### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs N ovembe

r 18, 2003
STATE OF TENN ESSEE v. LAVONDAS CORDELL NELSON Direct Appeal from the Circuit Court for Rutherford County

No. 49907 Don R. Ash, Judge

No. M2003-01525-CCA-R3-CO - Filed December 30, 2003

The Peti tion er, Lavon das Co rdell Nelso n, pl ed gu ilty to one coun

t of rec kless end anger

ment with a weapon and one count of possession of a ha ndgun by a felon i n the Ruthe

rford Cou nty Circuit Court, and t he trial cour t imposed suspended two year sentences for each count, to be serve d consecutively, plus four

years of probation at the expiration of those terms. The Petitioner filed a pro se petition f

or writ of habeas c orpus and

a motion re

questing th a t the trial court appoint an attorney to represent him during the habeas corpus pr oceeding. The trial

court de nied his motion and dismissed his petition for writ of habeas corpus. On appeal, the Petitioner contends that: (1) the tr ial court erred in dismissing his petition for writ of habeas corpus; and (2) the tr ial court er

red b y den ying his motion for appointment of counsel. Finding no reversible error , we affirm the trial court’s judgmen

t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
R OBERT W. W EDEMEYER , J., deliver ed the o pinion of the court, in which J OSEPH M. T IPTON and J ERRY L. S MITH , JJ., joined. Lavondas C. Nelson, pro se , for the appella nt. Paul G. Summers , Attorne y General and Repor

ter; Mich ael Moor

e, Solicito

r Gener al; Renee W

. Turner, Assistant

Attorney Genera l; and Willia

m C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee. Opinion I. Facts
The Petitioner, Lavondas Cordell N elson, ple d guilty to one count of reckless endange rment witha deadly w eapon and one coun t of posse ssion of a

handgu n by a felon, both Class E

felonie s, in Rutherfo

rd County Circuit Cou

rt. The trial court imposed suspended two y ear sentences for each count, to be ser

ved cons ecutively, plus four ye ars of pr

obation a t the expira

tion of th ose term s. These sentences were to be served consecutively to a prior c onviction. The Petitioner filed a pro se-2-

petition for writ of habeas corpus, contending that he w as coerced into signing his plea ag reement and that he did not enter his plea knowingly and volun ta rily. The Petitioner also filed a motion requesting that the trial court appoint an attorney to represent him during the habeas corpus procee ding. The trial court denied his motion and dismiss ed his pet ition for w

rit of hab eas cor

pus. The trial cou

rt held tha

t “it appe ars the Pe

titio ner’s cl aims, con sidered in the lig ht most fav orable to him, would at best render his conviction and sentence voidable and not void. Such claims cannot form the b asis for h abeas c orpus relief.” T he Petition

er now a ppeals. II. Analysis
On appeal, the Petitioner contends that: (1) the trial court erred in dismissing his petition for writ of habea s corpus; and (2) the trial court erred b y de

nyi ng his mot

ion for a ppointmen

t of couns el.
Article I, Section 15 of the Tennessee Constitution guarantees its citizens the right to seek habeas corpus relief. In T en ne ss ee , a “p er so n i mp ri so ne d o r r es tr ai ne d o f [ hi s o r h er ] l ib er ty, under any pretense whatsoever . . . may prosec ute a writ of habeas corpus, to inquire into the cause of such imprisonment . . . .” Tenn. Code Ann. § 29-21-101 (2000). The grounds upon which habeas corpus relief will be granted are very narrow. See State v. Rit chie , 20 S.W. 3d 624, 630 (Ten n. 2000). “Unlike the post-conviction petition, the purpose of a habeas c orpus pet

ition is to c ontest

void and notmerely voidable j udgments.” Potts v. Stat e , 833 S.W.2d 60 , 62 (Ten n. 1992). Theref

ore, in order to state a cognizable claim for habeas c orpus relief, the

petition mu st contes ta void judg ment. Id. “A void ju dgment i s one in which the judgment

is facially invalid bec ause the court did not have the statutory authority

to re nder such j udgmen

t. . . . A voi dable jud

gment is one whic h is facia lly valid and requires proof

bey ond the fa

ce of the record or judgm ent to demonstrate its voidableness.” Dykes v. Compton , 978 S .W.2 d 528, 529 (T enn. 1 998) ( citi ng Archer v. State , 851 S.W.2d 157, 161 (Tenn. 1993)). T

hus, a wr it o f habeas corp us is available only when it appe ars on the face of the judgment or the record that the convicting court wa s without jurisdiction to convict or sentence the defenda nt, or that the sentence of

imprisonment or other restraint has expired. Archer , 851 S.W.2d at 164; Potts , 833 S.W.2d at 62.
The petitioner bea

rs the burde n of showing by a preponderance of the evidenc e that the convi ct ion is void or that the prison term has expired. Passarella v. State , 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994), superceded by statute as stated in State v. Newman , No. 02C01- 9707-CC00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998), no perm. app. filed

