                                                                                            07/03/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs June 26, 2018

           CLARK DERRICK FRAZIER v. RANDY LEE, WARDEN

                 Appeal from the Criminal Court for Johnson County
                         No. CC-18-CR-3 Lisa Rice, Judge


                             No. E2018-00323-CCA-R3-HC


The Petitioner, Clark Derrick Frazier, appeals the Johnson County Criminal Court’s
summary dismissal of his petition for a writ of habeas corpus from his 2007 conviction for
second degree murder and his twenty-five-year sentence. The Petitioner contends that the
habeas corpus court erred by dismissing his petition. We affirm the judgment of the habeas
corpus court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Clark Derrick Frazier, Mountain City, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; and Ken C. Baldwin, District Attorney General, for the appellee, State of
Tennessee.

                                         OPINION

        A Robertson County grand jury returned an indictment charging the Petitioner with
first degree premeditated murder, first degree felony murder, and assault. Pursuant to a
negotiated plea agreement, the Petitioner pleaded guilty to second degree murder and
received a twenty-five-year sentence. The Petitioner sought post-conviction relief on the
ground that he entered an involuntary and unknowing guilty plea as a result of the ineffective
assistance of counsel. The post-conviction court denied relief, and this court affirmed the
post-conviction court’s determinations. See Clark Derrick Frazier v. State, No. M2008-
01303-CCA-R3-PC, 2009 WL 1272278 (Tenn. Crim. App. May 5, 2009), perm. app. denied
(Tenn. Aug. 31, 2009). The Petitioner also sought error coram nobis relief on the basis that
he would not have pleaded guilty had he known the results of the DNA analyses performed
on items found at the crime scene. Our supreme court denied relief and determined that
petitions for error coram nobis relief were not applicable in cases resulting in guilty pleas.
See Frazier v. State, 495 S.W.3d 246 (Tenn. 2016).

        On January 11, 2018, the Petitioner filed the instant petition for a writ of habeas
corpus, alleging that his conviction was void because the factual basis supporting his guilty
plea and conviction was “insufficient or erroneous” pursuant to Tennessee Criminal
Procedure Rule 11(b)(3), that a transcript of the guilty plea hearing did not contain “a
recitation of the State’s factual basis” supporting his conviction, and that his guilty plea was
involuntarily and unknowingly entered. The habeas corpus court summarily dismissed the
petition on the basis that the petition failed to state a colorable claim for relief. This appeal
followed.

        The Petitioner contends that the habeas corpus court erred by summarily dismissing
his petition. He argues that his conviction is void because the State did not present a
recitation of the factual basis supporting his guilty plea at the submission hearing. The State
responds that the habeas corpus court properly dismissed the petition because the Petitioner
failed to state a colorable claim for relief. We agree with the State.

        Habeas corpus relief is generally available to “[a]ny person imprisoned or restrained
of liberty” whose judgment is void or whose sentence has expired. T.C.A. § 29-21-101
(2012); see Tucker v. Morrow, 335 S.W.3d 116, 119-20 (Tenn. Crim. App. 2009). A
petitioner has the burden of proving by a preponderance of the evidence that a judgment is
void or that a sentence has expired. State v. Davenport, 980 S.W.2d 407, 409 (Tenn. Crim.
App. 1998). A void judgment exists if it appears from the face of the judgment or the record
that the convicting court lacked jurisdiction or authority to sentence the defendant or that the
defendant’s sentence has expired. Archer, 851 S.W.2d at 161; see Moody v. State, 160
S.W.3d 512, 515 (Tenn. 2005). In contrast, “[a] voidable judgment is one that is facially
valid and requires proof beyond the face of the record or judgment to establish its invalidity.”
Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007); see State v. Ritchie, 20 S.W.3d 624,
630 (Tenn. 2000).

       Post-conviction relief, not habeas corpus relief, is the appropriate avenue of relief for
certain voidable judgments. T.C.A. § 40-30-103 (2012); see Vaughn v. State, 202 S.W.3d
106, 115 (Tenn. 2006). A habeas corpus court may dismiss a petition for relief without an
evidentiary hearing or the appointment of counsel when the petition fails to state a
cognizable claim. Yates v. Parker, 371 S.W.3d 152, 155 (Tenn. Crim. App. 2012); see
T.C.A. § 29-21-109 (2012). The question of whether habeas corpus relief should be granted
is a question of law, and this court will review the matter de novo without a presumption of
correctness. Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005).
       The transcript of the guilty plea hearing is not included in the appellate record.
However, this court stated in its opinion affirming the post-conviction court’s determinations
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that the transcript of the guilty plea hearing did not contain a recitation of the factual basis
supporting the Petitioner’s guilty plea and conviction for second degree murder. See Clark
Derrick Frazier, 2009 WL 1272278, at *1. This court stated, though, that the “trial court
observed during the hearing that a sufficient factual basis had been developed during pre-trial
hearings.” Id. In the opinion affirming the denial of error coram nobis relief, this court
determined that the transcript from a second preliminary hearing provided a sufficient basis
for the Petitioner’s guilty pleas. See Clark Derrick Frazier, 2016 WL 4040383, at *1.

        In any event, the Petitioner does not cite to any legal authority supporting the
conclusion that the State’s failure to present an adequate factual basis supporting his guilty
plea and conviction at the submission hearing rendered the judgment void. The judgment
before this court is facially valid, and additional proof is required to establish any invalidity.
See Summers, 212 S.W.3d at 256; Ritchie, 20 S.W.3d at 630. Therefore, although the
Petitioner’s allegation maybe factually accurate, he is not entitled to habeas corpus relief.
See Stephanie D. Cooley v. State, No. M2013-00205-CCA-R3-HC, 2013 WL 5975135, at *4
(Tenn. Crim. App. Nov. 8, 2013) (stating that even if true, the allegation that a factual basis
does not support a conviction offense would result in a voidable judgment, not a void
judgment), perm. app. denied (Tenn. Apr. 10, 2014). We conclude that the Petitioner has
failed to state a colorable claim for habeas corpus relief. He is not entitled to relief on this
basis.

       In consideration of the foregoing and the record as a whole, we affirm the judgment of
the habeas corpus court.




                                             ______________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




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