IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 7, 2012

FRED SMITH v. HENRY STEWARD, WARDEN

Direct Appeal from the Circuit Court for Lake County

No. 12-CR-9685 R. Lee Moore, Jr., Judge

No. W2012-00633-CCA-R3-HC - Filed November 19, 2012

The Petitioner, Fred Smith, appeals the Lake County Circuit Court’s dismissal of his petition

for a writ of habeas corpus, arguing that his fifty-year sentence for second degree murder is

illegal. Upon review of the record and the parties’ briefs, we conclude that the habeas corpus

court properly dismissed the petition.

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

NORMAMCGEEOGLE,J., delivered the opinion of the Court, in which THOMAST.WOODALL,

and ROGER A. PAGE, JJ., joined.

Fred Smith, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; and C. Phillip Bivens, District Attorney General; for the appellee, State of

Tennessee.

OPINION

I. Factual Background

The Petitioner was originally charged with first degree murder. On March 2, 1989,

he pled guilty to second degree murder. Pursuant to the 1982 Sentencing Act, second degree

murder was classified as a Class X felony and carried a range of punishment from ten years

to life. See Tenn. Code Ann. §§ 39-2-211(b), -212 (1982) (repealed 1989). According to the

judgment, the Petitioner was sentenced as a Range I, standard offender to confinement “for

a period of not less than 50 yrs at 30% and not more than 50 yrs at 30%.”

On April 30, 1999, the Petitioner filed a pro se habeas corpus petition, arguing that
he had bargained for a fifteen-year-sentence, which had expired on October 21, 1998. The

circuit court dismissed the petition, and this court affirmed the lower court. See Fred E.

Smith v. State, No. 02C01-9906-CC-00185, 1999 Tenn. Crim. App. LEXIS 1084 (Jackson,

Oct. 28, 1999). On June 9, 2006, the Petitioner filed a second petition for writ of habeas

corpus, alleging that “the language set forth in the judgment of conviction reflects a fifteen

year sentence in accordance with the 1982 Sentencing Act and not a fifty-year sentence.”

State v. Fred E. Smith, No. W2006-02504-CCA-R3-HC, 2007 Tenn. Crim. App. LEXIS 645,

at *5 (Jackson, Aug. 13, 2007). Once again, this court affirmed the lower court’s dismissal

of the petition. Id. at *8. In its analysis, this court, relying on Hoover v. State, 215 S.W.3d

776 (Tenn. 2007), noted that although the Petitioner’s fifty-year sentence exceeded the

maximum sentencing range for a Range I offender, it was not illegal because it fell within

the maximum punishment range of sixty years authorized for Class X felony offenses such

as second degree murder. Id. at **6-8.

On February 13, 2012, the Petitioner filed his third and current petition for writ of

habeas corpus. In the petition, he argued that his thirty percent release eligibility limited his

sentence to fifteen years and, therefore, that his sentence had expired. In the alternative, he

argued that his fifty-year sentence was illegal because the 1982 Sentencing Act mandated a

maximum sentence of thirty-five years for a Range I, standard offender convicted of second

degree murder and because his thirty percent release eligibility improperly converted his

determinant fifty-year sentence into an indeterminant sentence.

In a written order, the habeas corpus court stated that “[t]hese are the same issues

raised in his prior petitions for habeas corpus relief.” Nevertheless, the court stated that the

Petitioner’s fifty-year sentence was not illegal because “[a] plea-bargain sentence is legal so

long as it does not exceed the maximum punishment authorized for the plea offense” and

because “a knowing and voluntary guilty plea waives any irregularity as to the offender

classification or release eligibility.” The habeas corpus court denied the petition for relief.

II. Analysis

On appeal, the Petitioner acknowledges that the issue regarding his fifteen-year

sentence and the expiration of that sentence has been previously determined. However, he

contends that the remaining two issues have not been raised in his previous petitions.

Therefore, he maintains that his fifty-year sentence is illegal because the 1982 Sentencing

Act mandated a maximum sentence of thirty-five years for a Range I, standard offender

convicted of second degree murder and because histhirty percent release eligibility converted

his determinant fifty-year sentence into an indeterminant sentence. The State does not

address the Petitioner’s claims, stating that the record “clearly [shows] that the legality of the

defendant’s sentence and its nature as a determinate sentence have clearly been previously

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litigated.”

Initially, we note that the determination of whether to grant habeas corpus relief is a

question of law. Summers v. State, 212 S.W.3d 251, 255 (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 an accused the right to

seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). However,

“[s]uch relief is available only when it appears from the face of the judgment or the record

of the proceedings that a trial court was without jurisdiction to sentence a defendant or that

a defendant’s sentence of imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d

at 322; see also Tenn. Code Ann. § 29-21-101.

Upon a careful review of this court’s opinions from the Petitioner’s 1989 and 2006

habeas corpus petitions, we are constrained to agree with the Petitioner that he did not raise

these specific claims previously. Nevertheless, in one opinion, this court noted why the

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Petitioner’s current claim, that the trial court could not impose a sentence greater than thirtyfive years for a Range I, standard offender convicted of second degree murder, must fail: “the

petitioner’s fifty-year sentence would not be an illegal sentence even though it exceeded the

maximum sentencing range for a Range I offender because the sentence fell within the

maximum punishment range of sixty years authorized for Class X felony offenses such as

second degree murder.” Fred E. Smith, No. W2006-02504-CCA-R3-HC, 2007 Tenn. Crim.

App. LEXIS 645, at *8. Therefore, the habeas corpus court properly determined that the

Petitioner was not entitled to relief on this issue.

Regarding the Petitioner’s claim that his sentence is illegal because his thirty percent

release eligibility improperly converted his fifty-year determinate sentence into a

indeterminate sentence, this court has explained as follows:

Parole does not terminate a prisoner’s sentence. See Howell v.

State, 569 S.W.2d 428, 432 (Tenn. 1978). While the prisoner is

released from confinement, the sentence continues and the

parolee “is still in the custody of the penal authorities of the

State.” Doyle v. Hampton, 207 Tenn. 399, 340 S.W.2d 891, 893

(Tenn. 1960). Parole does not cause the sentence to expire or

Therefore, the State should have addressed the issues. 1

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terminate. Id. Thus, the possibility of parole does not cause a

sentence to be indeterminate. Range classifications and release

eligibility determinations do not create the possibility of

indeterminate sentences. See also Steve L. Bryant, slip op. at 4

(ruling that “parole does not cause a sentence to expire or

terminate but is a conditional release from more restrictive

confinement”).

Kim Lamar Witt v. State, C.C.A. No. 01C01-9606-CR-00274, 1997 Tenn. Crim. App.

LEXIS 765, at **5-6 (Nashville, Aug. 15, 1997). Thus, the Petitioner also is not entitled to

relief on this issue.

III. Conclusion

Based upon the record and the parties’ briefs, we conclude that the habeas corpus

court properly denied the petition.

_________________________________

NORMA McGEE OGLE, JUDGE

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