. Furthermore, the procedural requirements for habe as corpus relief are mandatory and must be scrupulously

followed. Archer

, 851 S.W.2d at 165. It is permissible for a trial c ourt to summarily dismiss a petition of habeas corpus without the appointment of a lawye r and without an evidentiary hearing if there

is nothing

on the fa ce of the judgmen t to indica

te that t h e convictions addressed therein are void. See Passarella

, 891 S.W.2d a

t 627; Buford

v. State , No. M1999-00487-CCA-R3- PC, 2000 WL 1131867, at *2 (Tenn. Cri m. A pp., at Nashville, July 28, 2000), perm. app. denied (Jan. 16, 2001). Because the determination of whether habeas corpus relief should be gra nted is a question of law, our review is de novo with no pre sumption of correc tness. Hart v. Sta

te , 21 S.W.3d 901, 903 (Tenn. 2000).-3-

The appointment of counsel in a habeas corpus procee ding is discretionary. Tennessee Code Annotated section 40-14-204 (2003) provides that “[i]n a ll proceedings for the writ of habe as corpus

. . ., the co

urt havin g jurisd

iction of s uch matte

rs shall de

termine t he questi o n of ind igency and appoi ntcounsel, if nece ssary , in the ma nner set out in this pa

rt.” Fur thermore , there i s n o constitutional right to counsel in habeas corpus procee dings. Denton v. State , No. 03C01-971 2-CR00536, 1999 WL 318820, at *1 (Te nn. Crim. App., at Kno xvi lle, M ay 17, 199 9) (ci ting Weather ly v. State , 704 S.W.2d 730, 732 (Tenn. Crim. App. 1985)), no perm. app. filed

. This Court h as held that “when a petition has been compete ntly

drafte d and conclusively shows tha

t the petit ioner is enti tled t o no relief, the trial court may order the petition dismissed without the appointment of counsel and without an evidentiary hearing.” Id.
The Petitioner

contendsthat the tr

ial cour t erred in dismissin g his petition for writ of habeas corpus because

his guilty pleas were not knowingly and voluntarily enter

ed due to coercion, thereby rendering his sentences void. The trial court found that the Petitioner’s claims “would at best rende r hi s conviction and sentence voidable and not void. Such claims cannot form the basis fo r habea s corpus reli ef.” We agree with the trial court. The Petitioner’s judgments and his plea agree ment are faciall y valid in this case. In order to prove tha t his guilt y pl eas wer

e not know ingly

and volun

tarily entered due to coercion, the Petitioner would have to present proof of the c oercion and its effect on him at a hearing. After examining the judg ments, it does not appear that the convicting court was without jurisdict

ion to conv

ict or sen tence th e Petitione

r, or tha t the sente

nce of im pris onment or other restraint has expired. Archer , 851 S.W.2d at 164; Potts , 833 S.W.2d at 62. Accordingly , we conclude, as the trial cou

rt did, tha t the Petiti oner’s j udgmen ts are no t void

and that the Petitioner failedto establish a claim for habeas corpus relief. Therefore, the trial court properly dismissed the Petitioner ’s petitio n for wri t of habe as corpu s. Next, the Petitioner contends that the trial court erred i n deny

ing his motion for appointment of counsel. We conclu de that the trial c ourt did not abuse its discretion in denying the Petitioner’s motion for appointment

of counsel in this habeas corpus matter because th e petition failed to state a cogniza ble claim for habe as corpu s relief

. Beca use the Pe titioner’ s judgme

nts were faciall

y va lid and not void, the trial court properly dismissed the petition for writ habeas corpus without appointing couns el and with out h oldi ng an ev ident iary heari ng. III. Conclusion
Based upon our de novo review, we conclude that the Petitioner has failed to establish a claim for habeas corpus relief and that the tria l cour t did not er

r in dismissing his petition and denying his motion for appointmentof counse l. Therefore, w e AFFI

RM the trial

court’s judgmen

t.

___________________________________ ROBERT W. WEDEMEYER, JUDGE-4-