# FILED
October 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE SEPTEMBER 1998 SESSION

MICHAEL E. B

ASS , ) No. 01C01-9802-CC-00066

) Appellant ) ) Hickman County vs. ) ) Honorable Dona ld P. Harris, Judge STATE OF TENN ESSEE, ) ) (Habeas Corpus) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: MICHAEL E. BASS JOHN KNOX WALKUP (Pro Se) Attorney General & Repor ter Turney Center Industrial Prison Route 1 TIMOTHY F. BEHAN Only, TN 37140-9709 Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Ave. North 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 JOSEPH D. BAUGH, JR. District Attorney General P.O. Box 937 Franklin, TN 37065-1469

OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE2 OPINION The petitioner, MichaelE. Bass, appeals the trial court’s denial of his petition fora writ of habeas corpus. The trial court did not appoint counsel and dismissed the petition without an evidentiary hearing. In this appeal, the petitioner contends that although he was conv icted and sentenced in 1981, the provisions of the 1989 Sentencing Reform Act apply and his sentence has expired. W e affirm the judgment of the trial court

.

The record does not include the origin al judgment. Th e pleadings indicate that the petitioner was convicted of seco nd-degree murder, a Class X felony, on January 8, 1981. The petitioner received a life sentence. This court affirmed his conviction and sent ence in State v. Michael E. Bass , No. 82-198-III (Tenn. Crim. App., Na shvi lle, July 8, 1983). In 1982 and again in 1989, the state legislature made wide-ranging changes to the sentencing laws. In November, 1997, the petitioner filed this peti tion for writ of habeas corpu s asserting that (1) the legislature hasmanda ted th e application of t he 1 982 and 1989 sentencing reform acts to his sentences, (2) his constitutional rights to equal protection and due pro ce ss require the applica tion of the 1989 Criminal Senten ci ng Reform Act to his sentence, and (3) the passage of

a more lenient

sentencing structure without extending its provisions to those who were sentenc ed under harsher standards results in cr ue l and unusual punishment in violation of th e Eighth Amen dmen t to the United States Constitution. The trial court dismissed his petition without a hearing on December 12, 1997. In
a thoughtf ul and th orough me morandu m of law, the trial judge found that the 1989 Act did notaffect penalties imposed before the Act’s effective date, that section 39- 11-112 has no bearingon the petitioner’s sentence,that the state has a legitimate interest in the finality of criminal convictions, and that the excl usio n of those sentenced prior to 1982 from the Act’s provisions has a reasonable relationship to a legitimate state interes t. We agree.1 The 1982 Act changed neither the pen alty for second-degree

murder nor its classific

ation as a Class X felony

. See Tenn. Code Ann. § 39-1- 701 and 39-2-212 (1982) (repeal ed 1989).

2 The petitioner has attached numerous letters, certificates and other documen ts to supp ort his con tention that his c onduct h as been e xemplary. 3 The petitioner

’s positio n stemsfrom the fact that pursuant to the 1989 Act, the sentencing ran ge for a Range I offender convicted of second-degree murder is not l ess than

fift een (15) no r more than twenty-fiv e (25) years. Tenn. Code Ann. § 40-35-112(a)(1) (1997). 1 In 1981, the petitioner, a first-time offen der,
was sentenced to life impris onment a nd because second-degree murder was defined as a Cla

ss X fe lony, his se ntence is not subject to reduc tion “for good, honor or incentive or other

sentence credits of any sor t. ” Tenn. Code Ann. § 39- 5403 (Supp. 1979) (repealed 1982). The petitioner conten ds that he has served in
excess of eight

een year

s as a mod el pris

oner, an d, there

fo re, under current sentencing law, he is

entitled to immediate release. 2

First, we must point out that in this state the remedy of habeas corpus is very limited in sc op e. The writ, as codified at Tennessee Code Annotated sections29-21-101 to -130, will issue only in the case of a void judgment or to free
a prisoner held in custody after his term of imprisonment has ex pired. State ex rel. Hall v. Meadows , 2 15 Tenn. 668, 675, 389 S.W.2d 256, 259 (Tenn. 1965). The purpose of a habeas corpus petition is t o conte st void and not merely voidable judgments. Archer v. State , 851 S.W .2d 157, 163 (Tenn. 1993). Habeas corpus reliefis available only

when it appears on the face of the j ud g ment or record of proceedings upon which the judgment i s rendered that the convic ting court was without jurisdiction or author

ity to sentence the d efendant or that the defendant’s sentence has expired. Id . at 164.

