1 

# FILED
March 30, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE DECEMBER 1998 SESSION

MATHIS MA

RTIN , * No. 01C01-9801-CR-00013 APPELLANT, * Davidson County VS. * Honorable Seth Norman, Judge STATE OF TENN ESSEE , * (Petition for Writ of Habea s Corpus) APPELLEE. *

For Appellant : For Appellee : Mathis Martin John Knox Walkup MTCX Annex Attorney General and Repor ter 7466 Centennial Boulevard 425 Fifth Avenue North Nashville, TN 37209-1052 Nashville, TN 37243-0493 Kim R. Helper Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493

OPINION FILED: ____________________
AFFIRMED NORMA MCGEE OGLE, JUD GE1 We have no record of any proceedi ngs occurring pr ior to these habeas corpus proceedi ngs, includi ng the judgment of conv icti on. 2 OPINION On November 19, 1997, the petiti oner, Mathis Martin, fil ed pro se a “Petition to Set Aside Guil ty Plea, And/Or Alternative Writ of Habeas Corpus” in the Davidson County Criminal Court. On December 3, 1997, the trial court summarily dismissed the petition, finding no cognizable grounds for relief. On appeal, the petitioner challenges the trial court’s dismis

sal of his petition with out the appointment of counsel or an evide ntiary hearing. Fol lowing a thorough r eview of the petition and the record, w e affirm the judgment of the trial cour t.

In his petition, the petitio ner alleged that he pled g uilty in the Davi dson County Criminal Cour

t to two counts of armed robber y and one count of robbery on July 20, 1989. 1 According to the petitioner, a plea agreement provided for a sentence of fifteen years incarcer ation in the Tennessee Department of Cor rection for each count of armed robbery and eight years incarceration for the robbery conviction. The sentences w ere to be served concurr ently with one another and consecutively to a s

entence being served pur suant to a parole violati on. Instead, the trial court ordered that the petitioner serve all his sentences consecutively. No appeal was taken.

In his petition requesti ng habeas corpus relief, the petitioner alleged for the first ti me the fol lowing

ground s for rel ief: (1) The trial court f ailed to implem ent the senten cing arrangement se t forth in the p lea agreement, imposing consecutive inst ead of concu rrent sentencin g; (2) Because the petitioner’s crimes occurred within a twenty-four2 See, e.g ., State v. Ha ll , No. 02C01-9802-CR-00040, 1998 WL 545339, at *1 (Tenn. Cri m. App. at Jackson, August 28, 1 998)(following the pet iti oner’s gui lty plea, t he judgment became final up on the waiver of his right to ap peal); State v. Hooper , No. 03C0 1-9701-C R-00035 , 1998 W L 95392, at *1 (Tenn. Crim. App. at

Knoxvill e, March 6, 1998)( a judgment becomes final 30 days after it i s entered
3 hour period of time, the trial court’s imposition of consecutive sentencing was erron eous, and the resulting sent ence constituted cruel and unusual punishment; (3) The trial court did not apply the Tennessee Criminal Sentencing Reform Act of 1989 in sentencing the petitioner; (4) The petitioner’s counsel prov ided ineffective assistance including failing to advise the petitioner of his right to appeal his sentence, failing to adequatel y investigate hi s case before advising him to plead guilty, failing to advise the petitioner of his right against self-i ncrimination, assisting the police and prosecutor in obtaining information from the petitioner, and failing to ensure that the peti tioner was competent to plea d guilty; (5) The petitioner was not competent to plead guilty; moreover , his guilt y plea was ne ither kno wing nor volu ntary; (6) There was no factual basis to his plea; (7) The State withheld excul patory information; (8) The pet itioner’ s convictio ns subjec ted him t o double jeopardy; (9) The wording of his indictment rendered it

void, and the Indictment was unsupported by the evidence; (10) The prosecutor selectivel y prosecuted the petitioner and otherwise engaged i n prosecutorial misconduct; (11) The trial court did not posse ss venue. The pet itioner a sked tha t he be pe rmitted to withdra w his guilty pl ea, or, al ternative ly, that he be granted a “late Appeal .”

