IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 28, 2004

JAMES D. L. PERRY v. HOWARD CARLTON, WARDEN

 Appeal from the Criminal Court for Johnson County

No. 4345 Lynn W. Brown, Judge

No. E2004-01000-CCA-R3-HC - Filed November 22, 2004 

The petitioner, James D. L. Perry, appeals pro se from the Johnson County Criminal Court’s

dismissal of his petition for habeas corpus relief. The petitioner attacks his two convictions for

possession with intent to sell one-half or more grams of cocaine within one thousand feet of a school

for which he received concurrent twenty-year terms. He contends that the first cocaine conviction

is void because he was entrapped, that the second cocaine conviction is void because he was

convicted of a crime for which he was not indicted, and that both convictions are void because he

was convicted under a statute which he claims was inapplicable. We affirm the trial court’s

dismissal of the petition.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES and JOHN

EVERETT WILLIAMS, JJ., joined.

James D. L. Perry, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Kathy D. Aslinger, Assistant Attorney

General, for the appellee, State of Tennessee.

OPINION

A Johnson County jury convicted the petitioner of two counts of possession with intent to

sell one-half or more grams of cocaine within one thousand feet of a school, a Class A felony, and

one count of possession of marijuana, a Class A misdemeanor. The convictions were affirmed on

appeal. See State v. James David Lamor Perry, No. E1999-00271-CCA-R3-CD, Sullivan County

(Tenn. Crim. App. Sept. 5, 2000). The petitioner filed a habeas corpus petition alleging that his

cocaine related convictions and resulting sentences were void, and the trial court summarily

dismissed the petition. On appeal, the petitioner contends that the trial court erred in dismissing his

petition. The state contends that the trial court’s dismissal was proper because the petitioner was
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properly indicted, that entrapment would only render the petitioner’s conviction voidable, and that

the petitioner already litigated the statutory issue on direct appeal. We agree with the state. 

The trial court may summarily dismiss a petition for writ of habeas corpus relief when the

petitioner does not state a cognizable claim. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim.

App. 1994). A petition for the writ of habeas corpus may only be brought if the judgment is void

or the sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). However, if the

claimed illegality renders the judgment or sentence voidable, rather than void, no relief can be

granted. Id. at 161. “If the face of the record shows that the court did not have jurisdiction, then the

judgment is void.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). Thus, we examine the

record to determine whether the judgments are void.

The petitioner contends that his first cocaine conviction is void because of entrapment.

Entrapment, however, would only render the defendant’s convictions voidable, rather than void.

Archer, 851 S.W.2d at 161. Because the trial court had jurisdiction to sentence the defendant after

the jury found him guilty, his sentence is not void. See Dykes, 978 S.W.2d at 529. 

The petitioner next contends that his second cocaine conviction is void because he was not

properly indicted. The petitioner relies on the original presentment dated November 19, 1997, in

which the petitioner was indicted for one count of possession with intent to sell one-half or more

grams of cocaine within one thousand feet of a school, a Class A felony, and one count of possession

with intent to sell one-half or more grams of cocaine, a Class B felony. While the petitioner is

correct that the original presentment does not support his second Class A felony conviction, he failed

to disclose that the original presentment was amended.

We may take judicial notice of the petitioner’s direct appeal record in this case. See State

ex rel. Wilkerson v. Bomar, 376 S.W.2d 451, 453 (Tenn. 1964). We note that the direct appeal

record contains an amended presentment dated January 20, 1999, which changed “Count Three” of

the original presentment from possession with intent to sell one-half or more grams of cocaine to

possession with intent to sell one-half or more grams of cocaine within one thousand feet of a school.

This issue is without merit.

Finally, the petitioner contends that his convictions are void, arguing that the Drug-Free

School Zone Act only applies during normal school hours. He asserts that his violation occurred

after normal school hours. We note that the petitioner fully addressed this issue on direct appeal.

See Perry, slip op. at 9 (“This court has rejected this argument before, and we reject it here as well.

There is nothing in the language of the statute that indicates that the Legislature intended § 39-17-

432 to have the limited application that Defendant suggests.”). Because this court has previously

determined this issue, it is without merit. Based upon the foregoing and the record as a whole, we

affirm the judgment of the trial court.

___________________________________ 

JOSEPH M. TIPTON, JUDGE