In this instance, the

petitioner alleges that his sentence has expired. We canno t agree. This court has pr eviously addressed the issues the petitioner raises in t his appeal. See State ex rel. Stewar t v. McWherter , 857 S.W.2d 875 (Tenn. Crim. App. 1992); Jerome Sydney Barrett v. State , No. 02C01-9508-CC-4

00233 (Tenn. Crim. App., Jackson, Feb. 27, 1997); Patrick Simpson v. State , No. 01C01-9203-CR-00098 (Tenn. Crim. App., Nashv ille, Nov. 18, 1992). Our earlier rulings control the r

esults in this case.

The language of Tennessee Code Annotated sect ion 40-35-117(c) is clea r : “For all persons who committed crimes prior to July 1, 1982, prior law shall applyand remain in full force and effect in every respect , including, but not limi ted to, sentencing, parole and prob ation.” In State ex

rel. Stewart , this court held that the “1989 Sentencing Act provid es that it applies only to those offenders who are sentenced after its effective date” on Nov ember 1, 1989. State ex rel. Stewart, 857 S.W.2d at 876. A ltho ugh the 1989 Act benefited some offenders w ho committed theircrimes betwee n 1982 and 1989, the Act’s provi sions do not apply to the petitioner. See Tenn. Co de Ann. § 40-35-117(b)(1997). The 1989 Act did “not affect rights and duties that matur ed, penalties that

were incurred, or proce edings that were begun before its effective date.” 1989 Tenn. Pub. Acts ch. 591, § 115. Thus the petitioner, who w as convicted and sentenced prior to July 1, 1982,remains “under the prior law . . . in every respect, includin g, butnot limited to, sentencing, parole and probation.” Tenn. Code Ann. § 40-35-117(c).

Tennessee Code Annotated section 39 -1 14 (1975), which was replaced by section 39-1-105 ( 1982) and later by secti on 39-11-112 (1989) does not require the state to red uce his sentence. The statute in effect at the time of the petitioner’s conviction provided that

Whenever any penal statute or p enal legislative ac t of the state is r epeale d or amended by a subsequent legislative act,any

offense, as defined by such statute or act being repealed or amended, com mitte d while such statute or act wa s in full force and effect shall be pr osecutedunder such act or statute i n effect at the time of the commission of the offense. In the event the subsequ ent act provides for a less er penalty, any pun is hment imposed shall be in accordanc e with the subsequent act. Tenn. Code Ann. § 39-114 (1975)(emphasis added). This provision applies only to those cases in which the accused is to be prosecuted under the substantiv e law3 The last sentence of section 39-11- 112 reads: “ Except as provided

under the provisions of § 40- 35-117 , in the event the subsequent act provides for a lesser penalty, any

punishment imposed shall be in ac cordance with the subsequent act. “ Tenn. Code Ann. § 39-11-112 (1997 ) (emphasis added). 5 in effect at the time of the offense and a new statute,calling for a lesse r punishment, is enacted before the imposition of the punishment. State ex rel. Stewart , 857 S.W.2d at 877. The term “prosecution” does not inc lude enforcement of a sentence. Barrett , No. 02C01-9508-CC-00233, slip op. at 5. The statute is not relevant to those cases in which judgment was entered and s entence imposed prior to passage of the new law. Id . The 1989 statute is identical to the ear lier law exceptthat i t contains an additional clause excluding from its provisions those convicted of offenses before July 1,1982. 3 Therefore, even if the statute all owed forthe reduction of

a previously imposed sentence in some cases, it would not grant reliefto this petitioner. The petitioner is entit led to no re duction of his sentence under these statutory provisions.

