        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               September 14, 2010 Session

                RODNEY JEFFRIES v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                     No. P-197037   James C. Beasley, Jr., Judge




              No. W2009-02188-CCA-R3-HC - Filed November 17, 2010


The petitioner, Rodney Jeffries, appeals the habeas corpus court’s order summarily
dismissing his “Petition for Writ of Habeas Corpus or in the Alternative, Petition to Re-open
Petition for Post-Conviction Relief.” Following our review of the record and applicable law,
we affirm the habeas court’s denial of relief.

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

J.C. M CL IN, J., delivered the opinion of the court, in which A LAN E. G LENN and D. K ELLY
T HOMAS, J R., JJ., joined.

Robert L. Parris, Memphis, Tennessee, for the appellant, Rodney Jeffries.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney
General; William L. Gibbons, District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

        A grand jury indicted the petitioner on one count of criminal attempt aggravated
robbery, a Class C felony; one count of aggravated robbery, a Class B felony; two counts of
aggravated assault, Class C felonies; two counts of aggravated burglary, Class C felonies;
one count of especially aggravated kidnapping, a Class A felony; and one count of murder
in the first degree in the perpetration of a felony. On February 3, 1997, the petitioner entered
an open plea of guilty to all charges. The trial court held a sentencing hearing on May 1,
1997. The court sentenced the petitioner as a Range I, standard offender, as follows: (1)
three years in the local workhouse for the criminal attempt aggravated robbery conviction;
(2) eight years in the Tennessee Department of Correction for the aggravated robbery
conviction; (3) three years in the local workhouse for the aggravated assault convictions; (4)
three years in the local workhouse for the aggravated burglary convictions; (5) fifteen years
in the department of correction for the aggravated kidnapping conviction; and (6) life
imprisonment for the first degree murder conviction. The judge ordered that the petitioner
serve his sentences concurrently for an effective life sentence.

       On June 1, 2009, the petitioner filed a “Petition for Writ of Habeas Corpus, or, in the
Alternative; Petition to Re-Open Post-Conviction.” In the petition he alleges that the
Tennessee Department of Correction is illegally restraining him of his liberty. He claims that
his confinement is illegal because the judgment for his plea of guilty to the first degree
murder charge “clearly” shows that his life sentence, which the trial court indicated that the
petitioner serve at 30%, is a void sentence under Tennessee law. The court heard oral
arguments on September 17, 2009, regarding whether it should grant the petitioner a hearing
on the merits of his petition. In its order denying a hearing on the merits, the court found that
the grounds alleged by the petitioner were without merit and did not entitle him to habeas
corpus relief. The petitioner now brings this appeal arguing that his sentence is void on its
face because it was in “direct contravention of the governing law at that time.” The
petitioner alleges that his sentence is void because at the time of his sentencing the statute
governing his case mandated that the court could not sentence defendants convicted of first
degree murder to serve less than 85% of their sentence. See Tenn. Code Ann. § 40-35-501(i).

       Initially, we note that the determination of whether to grant habeas corpus relief is a
question of law. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001), verruled on other grounds
by Summers v. State, 212 S.W.3d 251 (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 the right to seek habeas
corpus relief. Tennessee Code Annotated sections 29-21-101 through 29-21-130 codify the
applicable procedures for seeking a writ. However, the grounds upon which a court may
issue a writ of habeas corpus are very narrow. 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 of the proceedings upon which the judgment was rendered that a court was
without jurisdiction to convict or sentence the defendant or that the defendant is still
imprisoned despite the expiration of his sentence. See Summers v. State, 212 S.W.3d 251,
255 (Tenn. 2007); Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833
S.W.2d 60, 62 (Tenn. 1992). The purpose of a habeas corpus petition is to contest void and
not merely voidable judgments. Archer, 851 S.W.2d at 163. A void judgment is a facially
invalid judgment, clearly showing that a court did not have statutory authority to render such
judgment; whereas, a voidable judgment is facially valid, requiring proof beyond the face of

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the record or judgment to establish its invalidity. See Taylor, 995 S.W.2d at 83. The burden
is on the petitioner to establish by a preponderance of the evidence “that the sentence is void
or that the confinement is illegal.” Wyatt, 24 S.W.3d at 322. Moreover, a court may
summarily dismiss a petition for habeas corpus relief, without the appointment of counsel and
without an evidentiary hearing, if the petitioner does not state a cognizable claim. See
Summers, 212 S.W.3d at 260; Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004).

