         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 10, 2007

                  JASPER LEE VICK v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Hardeman County
                       No. 06-02-0183    Joseph H. Walker, III, Judge


                   No. W2006-02172-CCA-R3-HC - Filed January 8, 2008


On appeal, Petitioner, Jasper Lee Vick, argues that the trial court erred in summarily dismissing his
petition for writ of habeas corpus relief. In his petition, Petitioner alleged that the trial court
improperly determined that Petitioner was a Range II, multiple offender, for the purpose of
determining the length of his sentences for especially aggravated kidnapping and sexual battery.
After review, we conclude that Petitioner has failed to state a ground for which habeas corpus relief
is available. Accordingly, we affirm the trial court’s dismissal of Petitioner’s petition for writ of
habeas corpus relief.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES and NORMA
MCGEE OGLE, JJ., joined.

Jasper Lee Vick, Whiteville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and James Pentecost, Jackson, Tennessee, for the
appellee, the State of Tennessee.

                                            OPINION

I. Background

        Following a jury trial, Petitioner was convicted of one count of especially aggravated
kidnapping, two counts of aggravated kidnapping, and one count of sexual battery. The trial court
merged Petitioner’s two convictions for aggravated kidnapping into his conviction for especially
aggravated kidnapping. At the sentencing hearing, the State requested that Petitioner be sentenced
as a Range II, multiple offender, based on Petitioner’s prior convictions. These convictions included
Petitioner’s 1973 conviction in South Carolina for the offense of assault and battery of a high and
aggravated nature. The trial court found that the South Carolina offense was analogous to a Class
C felony in Tennessee. See T.C.A. § 40-35-106(b)(5) (“Prior convictions include convictions under
the laws of any other state . . . which, if committed in this state, would have constituted an offense
cognizable by the laws of this state. In the event that a felony from a jurisdiction other than
Tennessee is not a named felony in this state, the elements of the offense shall be used by the
Tennessee court to determine what classification the offense is given.”).

        On appeal, a panel of this Court affirmed Petitioner’s convictions. State v. Jasper L. Vick,
No. W2005-00467-CCA-R3-CD, 2006 WL 722173, at *7 (Tenn. Crim. App., at Jackson, Mar. 22,
2006). We concluded, however, that the trial court had failed to conduct the statutory analysis
necessary to determine if Petitioner’s 1973 South Carolina conviction was analogous to a felony
offense under Tennessee’s law as it existed at the time the offense was committed. We thus reversed
the trial court’s judgments insofar as they imposed Range II sentencing, and remanded for a new
sentencing hearing. Id., 2006 WL 722173, at *11.

        Upon remand, the State introduced a certified copy of Defendant’s South Carolina indictment
for assault and battery with intent to kill, and a certified copy of the original arrest warrant and
affidavit. Based on these documents, the trial court again sentenced Petitioner as a Range II,
multiple offender. Petitioner again appealed the trial court’s range classification. Petitioner also
filed his petition for writ of habeas corpus relief raising the same issues concerning his range
classification.

        While Petitioner’s habeas corpus case was on appeal, a panel of this Court reversed the trial
court’s determination that Petitioner is a Range II, multiple offender, for sentencing purposes, and
remanded the matter for Petitioner to be sentenced as a Range I, standard offender. State v. Jasper
L. Vick, No. W2006-01606-CCA-R3-CD, 2007 WL 1836052 (Tenn. Crim. App., at Jackson, June
26, 2007), no perm. to appeal filed.

        The right to habeas corpus relief is available “only when ‘it appears upon the face of the
judgment or the record of the proceedings upon which the judgment is rendered’ that a convicting
court was without jurisdiction or authority to sentence a defendant, or that a defendant’s sentence
of imprisonment or other restraint has expired.” Summers v. State, 212 S.W.3d 251, 255 (Tenn.
2007) (quoting Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993)). In contrast to a post-conviction
petition, a habeas corpus petition is used to challenge void and not merely voidable judgments. Id.
at 255-56. A voidable judgment is one that is facially valid and requires proof beyond the face of
the record or judgment to establish its invalidity. Id. at 256; Dykes v. Compton, 978 S.W.2d 528,
529 (Tenn. 1998). A void judgment “is one in which the judgment is facially invalid because the
court lacked jurisdiction or authority to render the judgment.” Taylor v. State, 995 S.W.2d 78, 83
(Tenn.999); Dykes, 978 S.W.2d at 529.

       A petitioner bears the burden of proving a void judgment or illegal confinement by a
preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn.2000). A trial court may
summarily dismiss a petition for writ of habeas corpus without the appointment of counsel and
without an evidentiary hearing if there is nothing on the face of the judgment to indicate that the
convictions addressed therein are void. Passarella v. State, 891 S.W.2d 619 (Tenn. Crim. App.


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1994), superceded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-00266,
1998 WL 104492, at *1 n. 2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998).

       The determination of whether habeas corpus relief should be granted is a question of law.
Summers, 212 S.W.3d at 255; Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). Therefore, our
review is de novo with no presumption of correctness given to the findings and conclusions of the
lower court. Summers, 212 S.W.3d at 255; State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006).

        Petitioner argues that his sentence is void because the trial court improperly enhanced his
sentence on the basis of a 1973 conviction. Alternatively, Petitioner argues that the trial court’s use
of the 1973 conviction to enhance his sentence illegally “expanded the Court’s jurisdiction and
greatly increased the Judge’s authority by changing the statute.” Finally, Petitioner contends that the
trial court’s sentencing determinations violated due process principles thereby depriving the court
of “jurisdiction and authority.”

         Regardless of the various ways in which Petitioner phrases his habeas corpus claim, the thrust
of his claim rests on his contention that the trial court erred in again sentencing him as a Range II,
multiple offender. As noted above, Petitioner’s challenge to his range classification has been the
subject of two sentencing hearings and two direct appeals. Nonetheless, Petitioner’s claim that his
sentence as a Range II multiple offender is illegal is not cognizable in a habeas corpus proceeding.
Cecil Collins v. State, No. 03C01-9805-CR-00192, 1999 WL 544658, *1 (Tenn. Crim. App., at
Knoxville, July 28, 1999), perm. to appeal denied (Tenn. Nov. 22, 1999); George Edward French
v. Bell, No. 01C01-9801-CR-00022, 1999 WL 8277, *1 (Tenn. Crim. App., at Nashville, Jan. 12,
1999), perm. to appeal denied (Tenn. June 21, 1999). Furthermore, Tennessee Code Annotated
section 40-35-401(a) provides in part that “[t]here is no appellate review of the sentence in a post-
conviction or habeas corpus proceeding.” (Emphasis added).

        We find nothing appearing on the face of the judgment to indicate that the sentencing court
lacked the statutory authority or jurisdiction to render the judgment. See Dykes, 978 S.W.2d at 529
(citing Archer, 851 S.W.2d at 161).

       We note that on appeal, Petitioner has argued additional grounds for habeas corpus relief
which were not presented to the habeas court. Issues that were not presented to the habeas court will
not be considered for the first time on appeal. See State v. Turner, 919 S.W.2d 346, 356 (Tenn.
Crim. App. 1995) (observing that issues not raised or litigated in the trial court are waived).
Therefore, these issues are deemed waived.

                                          CONCLUSION

        Accordingly, we conclude that the trial court did not err in summarily dismissing Petitioner’s
petition for writ of habeas corpus.
                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE


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