        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 7, 2011

                  KENNETH RICH v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Lake County
                     No. 11CR9556      R. Lee Moore, Jr., Judge




                 No. W2011-00891-CCA-R3-HC - Filed July 25, 2012


Petitioner, Kenneth Rich, appeals from the habeas corpus trial court’s order dismissing,
without an evidentiary hearing, the petition for writ of habeas corpus relief filed by
Petitioner. After reviewing the entire record, we affirm the judgment of the habeas corpus
court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which A LAN E. G LENN and
J EFFREY S. B IVINS, JJ., joined.

Kenneth Rich, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, the State
of Tennessee.

                                         OPINION

        From the petition and the documents filed with it the following facts are gathered from
the record. Petitioner was indicted in the Overton County Criminal Court for the offense of
first degree murder. The offense occurred on December 17, 2000. Pursuant to a negotiated
plea agreement on February 5, 2004, Petitioner pled guilty to the lesser included offense of
second degree murder and received an agreed sentence of fifteen years. Using a uniform
judgment form, the trial court entered a judgment (hereinafter “March judgment”) over a
month later, on March 12, 2004. A part of the provisions regarding the sentence in the
March judgment was in direct contravention of an express provision of an applicable statute.
Specifically, the March judgment provided that Petitioner was sentenced as a standard
offender with a 30% release eligibility date (“RED”). The 30% RED was in direct
contravention of Tennessee Code Annotated sections 40-35-501(i)(1) and (2) which
mandated that for any second degree murder committed on or after July 1, 1995, “[t]here
shall be no release eligibility” and a person committing such offense “shall serve one
hundred percent (100%) of the sentence imposed by the court less sentence credits earned
and retained.” Tenn. Code Ann. § 40-35-501(i)(1).

        On May 25, 2004, the trial court entered a “corrected judgment” (hereinafter “May
judgment”) which is identical to the March judgment except the sentencing was changed
from 15 years as a standard 30% offender to a violent 100% offender. In addition, the
following sentences were added in the “special conditions” section of the May judgment:
“The original judgment in this case is being corrected because the box for ‘standard 30%’
was incorrectly checked on the original judgment. This corrected judgment contains a
checkmark in the box for ‘violent 100%.’” The corrected judgment was not signed by
Petitioner or by his trial counsel, and there is no certificate of service indicating that a copy
of the corrected judgment was sent to Petitioner or his counsel, notwithstanding the fact that
an Assistant District Attorney signed the corrected judgment.

        The petition for habeas corpus relief was filed on March 11, 2011, in Lake County
where Petitioner was incarcerated. Taken in complete context, and liberally construed, the
petition alleges four grounds for habeas corpus relief, which will be addressed by this Court
not in the order presented in the petition. The habeas corpus court, in a detailed and
extensive order, ultimately ruled that Petitioner stated no colorable claim for habeas corpus
relief.

       The four grounds for habeas corpus relief alleged by Petitioner are:

        - Petitioner was denied his right to a speedy trial on the charge of first
        degree murder.

        - Petitioner had ineffective assistance of counsel during the proceedings
        leading up to and including the guilty plea.

        - The guilty plea was not knowingly and voluntarily entered because of
        ineffective assistance of counsel and mental infirmity of Petitioner at the
        time of the guilty plea.

        - The sentence imposed in the March judgment was illegal and void and
        could not be modified by a subsequent “corrected judgment.”



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       Our supreme court has held that

       . . . the writ of habeas corpus will issue only in the case of a void judgment or
       to free a prisoner after his term of imprisonment or other restraint has expired.
       Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). Unlike a post-conviction
       petition, a habeas corpus petition is used to challenge void and not merely
       violable judgments. Id. A voidable judgment is one that is facially valid and
       requires proof beyond the face of the record or judgment to establish its
       invalidity. Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). A void
       judgment is one that is facially invalid because the court did not have the
       statutory authority to render such judgment. Id.

Summers v. State, 212 S.W.3d 251, 255-56 (Tenn. 2007).

        As to all of the first three grounds for relief listed above, it is clear that the judgment
would only be voidable and not void. Proof of a denial of a speedy trial and ineffective
assistance of counsel cannot be ascertained merely from the judgment or records of the
proceedings without additional evidence being presented. Accordingly, the habeas corpus
court clearly committed no error in dismissing the habeas corpus petition as to these grounds.
Furthermore, Petitioner is not entitled to habeas corpus relief as to the fourth ground which
alleges that his judgment is void because of an illegal sentence in the March judgment, which
could not be rectified in the May judgment. Our supreme court has held that a trial court can
correct an illegal sentence at any time through the habeas corpus procedure. Cantrell v.
Easterling, 346 S.W.3d 445, 453 (Tenn. 2011) (citing State v. Burkhart, 566 S.W.2d 871,
873 (Tenn. 1978) and Moody v. State, 160 S.W.3d 512, 516 (Tenn. 2005)). A sentence in
a judgment which designates a RED that is specifically prohibited by statute is an “illegal
sentence.” Cantrell, 346 S.W.3d at 452. In Cantrell our supreme court noted that if that
illegal sentence was the result of “a material condition of a plea agreement, then the
[petitioner] must be given the opportunity (a) to withdraw his plea and stand trial on the
original charges or (b) to enter into a legal plea agreement.” Id. at 456.

       However, prior to the filing of the habeas corpus petition by Petitioner in this case,
our General Assembly amended Tennessee Code Annotated section 29-21-101, effective
June 11, 2009. See Cantrell, 346 S.W.3d at 456, n. 11. That statute provides the grounds for
the writ of habeas corpus and states,

         29-21-101. Grounds for writ.

                (a) Any person imprisoned or restrained of liberty, under any
         pretense whatsoever, except in cases specified in subsection (b) and in cases

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        specified in § 29-21-102, may prosecute a writ of habeas corpus, to inquire
        into the case of such imprisonment and restraint.

               (b) Persons restrained of their liberty pursuant to a guilty plea and
        negotiated sentence are not entitled to the benefits of this writ on any claim
        that:

                       (1) The petitioner received concurrent sentencing
                where there was a statutory requirement for consecutive
                sentencing;

                        (2) The petitioner’s sentence included a release
                eligibility percentage where the petitioner was not entitled to
                any early release; or

                        (3) The petitioner’s sentence included a lower release
                eligibility percentage than the petitioner was entitled to under
                statutory requirements.

Tenn. Code Ann. § 29-21-101.

        Essentially, the General Assembly stated that three categories of alleged grounds for
relief, whenever a person is sentenced pursuant to a guilty plea and a negotiated sentence,
cause the judgment to be merely voidable and not void. The petition in this case was filed
after the effective date of the amendment to Tennessee Code Annotated section 29-21-101,
and therefore that new statutory provision acts to deny Petitioner relief on his fourth alleged
ground for relief. See generally Cantrell, 346 S.W.3d at 456, n. 11. Petitioner is not entitled
to relief in this appeal.

                                      CONCLUSION

       The judgment of the habeas corpus court is affirmed.

                                                    ___________________________________
                                                    THOMAS T. WOODALL, JUDGE




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