IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

EUGENE J. KOVALSKY v. STATE OF TENNESSEE

 Appeal from the Circuit Court for Morgan County

No. 9077 E. Eugene Eblen, Judge

No. E2005-00491-CCA-R3-HC Filed August 15, 2005

The petitioner, Eugene J. Kovalsky, appeals from the trial court's order dismissing his petition for

writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's

denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petitioner has

failed to establish that he is entitled to habeas corpus relief. Accordingly, the state's motion is

granted and the judgment of the trial court is affirmed. 

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

Pursuant to Rule 20, Rules of the Court of Criminal Appeals

JOSEPH M.TIPTON,J., delivered the opinion of the court, in which GARY R.WADE,P.J., and NORMA

MCGEE OGLE, J., joined. 

Rex A. Dale, Loudon, Tennessee, for the Appellant, Eugene J. Kovalsky. 

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Kathy D. Aslinger, Assistant

Attorneys General, for the Appellee, State of Tennessee. 

MEMORANDUM OPINION

In June 2000, the petitioner was indicted by a Hawkins County Grand Jury for first degree

premeditated murder. On February 13, 2001, the petitioner pleaded guilty to voluntary manslaughter.

Pursuant to his plea agreement, the petitioner was sentenced to 15 years as a Range III, persistent

offender. The petitioner sought post-conviction relief in October 2001, alleging ineffective

assistance of counsel and an unknowing, involuntary guilty plea. Following an evidentiary hearing,

the trial court denied relief. This court affirmed the judgment on appeal. See Eugene Joseph

Kovalsky v. State, No. E2002-00441-CCA-R3-PC (Tenn. Crim. App. Mar. 31, 2003). 

On June 6, 2004, the petitioner filed a petition for writ of habeas corpus. He asserted that,

irrespective of his plea agreement, the trial court was without authority to sentence him as a

persistent offender in view of his lack of a prior criminal history and the state’s failure to file notice

of intent to seek an enhanced punishment. Following the appointment of counsel and a hearing on
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the matter, the trial court dismissed the petition finding that it failed to establish a cognizable claim

for habeas corpus relief. 

In Tennessee, “[a]ny person imprisoned or restrained of his liberty, under any pretense

whatsoever, except [those held under federal authority], may prosecute a writ of habeas corpus to

inquire into the cause of such imprisonment and restraint.” Church v. State, 987 S.W.2d 855, 857

(Tenn. Crim. App. 1998); T.C.A. § 29-21-101. The purpose of a habeas corpus petition is to contest

void and not merely voidable judgments. Archer v. State, 851 S.W.2d 157, 163 (Tenn. 1993) (citing

State ex rel. Newsom v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189 (1968)). 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, 214 Tenn. 500, 504, 381 S.W.2d 290, 291-92 (1964). If the petitioner carries this

burden, he is entitled to immediate release. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim.

App. 1994). A petition seeking issuance of a writ of habeas corpus may be summarily dismissed by

a trial court if it fails to indicate that the petitioner's conviction is void. T.C.A. § 29-21-109. 

First, the petitioner submits that the trial court was without jurisdiction to accept his plea

agreement because he possesses no prior felony convictions to justify his sentence as a persistent

offender. As the petitioner acknowledges, however, the Tennessee Supreme Court has rejected

similar sentencing challenges, holding that offender classifications and release eligibility "are

non-jurisdictional and legitimate bargaining tools in plea negotiations under the Criminal Sentencing

Reform Act of 1989." Bland v. Dukes, 97 S.W.3d 133, 134 (Tenn. Crim. App. 2002) (citing

McConnell v. State, 12 S.W.3d 795, 798 (Tenn. 2000); Hicks v. State, 945 S.W.2d 706, 709 (Tenn.

1997)); State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987). The petitioner's remaining claim of

a void judgment based on the states's failure to provide notice of its intent to seek an enhanced

sentence is not a cognizable claim for habeas corpus relief. In summary, the trial court properly

dismissed the petition for writ of habeas corpus.

 

Upon due consideration of the pleadings, the record, and the applicable law, the court

concludes that the petitioner has not established that he is entitled to habeas corpus relief.

Accordingly, the state’s motion is granted and the judgment of the trial court is affirmed in

accordance with Rule 20, Rules of the Court of Criminal Appeals. 

___________________________________

 JOSEPH M. TIPTON, JUDGE