Initially, we hav

e previously obser

ved that, under Tennessee law , a trial court may set as ide the acceptance of a guilty plea in three different circumstances. State v. Lyons , No. 01C01-9508-CR-00263, 1997 WL 469501, at *5 (Tenn. Crim. App. at Nashv ille, August 15, 1997). Tenn.R. Crim. P. 32(f) gov erns two circumstances in w hich a defendant may withdraw a guilty plea before a judgment has become final. Id. at **5-6. In this case, the petitioner’s judgment of conviction became final long before the filing of the instant peti tion. 2 After ainto the minutes of the court clerk).
4 judgment becomes final, a defendant may then seek to have his gui lty plea set aside in post-conviction proceedings. Lyons , N o. 01 C0 1- 95 08 -C R- 00 26 3, 19 97 WL 469501, at **5-6. The Post-Conv iction Procedure Act als o provides that, if a tri al court finds that a petitioner w as denied the right to an appeal from the original conviction in viol ation of the state and federal constitutions, the trial court may grant a “delayed appeal.” See Tenn. Code Ann. § 40-30-213 (1997).

The court in this case could have treated this petitio n as a petition for post-conviction relief. Tenn. Code Ann. § 40-30-205(c) (1997). However, the record in this case clearly

shows that the applicabl e three-year statute of li mitation expired in 1992. Tenn. Code Ann. § 40-30-102 ( 1989). Moreover, the Pos t-Conviction Procedure Act of 1995 did not rev ive the petitioner’s c

laims. Tenn. Code Ann. §40- 30-201 to -222 (1997). See, e.g., Cox v. State , No. 02C01-9508-CR-00221, 1997 WL 284713, at *1 (Tenn. Crim. App. at Jackson, Ma y 30, 1997)(“[p]etition s barred by the statute of limitations contained in the 1986 Act may n ot be revived by fil ing under the amended act”).

Habeas corpus proceedings provide a fourth context in which a petitioner may challe nge a judgme nt of convic tion or sent

ence stemming

from a guilty plea. See, e.g. Dykes v. Compton , 978 S.W.2d 528 (Ten n. 1998). However, the procedural provisions pertaining to habeas corpus relief are mandat ory and must be scrupulously follow

ed. Villanueva v. Carl

ton , No. 03C01-9611-CR-00425, 1997 WL 607499, at *2 (Tenn. Crim. App. at Knoxvi lle, October 3, 1997), perm. to appeal denied, concurring in results only , (Tenn. 1999). We note that the petitioner did not attach t he judg ment of co nvicti on in hi s case t o his petition fo r habeas corpus relief,5 as required by Tenn. Code Ann. § 29-21-107 (b)(2) ( 1997). A trial court may dismiss a petition for failur e to comply with this

requirement. State ex re l. Wo od v. Johnson , 393 S.W.2d 135, 136 (Tenn. 1965). Nevertheless , because the judgment is not crit ical to th e disposi tion of t his petit ion and in the inter est of ju dicial eco nomy, we will address the merits of the petitioner’s appeal.

The Habeas Corpus Act requi res a court to review the petition and dismiss it unless it al leges a cognizable ground for relief. Tenn. Code Ann. §§ 29- 21-101 to –109 (1997). In other w ords, a petition for a wr it of habeas corpus may be summarily dismissed by the trial court without appointment of counsel, without an evidentiary hearing , and without the opportunity to amend the petition, if the face of the petition does not present a c ognizable claim. Mitchell v. Carlton , No. 03C01- 9704-CR-00125, 1998 WL 8505, at *2 (Tenn. Crim. App.at Knoxville, Januar y 12, 1998). See also Attaway v. State , No. 03C01-9703-CR-00100, 1998 WL 125563, at *3 (Tenn. Crim. App. at Knoxville, March 23, 1998). Moreover, if the petition is inartfully drawn, th e trial court is not r equired to appoint counsel. There is no right to counsel in habeas corpus proc eedings. See Ransom v. Myers , No. 01C01-9708- CC-00233, 1998 WL 748673, at *4 (Tenn. Crim. App. at Nashville, October 23 , 1998); State v. Harris , No. 01C01-9309-CR-00304, 1994 WL 630504, at *1 (Tenn. Crim. App. at Nashville, November 10, 1994).