        For an illegal sentence claim to support a claim for habeas corpus relief, the illegality
of the sentence must be egregious to the point of voidness, and mere clerical errors in the
terms of a sentence may not give rise to a void judgment. Cox v. State, 53 S.W.3d 287, 292
(Tenn. Crim. App. 2001), overruled on other grounds by Michael R. Moody v. State, 160
S.W.3d 512, 516 (Tenn. 2005); see e.g., Ronald W. Rice v. David Mills, No.
E2003-00328-CCA-R3-PC, 2003 WL 21972930 at *3-4 (Tenn. Crim. App. at Knoxville,
Aug. 19, 2003) (concluding that the petitioner was not entitled to habeas corpus relief and
the resulting sentence was not void when the trial court erroneously designated on the
judgment form that it sentenced the petitioner under the 1982 sentencing law when the 1989
law was applicable to the petitioner’s case, and the court actually applied that 1989 law).
Our supreme court in McLaney said that an “illegal” sentence equates to a “jurisdictional
defect.” McLaney, 59 S.W.3d at 92. However, in McConnell v. State, 12 S.W.3d 795, 798
(Tenn. 2000), the supreme court said that issues of “offender classification and release
eligibility [are] non-jurisdictional.”

        The petitioner relies on McLaney for the proposition that a sentence issued in
contravention of a statute “is subject to being set aside at any time, even if it has become
final.” McLaney, 59 S.W.3d at 94 (quoting State v. Mahler, 735 S.W.2d 226, 227-28 (Tenn.
1987)). The petitioner contends that his judgments are facially void because they reflect that
the trial court sentenced him at 30% release eligibility, in violation of Tennessee Code
Annotated section 40-35-501(i), which requires him to serve 100% of his sentence without
any credit or early release. The statute states, in pertinent part:

       (i)(1)There shall be no release eligibility for a person committing an offense,
       on or after July 1, 1995, that is enumerated in subdivision (i)(2). The person
       shall serve one hundred percent (100%) of the sentence imposed by the court
       less sentence credits earned and retained. However, no sentence reduction
       credits authorized by § 41-21-236, or any other provision of law, shall operate
       to reduce the sentence imposed by the court by more than fifteen percent
       (15%).

       (2) The offenses to which subdivision (i)(1) applies are:
              (A) Murder in the first degree . . . .

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Tenn. Code Ann. § 40-35-501(i)(1), (2).

        The petitioner is not entitled to habeas corpus relief. It is true that the petitioner’s first
degree murder sentence contravenes the statute; however, the petitioner is not entitled to
relief on that basis. The petitioner’s case is distinguishable from McLaney in that the
defendant in McLaney entered his guilty plea in exchange for a concurrent sentence which
was, in actuality, illegal. The McLaney court implied that, if a court were to set aside the
judgment on remand, it would be because the petitioner’s guilty plea was based on a sentence
that the defendant could not legally fulfill. McLaney, 59 S.W.3d at 95. Here, the petitioner
entered an open guilty plea, and his sentences were not part of the negotiation or settlement.
What has occurred here is a mere clerical error which the court should remedy by entry of
corrected judgments pursuant to Tennessee Rule of Criminal Procedure 36. The failure of
the trial court to properly mark the judgment did not deprive the petitioner of any expectation
as to release eligibility because none ever existed. There was no agreed upon sentence. The
trial court told the petitioner that he may never get paroled and stated, “I don’t want you to
think that you will get parole after 25 years because under the current law you can’t even get
parole with life with parole.” The petitioner said that he understood what the trial judge had
explained to him regarding sentencing. Moreover, the trial court’s error did not change the
fact that the law required the petitioner to serve 100% of his sentence due to his classification
as an offender convicted of murder in the first degree. The calculation of the petitioner’s
sentence was an operation of law, and thus, the judgment’s notation that the petitioner must
serve 30% of his sentence does not create a sentence which is egregiously illegal to the point
of voidness. The petitioner’s case is sharply distinguished from a case in which the petitioner
is extended a plea agreement containing an illegal sentencing provision and accepted the
negotiated sentence to his detriment. Therefore, the appropriate remedy is not to void the
judgment but rather to amend the judgment to comply with the statute.

        The petitioner’s motion also requested that we re-open his petition for post-conviction
relief. We conclude that, based on Tennessee Code Annotated Section 40-30-117(a), the
petitioner has shown no circumstances to justify re-opening the petition for post-conviction
relief.

                                            Conclusion

       Based on the foregoing, we affirm the denial of habeas corpus relief.




                                                       J.C. McLIN, JUDGE

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