender
was to be sentenced within Range II, for which the court would impose a sentence “not less than the
minimum sentence plus one-half (½) of the difference between the maximum sentence and the
minimum sentence, and not more than the maximum sentence as provided by law.” Id. § 40-35-
109(b) (repealed 1989).

                Though convicted via a pre-1989 penal statute, the petitioner was sentenced pursuant
to the Criminal Sentencing Reform Act of 1989. Applying the 1989 Act’s conversion tables set forth


        1
         (...continued)
gunshot wound necessitated the removal of the victim’s gall bladder. Id.

                                                        -2-
in Code section 40-35-118, the offense of assault with intent to commit first degree murder equates
to a Class A felony offense in the 1989 Act. Id. § 40-35-118. As such, the broad gamut of
sentencing for Class A felonies is a minimum of 15 years and a maximum of 60 years. Id. § 40-35-
112(a)(1), (c)(1).

                In its motion to dismiss the current petition for habeas corpus relief, the state urged
dismissal on the ground that the petitioner’s claim that he should have been sentenced pursuant to
the 1982 Sentencing Act, rather than the 1989 Act, “would require the introduction of proof beyond
the face of the record or judgment.”

                On May 11, 2004, the habeas corpus court held that the trial court had jurisdiction
to impose the 40-year sentence pursuant to the 1989 Sentencing Act and dismissed the petition. The
petitioner filed a timely notice of appeal. See Tenn. R. App. P. 3(b), 4.

                                         II. Appellate Claims.

                In his appellate brief, the petitioner claims that, pursuant to the Criminal Sentencing
Reform Act of 1982, which was effective at the time of his 1988 offense, he would have received
a sentence in the range of five to 32 years and would have been eligible for release after serving 30
percent of the sentence. He based his calculations upon the 1982 Act’s provisions for computing
prior convictions in establishing a range and a release eligibility date. He states that his Range II
1996 sentence of 40 years pursuant to the Criminal Sentencing Reform Act of 1989 results in an ex
post facto application of punishment and violates the federal and state constitutions.

               In response, the state posits that the defendant has failed to state a claim for habeas
corpus relief. Additionally, the state argues that the petitioner’s claim is dependent upon facts that
do not appear on the face of the record. The state argues that the present 40-year sentence was
authorized by both the 1982 and the 1989 Acts. As we shall explain, we agree with the state’s
argument that habeas corpus relief is not available to the petitioner.

                                        III. Legal Principles.

A. Standard of Review.

                The legal issues raised in a habeas corpus proceeding are questions of law, and our
review of questions of law is de novo. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000) (“[W]hether
to grant the petition [for habeas corpus relief] is a question of law that we review de novo.”); State
v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (question of law reviewed on appeal de novo ).

B. Scope of the Writ of Habeas Corpus.

               Habeas corpus relief in Tennessee is available only when the aggrieved party’s
conviction is void or the sentence has expired. See Archer v. State, 851 S.W.2d 157, 164 (Tenn.


                                                 -3-
1993). The burden of proving that the judgment is void rests with the habeas corpus petitioner.
Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). The petitioner in the present case claims that his
sentence, and hence his conviction judgment, is void.

                 A void conviction is one which strikes at the jurisdictional integrity of the trial court.
Id.; see State ex rel. Anglin v. Mitchell, 575 S.W.2d 284, 287 (Tenn. 1979); Passarella v. State, 891
S.W.2d 619, 627 (Tenn. Crim. App. 1994). Because in this case the trial court apparently had
jurisdiction over the actus reus, the subject matter, and the person of the petitioner, the petitioner’s
jurisdictional issue is limited to the claim that the court was without authority to enter the judgment.
See Anglin, 575 S.W.2d at 287 (“‘Jurisdiction’ in the sense here used, is not limited to jurisdiction
of the person or of the subject matter but also includes lawful authority of the court to render the
particular order or judgment whereby the petitioner has been imprisoned.”); see also Archer, 851
S.W.2d at 164; Passarella, 891 S.W.2d at 627.

                The invalidity of the sentence itself, as well as the broader invalidity of the
conviction, results in a void judgment and is a sufficient basis for habeas corpus relief. See
Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (a void sentence, as well as a void
conviction, may result in a void judgment and be the subject of a habeas corpus proceeding). For
an illegal sentence to support a claim for habeas corpus relief, however, the illegality of the sentence
must be egregious to the point of voidness. Cox v. State, 53 S.W.3d 287, 292 (Tenn. Crim. App.
2001), overruled on other grounds by Michael R. Moody v. State, No. E2000-01131-SC-R11-PC,
__ S.W.3d __, slip op. at 3 (Tenn., Knoxville, Feb. 22, 2005). Thus, mere clerical errors in the terms
of a sentence may not give rise to a void judgment. See, e.g., Ronald W. Rice v. David Mills, No.
E2003-00328-CCA-R3-PC, slip op. at 3-4 (Tenn. Crim. App., Knoxville, Aug. 19, 2003) (trial court
erred in designating on the judgment form that the petitioner was sentenced under the 1982
sentencing law, when the 1989 law applied to Rice’s case; however, the 1989 law was actually
applied, and the resulting sentence was “not void and the petitioner [was] not entitled to habeas
corpus relief”), perm. app. denied (Tenn. 2004).