Thus, we mus

t consider w

hether or not

the petitio ner has stat

ed claims cognizable in habeas cor pus proceedings. The remedy of the writ of habeas corpus is limited to relief from v oid and not merely voidable judgments. Archer v. State , 851 S.W.2d 157, 163 (Tenn. 1993); Passarella v. State , 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994); Donald v. State , No. 01C01-9710-CR-00481, 1998 WL 468646,3 Normally, the peti tioner’ s failu re to provi de an adequate recor d on appeal woul d preclude our considerati on of thi s issue. However,we note that , in hi s Notice of Appeal , the pet iti oner requested that “a ll proc eed ings , reco rds, a nd an y hear ing tra nsc ripts b e cer tified to the C rim inal C ourt o f App eals by this Cou rt.”
6 at *1 (Tenn. Crim. App. at Nas hville, August 12, 1998) , perm. to appeal denied , (Tenn. 1999). In other wor ds, it must appear upon the face of the judg ment or the record of the proceedings upon which the judgment is r endered that a court was without jurisdicti on or authority to conv ict or sentence a defendant, or that a defendant=s sentence of imprisonment has ex pired. Archer , 851 S.W.2d at 164; Ritchie v. State , No. 03C01-9601-CC-00029, 1998 WL 855517, at *2 (Tenn. Cr

im. App. at Knoxville, December 10, 1998). Additionally, if a claim would necessarily involve investi gation beyond the face of the judg ment or the record of the proceedings, the claim w ill not be cognizabl e in habeas corpus proceedings. See, e.g., Martin v. State , No. 02C01-9804-CC-00101, 1998 WL 467098, at *1 (Tenn. Crim. App. at Jackson, August 12, 1998).

We conclude that the pe titioner failed to allege facts adequately demonstrating the void c haracter of the proceedings w hich led to his confinement. McDowell v. Jon es , No. 03C01-9707-CR-00278, 1998 WL 389065, at *1 (Tenn. Crim. App. at Knoxville, July 14, 1998). The petitioner first alleges that the trial court failed to implement the plea agreement be tween the petitioner and the State. It is unclear from the record and the petition whether the plea ag reement at issue was binding or non-binding

pursuant to Tenn. R. Crim. P. 11(e). Thus, it is unclear whether the petitioner i s arguing that his co unsel did not apprise him of the nat ure of his plea agreement or that th e trial court did not afford the pe titioner an opportunity to withdraw his plea pursuant to Rule 11(e)(4). 37 In any event, whether we characterize the petitioner’s argument in terms of ineffective assistance of c ounsel, a challenge to the v oluntary and knowing nature of his guilty pl ea, or a challenge to the tr ial court’s compliance w ith Rule 11, the peti tioner’s claim ren ders the j udgment voidable r ather th an void. W e have previously observed that ineffective assistance of counsel is not a cognizable basis for habeas corpus relief. McCaslin v. State , N o. 01 C0 1- 96 11 -C C- 00 48 0, 19 98 WL 44919, at * 1 (Tenn. Crim. App. at Nashville), perm. to appeal denied , (Tenn. 1998); State v. Harris , No. 01C01-9309-CR-00304, 1994 WL 630504, at *1 (Tenn. Code Ann. At Nashville, Nov

ember 10, 1994). See also Wooden v. State , No. 03C01- 9303-CR-0069, 1993 WL 313643, at *2 (Tenn. Crim. App . at Knoxville, Aug ust 13, 1993)(the petitioner’s complaint that the guilty plea judgment was constitutionally deficient because of ineffective assi stance of counsel, even if true, would make the judgment merely voidable and not void). Simil arly, challenges to the voluntary or knowing nature of a gui lty plea can be made only by a petition for post-conv iction relief. Archer v. State , 851 S.W.2d 157, 164 (Tenn. 1993). See also Neal v. State , 810 S.W.2d 131, 134 (Tenn. 1991)(failure of a trial cou rt to give the full l itany of Boykin rights rendered the judg ment voidable rather than v oid). Additionally, to the extent that a trial court’s compliance with Rule 11 is intended to ensure the voluntary and knowing nature of a guilty plea, a trial court’s failure to comply with Rule 11 in accepting a guilty

plea is properly addr

essed in post-convicti on proceedings. See State v. Lord , 894 S.W.2d 312, 316 (Tenn. Crim. App. 1994)(“the focus of the inquiry at a guil

ty plea hearing is on

whether or not the plea i s being voluntarily and intell igently made an d the pro cedural requir ements of Mackey

and Rule 11 ... insure that the record will show that such a plea occurs”).