Next we address the petitioner’s contention that his sentence violates his rights under the constitutions of the UnitedStates and the State of Tennessee. The g ist of the petitioner’s constitutional argument is that his lengthier sentenc

e denies him equal protection and due process under A r ticle 11, section 8 of the Tennessee Constit utio n and the Fourteenth Amendment to the United States Constitution which prohibit legislation that provides favorable treatm ent to any individual or class of individual s. Equal protection requires that all persons similarly situated must be treated alike. State ex r el . Stewart , 857 S.W.2d at 876. Legislatures, however, may trea t a cl ass of persons differently so l ong as the classification has a reasonable relatio ns hip to a legitimate state i nterest. Doe v. Norris , 751 S.W.2d 834, 841 (Tenn. 1988). In State ex rel. Stewart , this court found that the s tate has a legitimate interes t in preserving the finality of criminal judgments. Reconsideration of all cases involving sentences im pos ed before November

1, 1989 but which are pres ently being serve

d by confinement, parole or probation, would constitute opening “a virtual Pandora’s

box ” that would dis rupt the4 In Crum , the petitioner receiv ed a life sentence for aggrav ated kidnapping in January,1982. State ex rel. Bobby L. Crum , slip op. at 2. He argued that under the 1989 act, he would be treated as a Range II, Class A offender subject to a range of punishment o f twenty-five to forty

years. Slip op. at 4. As we point out in Crum , determination of which cl assification applied and development of the evidence relevant to sentencing under the 198 9 Act would require that new sente ncing hearings be held in each case. We concluded that society should not be forced to undergo such a disrupti on of its justice system. Id

. 6 judicial system. State ex rel. Stewart , 857 S.W.2d at 877 (quoting State ex rel. Bobby L. Crum v. Ned McWherter , No. 02C01-9108-CC-00181,slip op. at 4 (Tenn. Crim. Ap p., Jackson, May 13, 1992)). 4 Because a reasonable relationship exist s between the legisl ative decision to exclude those who w ere sentenced prior to 1982 from the provisions

of the 1989 Act and society’s interest in preventing a wholesale disruption of the criminal justice system, the constitutional right to equal protec

tion and due process are not vi olated.

In a relat ed argument, the petitioner as serts that the great dis parity between the sentence he is currently ser ving and that whic

h he would serve under the 1989 Act

causes psycho logica l torment of mind as well as of body which amounts to cruel and unusual punish ment un der the Eighth Amendment to the United States Constitution. The Eig hth Amendment, however, prohibits sentences that are disproportionately severe when compared to the crime committed. Solem
v. Helm , 463 U.S. 277, 297, 103 S. Ct. 3001, 3011 (1983). The fact that a penalty is reduced by new

legislation does not mean that the sentence under the prior law
was disproportionate

to the subject crime. Barrett , No. 02C01-9508-CC-00233, slip op. at 7; Patrick Simpson v. State , No. 01C01-9203-CR-00098, slip op. at 7 (Tenn. Crim. App., Nashville, Nov. 18, 1992). The petitione r has cited no authority to demonstrate that a life sentence is un co nstitutionally dispr oportionate for the offense of

se co nd -d eg re e m ur

de r. We have found none. See Simpson , slip op. at 7. We do not find the petitioner’s sentence consti tutionally infirm.

A trial court is not r

equired to conduct an inq uiry into the allegations raised in a petition for habeas corpus if th e petition fai ls to state a cognizab le claim.7

See State ex rel. Byrd v. Bomar , 381 S.W.2d 280 (Te nn. 1964); Tenn. Code Ann. § 29-21-109 (1980). A petiti oner has t he burde n of esta blishing b y a preponderance of the evidenc e that the judgment is voi d or that his term of imprisonment

is expired. Passarella v. State , 891 S.W.2d 619, 627 (Ten n. Cr im. App. 1994).

In this instance, the petition er does not allege that the or iginal judgm ent is void, and he has not all eged any facts indicating that his term of imprisonment hasexpired. Even if ev ery factual allegation of his petition is taken
as true, he is not entitled to habeas corpus relief . The trial court did not err by dismissing his pet ition without an e videntiary hearing.

We affirm the judgment of the trial court.

________ _________________ _ CURWOOD W ITT, Judge CONCUR:

______________________________ GARY R. WADE , Presiding Judge

______________________________ THOMAS T. W OODALL, Judge