                Our supreme court in McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001), said that an
“illegal” sentence equates to a “jurisdictional defect.” Id. at 92. The burden of proving that a
judgment is void “entails showing that the jurisdictional defect appears in the record of the original
trial, thereby creating a void judgment.” Id. at 93. The petitioner must show via the face of the
judgment or the record of the proceedings upon which the judgment is rendered that the court lacked
jurisdiction to sentence the defendant. Stephenson, 28 S.W.3d at 911. In contrast, “‘[a] voidable
conviction or sentence is one which is facially valid and requires the introduction of proof beyond the
face of the record or judgment to establish its invalidity.’” McLaney, 59 S.W.3d at 93 (quoting Taylor
v. State, 995 S.W.2d 78, 93 (Tenn. 1999)). “[N]o evidentiary hearing shall justify the issuance of the
writ. Accordingly, where the allegations in a petition for writ of [habeas corpus] do not demonstrate
that the judgment is void, a trial court may correctly dismiss the petition without a hearing.” Id.
(citation omitted).




                                                   -4-
C. The Scope of Ex Post Facto Provisions.

               Constitutional provisions prohibiting the ex post facto application of laws address
“[e]very law that makes an action done before the passing of the law, and which was innocent when
done, criminal[,] and punishes such action[; e]very law that aggravates a crime, or makes it greater
than it was, when committed[; and e]very law that changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when committed.” Calder v. Bull, 3 U.S. 386, 390
(1798); see U.S. Const. art. I, § 10; see also Tenn. Const. art. I, § 11 (“[L]aws made for the
punishment of acts committed previous to the existence of such laws, and by them only declared
criminal are contrary to the principles of a free Government; wherefore no Ex post facto law shall be
made.”). The Tennessee Supreme Court has enumerated “five broad classifications” of ex post facto
laws:

                “1. A law which provides for the infliction of punishment upon a
                person for an act done which, when it was committed, was innocent.

                2. A law which aggravates a crime or makes it greater than when it
                was committed.

                3. A law that changes punishment or inflicts a greater punishment
                than the law annexed to the crime when it was committed.

                4. A law that changes the rules of evidence and receives [sic] less or
                different testimony than was required at the time of the commission
                of the offense in order to convict the offender.

                5. Every law which, in relation to the offense or its consequences,
                alters the situation of a person to his disadvantage.”

State v. Pearson, 858 S.W.2d 879, 882 (Tenn. 1993) (quoting Miller v. State, 584 S.W.2d 758, 761
(Tenn. 1979)).

                Accordingly, in determining whether an ex post facto violation exists
                in the context of sentencing, the critical question under both the
                United States and Tennessee Constitutions is whether the law changes
                the punishment to the defendant’s disadvantage, or inflicts a greater
                punishment than the law allowed when the offense occurred. The
                determination is made by comparing the standard of punishment
                prescribed by each statute, rather than the punishment actually
                imposed.

Id. at 883.



                                                 -5-
D. Conflict Between the Criminal Sentencing Reform Act of 1982 and that of 1989.

                Tennessee Code Annotated section 40-35-117(b) provides, “Unless prohibited by the
United States or Tennessee constitution, any person sentenced on or after November 1, 1989, for an
offense committed between July 1, 1982, and November 1, 1989, shall be sentenced” pursuant to the
Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-117(b) (2003). To avoid
conflict with constitutional ex post facto provisions, our supreme court has said, “[T]rial court judges
imposing sentences after the effective date of the 1989 statute, for crimes committed prior thereto,
must calculate the appropriate sentence under both the 1982 statute and the 1989 statute, in their
entirety, and then impose the lesser sentence of the two.” Pearson, 858 S.W.2d at 884.

                                             IV. Adjudication.

A. State of the Face of the Record.

              First, we address the state’s claim that the petitioner’s claim is not cognizable in
habeas corpus because it is dependent upon facts that are not apparent on the face of the record. We
cannot determine, however, that such is the case.