Second, the petitioner asserts that the trial court could not impo se8 consecutive sentencing , because his crimes occur red within a twenty

-four hour period of time. Generally,a petitioner may chall enge an illegal sentence in habeas corpus proceedings. Cupples v. State , N o. 02 C0 1- 95 11 -C C- 00 33 3, 19 96 WL 601730, at *1 (Tenn. Crim. App. at J ackson, October 22, 1996). See also State v. Burkhart , 566 S.W.2d 871, 873 (Tenn. 1978). However,nothing in the law at the time of the petitioner’s offenses precl uded consecutive sentencing for offenses occurring withi n a twenty-four hour per iod. At the time of the appellant’s offenses and at the time of his guilty plea and sentencing, consecutive sentencing was governed in part by

our supreme court’s decis ion in Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976). In that case, the court rejected the petitione r’s argument that in determ ining wheth er or not t o senten ce a defe ndant to consecut ive sentences, the trial judg e [wa]s required to take into consideration the fact that all of the offenses arose out of one si ngle criminal episode or were inspired by the same general intent and minutel y limited in both time and space. Indeed, Tenn. Code Ann. § 40-35-210(e) (1988 ) explicitly eliminated the “single criminal episode” concept for purposes of imposing consecutive or concurrent sentences upon persistent offenders as provided by the supre me court. Therefore, we may also conclude th at the mere fact that the petitioner’ s offenses occurred within a twenty-

four hour period did not render his consecutive sentences cruel and unusual punishment. See Wooten v. State , 477 S.W.2d 767, 768 (Tenn. Crim. App. 1971)(imposition of cumulativ e sentence pursuant to a statute appr oved by the supreme court of this state did n ot constitute cruel and unusual punishment). See generally Holt v. McWherter , No. 01C01-9201-CR-00095, 1993 WL 207649, at *2 (Tenn. Crim. App. at Nashv ille, June 11, 1993)(sentenc e of life imprisonment for armed robbery did not constitute cruel and unusual punis hment).

Third, the petitioner assert s that the 1989 Sentencing Reform Ac t was4 We note that, alt hough the 1989 Act l owered and narrowed t he broad ranges of pun ishment available fo r robber y and arm ed robb ery, the petitione r’s senten ces are still within those ra nges. O f cou rse, w e are unab le to de term ine fro m th e lim ited re cord befo re us the s pec ific ran ge th at wo uld have been applic able t o this petitio ner u nde r the 1 989 Act. In any ev ent, a s we subs equ ently conclud e, the trial cou rt applied the correct law in senten cing the p etitioner.
9 in effect at the time of his guilty plea and sentencing in Jul y, 1989. Therefore, he contends that his sentence is void, because the trial court failed to apply the 1989 Act in his case. Moreov er, the petitioner states th at, because he was not sentenc ed under the 1989 Act, (1) his c onfinement constitutes ex post facto punishment; (2) he was denied equal protec tion of the law; (3) he w as denied due process of law;and (4) his sentence constitut es cruel and unusual punishment. Initially, implicit in the petition is the assumption that the petitioner would have received a lesser sentence under the 1989 Act. 4 Thus, the factual allegations of this case do not pe rmit invocation of an ex post facto challenge. See, e.g., Yates v. Sundquist , No. 01C01- 9707-CC-00299, 1998 WL 299290, at *2 (Tenn. Crim. Ap p. at Nashville), perm. to appeal denied , (Tenn. 1998). Furthermore, the petitioner’s assertio n that the 1989 Act was in effect at the time of his guilty plea and sentenc ing is erroneous. Inst

