### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON ANDRE JACKSON v. FR ED RANEY, WARDEN Direct Appeal from the Circuit Court for Lake County

No. 99-7947 R. Lee Moore, Jr., Judge

No. W1999-00234-CCA-R3-CD - Decided May 19, 2000

This appeal arises from the trial c ourt's denial of the petitioner's pro se petition for habeas corpus relief based on h

is assertions that h

is guilty plea to second degree murder was void and illegal and that he had ineffective assistance of counsel in advising him to accept the plea agreement. After a careful revi

ew of the recor

d, we affirm the j udgment of the tria l court. Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed. G LENN , J., delivered the opinion of the court, in which H AYES , J., and R ILEY , J., joined. Andre Jackson, Tiptonville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and Clinton J. Morgan, Counsel for the State, for the appellee, Fred Raney, Warden. OPINION On February 11, 1993, the petitioner was indicted for the first degree murder of J. L. Covingto n. He entered a plea of guilty in the Shelby County Criminal Court to second de gre e murder, a Class A felony, on October 14, 1993. As part of the plea agreement, the petitioner was sentenced as a Range III offender and received forty year s inca rceration at forty-five percent plus a fifty dollar fine. He subsequently filed a Petition for Habeas Corpus, which was denied by the trial court on August 9, 1999. In his habeas petitio

n, the petitioner a

lleged that his sen

tence was void, be

cause his guilt y plea was not voluntary a

nd knowing, and wa

s also il legal, in that his punishment was above the appropriate

range that would normally be given him under the Sentencing Reform Act of 1989. He alleged that the trial cour t did not inform him o f the minimum and maximum ranges for second degree murder, and he was denied effective assistance of counsel when he was led to plead out of his range. The trial co urt, in denying the petition, stated, “Petitioner’s allegations that he was improperly

sentenced are not proper

subject for habeas corpus relief. The judgment is not void, nor has the sentence expired. The petition is denied.”1 The transcript of the plea proceedings, which would have included the dialogue between the petitioner and the

court when he en

tered his plea, is

not contained in the

record before

us. -2- On appeal, the petitioner has raised several issues that can be combined into two: 1. Whether the peti

tioner’s sentenc

e is void or illegal? 2. Whether

the pet itioner was denied effective assistance of counsel during the plea process? Habeas Relief It is well-established in Tennessee that the remedy provided by a writ

of habeas corpu

s is limited in scope and may on ly be invoked wher

e the judgment is voi

d or the petitioner

’s te rm o f imprisonment has expired. State v . Dav enport , 980 S.W.2d 407, 409 (Tenn. Crim. App. 1998); Passarella v. State , 891 S.W.2d 619, 62 6 ( Tenn. Crim. App.), perm . app . denied (Tenn. 1994) . A void, as opposed to a voidable, judgment has been defined by our Supreme Court as “one in which the judgment is facial

ly invalid because

the court did not have the statutory authority to render such judgment.” Dykes v. Compton , 978 S.W.2d 528, 529 (Tenn. 1998); see also T aylor v. State , 995 S.W.2d 78, 83 (Tenn. 1999) . The judgment of a court of genera

l j urisdic tion is conclusive and presumed to be valid, and such a judgment can only be impeached if the record affirmatively shows that the rendering court was withou t persona l or subject matter jurisdiction. Archer v. State , 851 S.W.2d 157, 162 (Tenn. 1993) ; Passarella , 891 S.W.2d at 626

. Thus , habeas corpus r elief is available only when “‘it appears upon the face of the judgment or the record of

the proceedings upon which the judgement is rendered’ that a convicting court was witho ut jurisdict ion or authority to sentence a defendant, or that a defendant’s sentence of impr isonment . . . has expired.” Archer , 851 S.W.2d at 164 (citation omitted). To obtain habeas corpus relief, the petitioner

must show by a preponderance of the evidence that his sentence is void and not merely voidable. See Davenport , 980 S.W.2d at 409; Passarella , 891 S.W.2d at

627. Consequently, a petitioner cannot collaterally attack a facially valid judgment of the trial court in a petition for habeas corpus relief. Arc her , 851 S. W.2d at 162. The proper means of challenging a facially v alid judgment based on a constitutional violation is through a pet itio n for post-conviction relief. Lewis v. Metropoli tan Gen. Sessions Co

urt for Nashville

, 949 S.W.2d 696, 699 (Tenn. Crim. App. 1996), perm . app . denied (Tenn. 1997); Fredrick v. State , 906 S.W.2d 927, 929 (Tenn. Crim. App. 1993). In the present case, the

petitioner has failed to carryhis burden of showing through the record that his sentence was voi

d or illegal. His

allegation that his

plea was involunta

ry would only resul

t in a voidable judgmen

t, which cannot be attacked through a habeas corpus petition. See Archer , 851 S.W.2d at 164. The fact that the trial court may or may no t have informed the petitioner of the maximum and minimum ranges of his punishment s

till does not make habeas corpus relief available. 1 Lewis , 949 S.W.2d at 699 (failure to fully

advise defenda

nt of rights waived

by guilty-3-

plea merely renders judgment voidable, not void). Likewise, an allegation of ineffective assistance of counsel merely renders a judgment voidable and not void. Passarella , 891 S.W.2d at 627. Neither is the petitioner’s sentence illegal. The petitioner faced a potential jury conviction on first degree murder. He agreed to be sentenced as a Range III offender as part of the agreement withthe State that allow

ed him to plead guilty

to second degree murder instead. The statutory range of punishment for a Ra

nge III offende

r to second degre

e murder, a Class A

felony, is not less

than forty nor more than sixty years. Tenn. Code Ann. § 40-35-112(c)(1); § 39-13-210. The petitioner was sentenced to the minimumin that range, and the trial court wa

s within its statutory

authority to make such judgment. Although, under certain circumstances, a petition for writ of habeas corpus may be treated as a petition for post-conviction relief, Tenn. Code Ann. § 40-30-205(c), this petition was not filed in the Shelby County Crim inal Court, as would have been required of a petition for post-conviction relief. Tenn. Code Ann. § 40-30-204(a). Additionally, the guilty plea having been entered in 1993, and the petition not hav

ing been filed unti

l 1999, the statute of limitations had expired for the filing of a petition for post-conviction relief. Carter v. State , 952 S.W.2d 417, 420 (Tenn. 1997). The petitioner does no

t allege that the tr

ial c ourt lacke d personal and subject matter jurisdiction over him when it rendered the judgment. This judgment is presumed to be valid, and w e see no evidence in the record before us that it was not. A facially valid judgm ent cannot b e collaterally

attacked by requesting habeas corpus relief, and the trial court was correct in dismissing the petition. We, t

herefore, aff

irm the judgment of t

he trial court.