         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


                  RONALD MCCRAY v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Fayette County
                            No. 3873 J. Weber McCraw, Judge



                     No. W2006-00053-CCA-R3-HC - Filed April 21, 2006



The Petitioner, Ronald McCray, appeals the lower court’s denial of his petition for habeas corpus
relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule
20, Rules of the Court of Criminal Appeals. The Petitioner failed to file a timely notice of appeal
and this Court cannot conclude that justice requires waiver of this jurisdictional requirement.
Accordingly, the above-captioned appeal is dismissed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the
Court of Criminal Appeals

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN AND J.C.
MCLIN , JJ. joined.

Ronald McCray, pro se.

Paul G. Summers, Attorney General & Reporter; Elizabeth Bingham Marney, Assistant Attorney
General, for the appellee, the State of Tennessee.



                                   MEMORANDUM OPINION


        The Petitioner Ronald McCray entered a guilty plea on August 2, 1993, to one count of
second degree murder. The trial court imposed a sentence of sixty years in the Department of
Correction with release eligibility set at thirty percent. The Petitioner sought post-conviction relief,
alleging that the sentence imposed was illegal. See Ronald Lature McCray v. State, No. 02C01-
9412-CC-00277, 1995 WL 568388, *1 (Tenn. Crim. App., at Jackson, Sept. 27, 1995). The trial


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court denied relief. On appeal, however, a panel of this Court determined that “[b]ecause the
sentence proposed in the plea agreement exceeds the statutory limits, the trial court must reject the
original, recommended sentence.” Ronald Lature McCray v. State, No. 02C01-9412-CC-00277,
1995 WL 568388, *2. This Court “set aside this sentence as illegal and remand[ed] the cause to the
trial court.” Id. On April 16, 1996, a judgment form was entered as to the Petitioner’s plea to one
count of second degree murder and reflecting a sentence of forty years with a forty-five percent
release eligibility status. The Petitioner sought post-conviction relief on August 7, 1998. See
Ronald Lature McCray v. State, No. 02C01-9809-CC-00292, 1999 WL 314773, *1 (Tenn. Crim.
App., at Jackson, May 20, 1999), perm. to appeal denied, (Tenn. Oct. 11, 1999). Post-conviction
relief was dismissed as being time-barred. Id. The Petitioner is currently confined at West
Tennessee State Penitentiary in Henning, Tennessee

        On October 17, 2005, the Petitioner a petition for habeas corpus relief in the Fayette County
Circuit Court. As grounds for relief, the Petitioner alleged that the judgment of conviction is void
due to the illegality of the sentence imposed and due to the ineffective assistance of trial counsel.
Specifically, the Petitioner alleged that the “[S]tate fail[ed] to file a notice of enhancement ten days
prior to trial as required by Tenn. R. Crim. P. 12.3 . . .” and that the Petitioner “had no prior felony
convictions. . . .” The trial court summarily dismissed the petition by order entered October 25,
2005. In dismissing the petition, the trial court found “that the sentence is not illegal , and the
petition fails to state a claim upon which relief may[]be granted.” A notice of appeal document was
filed with the trial court clerk on January 4, 2006. The document reflects that the Petitioner makes
inquiry as to why he did not receive notice of the dismissal until January 4, 2006.

         The State has filed a motion requesting affirmance of the lower court’s dismissal pursuant
to Rule 20, Rules of the Tennessee Court of Criminal Appeals. Within its motion, the State notes
that the notice of appeal document was not timely filed by the Petitioner. Notwithstanding, the State
acknowledges that this Court may waive the timely filing requirement. Again, the trial court
dismissed the petition on October 25, 2005. The notice of appeal document was not filed until
January 4, 2006. Pursuant to Rule 4, Tennessee Rules of Appellate Procedure, a notice of appeal
document shall be filed within thirty days after entry of the judgment from which an appeal is sought.
This requirement, however, is not jurisdictional in criminal cases. This Court may review untimely
appeals and determine whether the notice requirement should be waived. Tenn. R. App. P. 4.
Waiver is not automatic and should only occur when “the interest of justice” mandates waiver. To
hold otherwise, by summarily granting waiver whenever confronted with untimely notices, renders
the thirty-day requirement a legal fiction and circumvents the rule. See Michelle Pierre Hill v. State,
No. 01C01-9506-CC-00175, 1996 WL 63950, *1 (Tenn. Crim. App., at Nashville, Feb. 13, 1996),
perm. to appeal denied, (Tenn. May 28, 1996).

        Although the Petitioner’s filing was pro se, Rule 4 does not relieve pro se appellants from
the thirty-day notice requirement. Thus, the Petitioner’s pro se status remains but one factor in
deciding whether the “interest of justice” mandates waiver of the thirty-day notice requirement. In
determining whether waiver is appropriate, this Court shall consider the nature of the issues for
review, the reasons for the delay in seeking relief, and other relevant factors presented in each case.


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        We begin our review by noting that the Petitioner failed to file a motion to excuse the late-
filed notice of appeal document with this Court. However, the notice of appeal document reflects
that the Petitioner may not have received notice of the trial court’s order dismissing the petition.
Next, we note that, on appeal, the Petitioner concedes that the structure of his hybrid guilty plea is
not illegal. Additionally, a prior panel of this Court held that the forty-year range III sentence was
not illegal. See Ronald Lature McCray v. State, No. 02C01-9809-CC-00292, at *1.

        If considered as a petition seeking habeas corpus relief, the petition was filed in the wrong
court. See T.C.A. § 29-21-105 (petition for habeas corpus must be made to court most convenient
to the location of the petitioner). Moreover, the petition failed to state a claim upon which habeas
corpus relief can be granted. Habeas corpus relief only addresses detentions that result from void
judgments or expired sentences. See Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). A
judgment is void “only when ‘[i]t 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.” Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004) (quoting State v. Ritchie, 20
S.W.3d 624, 630 (Tenn. 2000) (citations omitted)). The Petitioner does not contend that his
sentences have expired, thus, he is only entitled to relief if his judgments are void. On appeal, he
contends that the sentence is legal and, his remaining issue, that counsel was ineffective would not
render the conviction void, only voidable.

        Finally, if treated as a petition for post-conviction relief, the petition similarly fails. First,
the petition is time-barred. See T.C.A. § 40-30-102(a). Next, the Petitioner is thus barred by the
single-petition provision from attacking the same judgment in a second or subsequent post-
conviction proceeding. See T.C.A. § 40-30-102(c).

         For the reasons stated herein, including our conclusion that the Petitioner would not be
entitled to relief if waiver were applied, this Court concludes that justice does not require the waiver
of the timely filing of the notice of appeal document. Accordingly, the appeal is dismissed.




                                                         ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE



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