                Specifically, we cannot discern whether the critical, determining factors appear on
the face of the record. The petitioner’s claim of a constitutional violation rests upon whether the
l989 sentencing scheme is disadvantageous to the petitioner. See Pearson, 858 S.W.2d at 884 (“A
comparison of the two statutory sentencing schemes in their entirety is necessary to determine if the
l989 statute may be fairly characterized as disadvantageous to the defendant.”). For instance, if the
petitioner did in fact qualify for persistent-offender, Range II treatment via the l982 Act, he was
exposed to a minimum sentence of 28 years, a maximum of life, and a release eligibility of 40
percent. The l989 Act, accordingly, would probably not be disadvantageous to him, unless the same
factual bases that would justify Range II treatment via the 1982 Act would also warrant a career-
offender placement via the l989 Act. On the other hand, we perceive the possibility that, with all
facts available to a sentencing court, the petitioner could fall into Range I pursuant to the 1982 Act,
as he claims, but would nevertheless be liable to placement in a persistent-offender or career-
offender category pursuant to the l989 Act, in which event the latter might well be disadvantageous
to him.2

                The record in question is that of the third and final sentencing hearing – the one from
which no appeal was taken and of which no record exists in the archives of this court. The state may
be correct that the facts that might support the petitioner’s claims may be beyond the face of the

         2
           Critically, the two statutory schemes differ in their definition of prior criminal convictions that serve as criteria
for offender-range determination. Compare Tenn. Code Ann. § 40-35-106(a) (Supp. 1988) (repealed 1989) (requiring
that prior convictions utilized for range placement be based upon offenses that occurred within specified time frames
of the instant offense) with Tenn. Code Ann. §§ 40-35-106 through 108 (2003) (prescribing no maximum time periods
for the commission of the offenses giving rise to prior convictions). These differences apparently account for the
possibilities for variable results in comparing the two sentencing schemes in the present case.

                                                              -6-
existing record. On the other hand, the record of the third sentencing hearing may on its face instruct
 whether the petitioner was subject to sentencing as a persistent offender via the l982 Act and/or as
a persistent or career offender via the l989 Act. We simply cannot know on the present appellate
record, and apparently, neither could the habeas corpus court have known during its summary
consideration of the petition.

               Accordingly, we decline to approve the summary dismissal of the petition on the basis
that the underlying facts do not appear on the face of the record.

B. Cognizance of the Claim in Habeas Corpus.

              The determination that the underlying facts of the petitioner’s ex post facto claim
could appear on the face of the record does not, however, equate with error in the habeas corpus
court’s summary dismissal of the petition.

                Even if it appeared on the face of the sentencing record that the trial court did not
perform the Pearson dual comparison, the claim does not warrant habeas corpus relief. Rodney
Buford v. State, No. M1999-00487-CCA-R3-PC (Tenn. Crim. App., Nashville, July 28, 2000) (on
claim similar to that of the present defendant, court held that the ex post facto claim availed
petitioner Buford no relief in habeas corpus); David T. Redfern v. Bell, No. 01C01-9505-CC-00148,
slip op. at 3 (Tenn. Crim. App., Nashville, May 9, 1996) (on claim similar to that of the present
defendant, court held that the judgment was “facially valid and includes a lawful sentence pursuant
to the 1989 Act). In David T. Redfern, this court pointedly said, despite that the trial court did not
perform the “dual calculations required under Pearson,” the trial court possessed statutory
jurisdiction pursuant to the 1989 Act to impose the ten-year sentence. David T. Redfern, slip op. at
3. Likewise in the present case, the trial court was statutorily empowered to impose the 40-year
sentence pursuant to the 1989 Act, see Tenn. Code Ann. §§ 40-35-112(a)(1), (c)(1), -118 (2003), the
law in effect at the time of sentencing, see id. § 40-35-117(b).

                 In so holding, we are recognizing that the writ of habeas corpus is not, per se, a
vehicle for enforcing constitutional rights. See, e.g., Archer, 851 S.W.2d at 162 (in rejecting claim
that challenge to voluntariness of guilty plea may be presented in habeas corpus, court notes that the
writ of habeas corpus simply does not “redress . . . alleged constitutional errors in many cases”);
David Andrew Harvey v. State, No. 03C01-9510-CC-00307, slip op. at 2 (Tenn. Crim. App.,
Knoxville, June 28, 1996) (“Even if there were merit to the appellant’s claim of [violation of his
constitutional protection against] double jeopardy, such a claim renders the conviction voidable, not
void.”). The petitioner had an opportunity to address the ex post facto claim as an issue of
ineffective assistance of counsel via a petition for post-conviction relief. A petition for habeas
corpus relief is not a default procedure when the other apt procedures are not utilized for the purpose
of raising the constitutional issue.




                                                 -7-
                                            V. Conclusion.

                Because the petitioner’s collateral attack upon his 1992 conviction is not cognizable
as a basis for habeas corpus relief, the order of the criminal court is affirmed.




                                                      ___________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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