IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 05, 2014

VERNON MOTLEY v. JERRY LESTER, WARDEN

Appeal from the Circuit Court for Lauderdale County

No. 6727 Joe H. Walker, III, Judge

No. W2014-00355-CCA-R3-HC - Filed January 30, 2015

Petitioner, Vernon Motley, appeals from the trial court’s summary dismissal of Petitioner’s

petition for writ of habeas corpus relief. Petitioner was convicted by a Shelby County jury

for first degree premeditated murder and received a sentence of life imprisonment. His

conviction was affirmed on appeal. See State v. Vernon Motley, No. W2010-01989-CCAR3-CD, 2012 WL 1080479 (Tenn. Crim. App. Mar. 29, 2012). Petitioner asserts he is

entitled to habeas corpus relief because the trial court, in effect, imposed a sentence of life

without possibility of parole without jurisdiction to do so. Our review of the record shows

that Petitioner was properly sentenced to the only sentence he could receive, and we therefore

affirm the judgment of the trial court.

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

THOMAST.WOODALL, P.J., delivered the opinion of the Court, in which ALAN E. GLENN and

ROGER A. PAGE, JJ., joined.

Vernon Motley, Henning, Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel; and

D. Michael Dunavant, District Attorney General, for the appellee, the State of Tennessee.

OPINION

At the time Petitioner committed the first degree premeditated murder in February

2008 for which he was convicted, there existed three possible sentences for a first degree

murder conviction: death, imprisonment for life without possibility of parole, or

imprisonment for life. T.C.A. § 39-13-202(c)(1), (2), and (3). It appears from the appellate

record that in Petitioner’s case the State did not file pre-trial notice to seek a sentence of
death or imprisonment for life without possibility of parole, and therefore the only possible

punishment for Petitioner upon a conviction for first degree murder was imprisonment for

life. See Tenn. R. Crim. P. 12.3(b) and T.C.A. § 39-13-208(a), (b), and (c).

Petitioner asserts, however, that he unlawfully received a sentence of imprisonment

for life without possibility of parole. Petitioner argues that T.C.A. § 40-35-501(i)(1) and (2)

mandate that for any first degree murder conviction a person must serve “one hundred

percent (100%) of the sentence imposed by the court less sentence credits earned and

retained,” but no such reductions can reduce the sentence by more than fifteen percent (15%).

In Jerry D. Carney, II v. Dwight Barbee, Warden, No. W2011-01977-CCA-R3-HC,

2012 WL 5355665 (Tenn. Crim. App. Oct. 31, 2012), a panel of this court addressed an

identical legal theory in an appeal from the summary dismissal of a habeas corpus petition.

In Jerry D. Carney, II, the appellant attacked his sentence of imprisonment for life after he

was convicted by a jury of first degree premeditated murder. Id. at *1. Specifically, the

petitioner in Jerry D. Carney, II, asserted his sentence was illegal “because the ‘statutory

sentencing scheme contained in T[ennessee] C[ode] A[nnotated section] 40-35-

501(i)(1)&(2). . . does not provide for the possibility of parole upon a defendant being

sentenced to imprisonment for life.’” Id. The petitioner asserted, like Petitioner in the case

sub judice, that he had illegally been sentenced by the trial court and not by a jury for

imprisonment without possibility of parole because T.C.A. § 40-35-501(i) eliminates release

eligibility for any person convicted of first degree murder. Id.

The court in Jerry D. Carney, II, set forth the applicable law pertaining to habeas

corpus petitions as follows:

The determination of whether to grant habeas corpus relief is a question of

law and our review is de novo. Summers v. State, 212 S.W.3d 251, 262

(Tenn. 2007). The Tennessee Constitution guarantees a convicted criminal

defendant the right to seek habeas corpus relief. Tenn. Const. art. I, § 15.

However, the grounds upon which habeas corpus relief will be granted are

very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). In this state,

habeas corpus relief only addresses detentions that result from void

judgments or expired sentences. 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

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omitted)). On the other hand, a voidable judgment or sentence is one which

is facially valid and which requires evidence beyond the face of the

judgment or the record of the proceedings to establish its invalidity. Taylor,

995 S.W.2d at 83.

A sentence imposed in direct contravention of a statute is illegal and, thus,

void. Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000). A

petitioner bears the burden of establishing a void judgment or illegal

confinement by a preponderance of the evidence. Hogan v. Mills, 168

S.W.3d 753, 755 (Tenn. 2005). Moreover, it is permissible for a court to

summarily dismiss a habeas corpus petition, without the appointment of

counsel and without an evidentiary hearing, if there is nothing on the face

of the record or judgment to indicate that the convictions or sentences

addressed therein are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn.

Crim. App. 1994).

Jerry D. Carney, II, 2012 WL 5355665 at *2.

The panel of this Court in Jerry D. Carney, II, rejected that petitioner’s assertion that

he had in fact received, in effect, a sentence of life imprisonment without possibility of

parole when his judgment stated that he had been sentenced only to imprisonment for life.

Id. at *4. The court quoted with approval from an opinion of the Tennessee Attorney

General clarifying the effect of T.C.A. § 40-35-501(i) as follows:

The only reasonable resulting interpretation would be that

subsection (i) operates, in so far as it conflicts with the

provisions of the existing statute governing release eligibility,

to raise the floor from 60% of sixty years . . . to 100% of

sixty years, reduced by not more than 15% of eligible credits.

Tenn. Op. Att’y Gen., No. 97-098 (1997) (emphasis added).

Jerry D. Carney, II, 2012 WL 5355665 at *4.

The Attorney General also concluded that a defendant serving a sentence of

imprisonment for life would be eligible for release after serving sixty years, “the [statutory]

equivalent to a life sentence,” Id., less up to fifteen percent credit for a mandatory minimum

of fifty-one years. Id. Therefore, even under the statute cited by Petitioner, T.C.A. § 40-35-

501(i), he will theoretically be eligible for release at some time in the future. Petitioner did

not receive an unauthorized or illegal sentence of imprisonment for life without possibility

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of parole. On the face of the record, he was not entitled to habeas corpus relief.

Accordingly, the judgment of the trial court is affirmed.

_______________________________________

THOMAS T. WOODALL, PRESIDING JUDGE

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