IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 1, 2011

CARL ROSS v. HENRY STEWARD, WARDEN, AND STATE OF

TENNESSEE

Appeal from the Circuit Court for Lauderdale County

No. 6496 Joe H. Walker, III, Judge

No. W2011-01634-CCA-R3-HC - Filed January 12, 2012

The Petitioner, Carl Ross, appeals the Lauderdale County Circuit Court’s summary dismissal

of his petition for habeas corpus relief from his 1995 convictions for two counts of attempted

second degree murder, three counts of aggravated robbery, and one count of theft over

$1000, and resulting sentence of 162 years’ confinement. The Petitioner contends that the

trial court did not have jurisdiction to sentence him as a Range III, career offender. We

affirm the judgment of the trial court.

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

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which JERRY L. SMITH and

ALAN E. GLENN, JJ., joined.

Carl Ross, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter and Jeffrey D. Zentner, Assistant

Attorney General, for the appellee, State of Tennessee.

OPINION

On January 27, 1995, the Petitioner was convicted by a Shelby County Criminal Court

jury of the above offenses. On February 3, 1995, the State filed a notice of enhanced

punishment and a motion for consecutive sentencing. The trial court classified the Petitioner

as a Range III, career offender and imposed consecutive sentences of thirty years for each
attempted second degree murder and aggravated robbery conviction and twelve years for the

theft conviction, giving the Petitioner an effective 162-year sentence.

The Petitioner filed a petition for habeas corpus relief contending that his convictions

were void because the trial court lacked jurisdiction to classify him as a Range III, career

offender. The Petitioner argued that the trial court lacked authority to sentence him as a

career offender because the State failed to file a timely notice of enhanced punishment. The

trial court summarily dismissed the petition because the Petitioner failed to show that his

sentences were illegal. The trial court found that the Petitioner’s sentences had not expired,

that they were lawful, and that the trial court had jurisdiction to sentence the Petitioner. This

appeal followed.

On appeal, the Petitioner contends that the trial court lacked jurisdiction to sentence

him as a Range III, career offender because the State failed to file a timely notice of

enhanced punishment. The Petitioner does not challenge the trial court’s imposition of

consecutive sentencing. The State contends that the Petitioner has failed to establish that he

is entitled to relief. We agree with the State.

The determination of whether habeas corpus relief should be granted is a question of

law that is reviewed de novo with no presumption of correctness. State v. Livingston, 197

S.W.3d 710, 712 (Tenn. 2006); Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2001). In

Tennessee, habeas corpus relief is available only when it appears on the face of the judgment

or the record that the trial court was without jurisdiction to convict or sentence the defendant

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

purpose of the habeas corpus petition is to contest a void, not merely a voidable, judgment.

Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999); State ex rel. Newsom v. Henderson, 424

S.W.2d 186, 189 (Tenn. 1969).

A void, as opposed to a voidable, judgment is “one that is facially invalid because the

court did not have the statutory authority to render such judgment.” Summers v. State, 212

S.W.3d 251, 256 (Tenn. 2007). A voidable judgment “is one that is facially valid and

requires proof beyond the face of the record or judgment to establish its invalidity.” Id. at

255-56. The burden is on the petitioner to establish that the judgment is void or that the

sentence has expired. State ex rel. Kuntz v. Bomar, 381 S.W.2d 290, 291-92 (1964). The

trial court, however, may dismiss a petition for writ of habeas corpus without a hearing and

without appointing a lawyer when the petition does not state a cognizable claim for relief.

Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004); State ex rel. Edmondson v. Henderson,

421 S.W.2d 635, 636-37 (Tenn. 1967); see T.C.A. § 29-21-109 (2010).

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Tennessee Code Annotated section 40-35-202(a) reads in relevant part, “If the district

attorney general believes that a defendant should be sentenced as a multiple, persistent or

career offender, the district attorney general shall file a statement thereof with the court and

defense counsel not less than ten (10) days before trial.” T.C.A. § 40-35-202(a) (2010). The

sentencing commission comments for this section state that subsection (a) “requires that the

district attorney general file a notice with the court and defense counsel setting forth the

nature of any prior convictions which will later be utilized for sentencing enhancement

purposes.” See also Tenn. R. Crim. P. 12.3(a), Advisory Comm’n Cmts. (stating that if

notice is filed in less than ten days, the defendant may request a reasonable continuance but

that the notice shall be valid if the defendant does not request a continuance).

A defendant is entitled to a continuance at a sentencing hearing when the State files

an untimely notice of enhanced punishment. See State v. Hines, 919 S.W.2d 573, 579 (Tenn.

1995); see also State v. Thompson, 36 S.W.3d 102, 115 (Tenn. Crim. App. 2000). The

“remedy for untimely notice is the option of a continuance for the defense, not preclusion of

the State from seeking enhanced punishment.” Thompson, 36 S.W.3d at 115. “In the

absence of a motion for continuance . . . any objection to the delayed notice by the State

ordinarily should be deemed to have been waived.” State v. Stephenson, 752 S.W.2d 80, 81

(Tenn. 1988) (holding waiver where the defendant did not raise the issue at the trial, at the

sentencing hearing, or on the motion for a new trial).

Our supreme court has held that if a trial court sentences a Petitioner in the incorrect

range, “this non-jurisdictional error renders the judgment voidable, not void, and does not

entitle [the petitioner] to habeas corpus relief.” Edwards v. State, 269 S.W.3d 915, 917

(Tenn. 2008).

A brief consideration of the methodology used to determine a

defendant’s offender classification (which also determines his

sentencing range), the length of his sentence, the manner of

service of his sentence, and whether multiple sentences should

run concurrently or consecutively, demonstrates why these

issues depend upon findings of fact and are therefore

appropriately raised only on direct appeal.

Cantrell v. Easterling, 346 S.W.3d 445, 450 (Tenn. 2011); see also Davis v. State, 313

S.W.3d 751, 760 (Tenn. 2010); Cecil Collins v. State, No. 03C01-9805-CR-00192, Knox

County (Tenn. Crim. App. July 28, 1999) (stating that a challenge to a Range II, multiple

offender classification is not a cognizable habeas corpus claim), perm. app. denied (Tenn.

Nov. 22, 1999).

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The Petitioner’s contention that the trial court improperly sentenced him as a Range

III, career offender is not a cognizable claim for habeas corpus relief. The Petitioner is not

entitled to relief.

In consideration of the foregoing and the record as a whole, we affirm the judgment

of the trial court.

________________________________

JOSEPH M.TIPTON,PRESIDING JUDGE

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