# FILED December 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE AUGUST SESSION, 1998
DARREL D.CANNON, ) C.C.A. NO. 03C01-9801- CC-00012 ) Appe llant, ) ) BLEDSOE COUNTY V. ) ) JAMES BOWLEN, Warden, ) HON. CUR TIS S MITH, JUDGE and S TATE O F TEN NES SEE , ) ) Appellee. ) (HABEAS COR PUS) FOR THE APPELLANT : FOR THE APPELLEE : DARR EL D. C ANNO N, pro se JOHN KNOX WALKUP STSRCF, Route 4, Box 600 Attorney General& Reporter Pikevil le, TN 37367 TODD R. KELLEY Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION The Petiti oner, DarrelD. Cannon, appeals as of right the trialcourt’s dismissal of his petition for writ of hab eas co rpus. W e affirm the judgm ent of the tria l court. On September 29, 198 2, Petit ioner was sentenced upon conv icti ons of t wo c oun ts of voluntary manslaughter , two counts of use of a f irearm duri ng the commission of a felony (voluntary m anslaughte r), and two counts of armed ro bbery. Petitioner’ s aggregate sentence for the convict ions totaled thi rty-four (34) years.
Petiti oner filed a pro se wri t of habeas corp us on Se ptembe r 15, 1997. He later filed a m otion to dism iss the State’s motio n to dis miss the pe tit ion , which th e trialcourt tr

eated as an amendment to the petition for writ of habeas corpu s. In his pro se pleadings, the Petit ioner has asserted that t he sentences are void because of th e cons ecutive an d conc urrent se ntencing structure im posed by the trial co urt, and that the t rial cour t ill egally enhanced his sentence mul tiple t imes due to use of a firearm . It is a well -establi shed princ iple of law th at the re med y of hab eas c orpus is limitedin its nature a nd its sco pe. Archer v. State , 851 S.W.2d 157, 161-62 (Tenn. 1993 ); Passarel la v. State , 891 S.W .2d 619 , 626 (T enn. C rim. App . 1994). In Tennessee, habe as co rpus re lief is available only if “‘it appears upon the face of the judgment or the recor

d of the proceedings upon which the j udgment is rendered’ that a convicti ng court was wi thout jurisdict ion or authority to sentence a defendant , o r thata defendant’s sentence of imprisonm ent or other restraint ha s expired.” Archer , 851 S .W.2d at 164 (cit ation omit

ted in ori ginal). The petiti oner has the burde n of-3-

establi shing either a void judgment or an ill egal confi nement by a preponderance of the evidenc e. Pass arella , 891 S.W .2d at 627. Mo reover, where a judg men t is not void, but is merel y voidabl e, such judgment may not be collate rally atta cked in a suit for habe as corp us relief. Id . Tennessee Code Annota ted sectio n § 39-6 -1710(a )(3) [repea led; see Tenn. Code Ann. § 39-17-1307]providesincreased puni shment for the offender who uses a deadly w eapon in comm itting certain fe lonies. The subject statute doesnot crea te a separate or di stinct

offense but

provides i ncreased punishment of the offender

who uses a dea dly wea pon in com mitting certain felonies. Wa lker v. State , 606 S.W.2d 531, 532-33 (Tenn. 1980). Pursuantto subsecti on (a)(3) of the repealed statute, the five (5) year enh ancement must run con secutivel y with any other peri od of confinem ent. Furtherm ore, Petition er adm its thatone of his sentences has not yet expired, thereby making Pet itioner’s fi rst clai m not cognizable u nder the habeas corpus statute since h is senten ce has not expire d. See Tenn . Code Ann. § 29-21- 101 - 13 0.
Petition er’s claims th at he wa s subjec t to ill egal multiple enhancement factors, and that the conse cutive/concurren t sentencing struc ture is “il legal,” are not proper grounds for rel ief in a habe as co rpus p rocee ding. T he en hanc eme nt alleg ation, if meritorious, would merely make Petitioner’ s judgments voi dable, not void. The sameis true on the consecutive/ concurrent sen tencing st ructure. Therefore, these cla imsare also not c ogniza ble und er the ha beas c orpus s tatute. See Tenn. Code Ann. § 29-21-101 -130.-4- Based on the foregoin g, we find that Petiti oner has fai led to carr y his burden of establi shing by a prepon derance of the evidence either a void j udgment or an illega l confinem ent. Pass arella , 891 S .W .2d at 6 27. If it is clear fr om the face of t he petiti on that the petiti oner is not entitl ed to reli ef, then t he trialcourt is not requir

ed to hold a hear ing or inqu ire into the all egations i n the peti tion, but may dismiss the petiti on summ arily. Id . We agree wit h the tria l court’s dism issal of P etitione r’s petiti on. Accordingly , the judg ment of the t rial cour t is af firmed.

____________________________________ THOMAS T. W OODALL, Judge CONCUR:

___________________________________ JOSEPH M. TIPTON, Judge

___________________________________ JOE G. RILEY, Judge