ead, the effective date of the Act was N ovember 1, 1989, several months after the imposition of the petitioner’s sentence. In State ex rel. Crum v . McWherter , No. 02C01-9108-CC-00181, 1992 WL 99029, at **3-4 (Tenn. Crim. App. at Jackson, May 13, 1992), our court held that the 1989 Act, by its own terms, does not apply to sentences imposed prior to the effective date of the Act, and that failur e to apply the Act to those penalties does not v iolate equal protection pr inciples. See also State ex rel. Jones v. M cWherter , No. 01C01-9204-CR-00124, 1992 WL 335918, at *7 (Tenn. Crim. App. at Nashv ille, November 18, 1992); Simpson v. State , No. 01C01- 9203-CR-00098, 1992 WL 335937, at *2 (Tenn. Crim. Ap p. at Nashville, Nov ember 18, 1998). Additionally,this court has held that the failure to apply the 1989 Act to previously imposed s

entences does not violate pr inciples of due process. Barrett v.5 An allegat ion of a Brady violation may, i n some cases, tollthe appli cable stat ute of li mitations f or filing a petition for post-co nviction relief. Arm strong v. S tate , No. 01C01-9311-CR-00403, 1994 WL 695424, at * *3-4 (Tenn. Cri m. App. at Nashvil le, December 8, 1994) . However, i n this case t he petitioner all eged that t he prosecutor withheld t he foll owing inf ormation: That the victims in th is case a t bar, being two wom en, one a n X-Fe lon, were a t a public are a, plenty of stre et lights, and view by othe r people. The a ppellant no where a lleges that h e hims elf was n ot aware of these facts at the time of h is guilty plea or t hat these fact s only came to l ight fol lowing t he expiration of the appl icable st atute of limitat ions.
10 State , No. 02C01-9508-CC-00233, 1997 WL 81658, at **3-4 (Tenn. Crim. App. at Jackson), perm. to appeal denied , (Tenn. 1997). Finally , assuming that the petitioner would have

received a reduced penalt y under the new Act, thi s fact alone does not render a sentence under the prior law dispro portionate to the crime. Id. at *3. See also State ex rel. Jones , No. 01C01-9204-CR-00124, 1992 WL 335918, at *3.

The petitioner’s remaining claims are similarly

inappropriate for consideration in habeas corp us proceedings. A double j eopardy claim is not cognizable in a habeas c orpus proceeding. Harvey v. State , No. 03C01-9510-CC00307, 1996 WL 368208, at 1 (Tenn. Crim. App. at Knoxv ille, June 28, 1996). Also, because a guilty plea waives any argument concerning venue, venue in this case will not constitute a cognizable claim in a petition for habeas corpus rel ief. Ellis v. Carlton , No. 03C01-9711-CR-00493, 1998 WL 597140, at *2 (Tenn. Crim. App. at Knoxville, September 10,1998), perm. to appeal denied , ( Te nn . 1 99 8) . We additionally conclude th at allegations concerni ng a possible violation of the rule set forth in Brady v. Maryl and , 373 U.S. 83, 83 S.Ct. 1194 (1963), 5 and allegations of prosecutorial misconduct would require investigation of facts other than those contained on the face of the judgment or the record of the proceedings an d, accordingly, are not

cognizable in this case. Martin , No. 02C01-9804-CC-00101, 1998 WL 467098, at *1.11 Finally, the petitioner alleges that the indictment was defective in his case. However, not all defects in an indictment ar e cognizable grounds

for habeas corpus relief. See, e.g. Thompson v. Carlton , N o. 03 C0 1- 96 11 -C R- 00 39 5, 19 98 WL 19932, at **1-2 (Tenn. Crim. App.at Knoxville, Januar y 22, 1998), perm. to appeal denied , (Tenn. 1998). The petitioner contends that the State’s use of the word “unlawful” in the indic

tment rendered it void, bec ause use of the word did “not comply to statute.” We acknowledge that the ap plicable statute employs the term “felonious.” Tenn. Code Ann. § 39- 2-501(1988). However, the petitioner does not claim that the term “felonious” was omitted from the indictment , and we conclude that the insertion of the wor d “unlawful,” without more, was insufficient to di vest the trial court of jurisdic

tion over the petitioner

’s case.
For the foregoing reasons , we affirm the judgment of the tri al court.

________________________ NORMA MCGEE OGLE, J udge

CONCUR:

_______________________ JOHN H. PEAY, Judge

________________________ JOSEPH M. TIPT ON, Judge