IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 22, 2010

NICHOLAS SHANE BREWER v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Wayne County

No. 14689 Stella Hargrove, Judge

No. M2009-02522-CCA-R3-HC - Filed July 22, 2010

The petitioner, Nicholas Shane Brewer, pled guilty to attempted aggravated sexual battery,

a Class C felony, in May 2006, receiving a negotiated sentence of six years, as a Range I

standard offender, in the Tennessee Department of Correction. He did not seek a direct

appeal or post-conviction relief. The petitioner filed a petition for habeas corpus relief on

September 23, 2009. The habeas corpus court summarily denied relief. On appeal, the

petitioner claims that the court erred by summarily dismissing his petition, arguing that (1)

the original judgment against him was void because it did not reflect the mandatory

imposition of a sentence of community supervision for life, and the trial court did not have

jurisdiction to amend the judgment; (2) he entered his guilty plea involuntarily and

unknowingly; and (3) he received ineffective assistance of counsel. Following our review,

we affirm the judgment of the habeas corpus court.

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

J.C. MCLIN, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.

WOODALL, JJ., joined.

Nicholas S. Brewer, Pro Se, Tiptonville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant

Attorney General; T. Michel Bottoms, District Attorney General, for the appellee, State of

Tennessee.

OPINION

Background
The petitioner, Nicholas Shane Brewer, pled guilty to attempted aggravated sexual

battery in May 2006, receiving a negotiated sentence of six years, as a Range I standard

offender, in the Tennessee Department of Correction. He did not seek a direct appeal or

post-conviction relief. The petitioner filed a petition for habeas corpus relief on September

23, 2009. The habeas corpus court summarily denied the petition.

Analysis

On appeal, the petitioner claims that the court erred by summarily dismissing his

petition, arguing that (1) the original judgment against him was void because it did not reflect

the mandatory imposition of a sentence of community supervision for life, and the trial court

did not have jurisdiction to amend the judgment; (2) he entered his guilty plea involuntarily

and unknowingly; and (3) he received ineffective assistance of counsel. The state responds

that (1) the trial court properly amended the judgment, which reflected an illegal sentence,

and (2) the petitioner’s claims of an involuntary guilty plea and ineffective assistance of

counsel are not cognizable in a proceeding for habeas corpus relief. We agree with the state.

Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas

corpus relief. Tennessee Code Annotated sections 29-21-101 et seq. codify the applicable

procedures for seeking a writ. The grounds upon which a writ of habeas corpus may be

issued are very narrow. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). A writ of

habeas corpus is available only when it appears on the face of the judgment or the record of

the proceedings upon which the judgment was rendered that a court was without jurisdiction

to convict or sentence the defendant or that the defendant is still imprisoned despite the

expiration of his sentence. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State,

833 S.W.2d 60, 62 (Tenn. 1992). The purpose of a habeas corpus petition is to contest void

and not merely voidable judgments. Archer, 851 S.W.2d at 163. A void judgment is a

facially invalid judgment, clearly showing that a court did not have statutory authority to

render such judgment; whereas, a voidable judgment is facially valid, requiring proof beyond

the face of the record or judgment to establish its invalidity. See Taylor v. State, 995 S.W.2d

78, 83 (Tenn. 1999). The burden is on the petitioner to establish, by a preponderance of the

evidence, “that the sentence is void or that the confinement is illegal.” Wyatt v. State, 24

S.W.3d 319, 322 (Tenn. 2000). Moreover, it is permissible for a trial court to summarily

dismiss a petition for habeas corpus relief, without the appointment of counsel and without

an evidentiary hearing, if the petitioner does not state a cognizable claim. See Hickman v.

State, 153 S.W.3d 16, 20 (Tenn. 2004).

First, the petitioner contends that the original judgment against him was void on its

face because it did not reflect the mandatory imposition of sentence of community

supervision for life. Furthermore, he argues that the trial court did not have jurisdiction to

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amend the judgment. The state agrees that the original judgment reflected an illegal sentence

but asserts that the corrected judgment reflects a legal sentence. Because the petitioner pled

guilty to attempted aggravated sexual battery, he was subject to Tennessee Code Annotated

section 39-13-524(a), which imposes a mandatory sentence of community supervision for

life. Additionally, Tennessee Code Annotated section 39-13-524(b) requires that the

judgment of conviction reflect that sentence. This court has previously held that a “failure

to include the community supervision for life provision[]” resulted in an illegal sentence.

State v. Bronson, 172 S.W.3d 600, 601-02 (Tenn. Crim. App. 2004). Generally, a trial court

may amend a judgment prior to the judgment becoming final, which occurs after thirty days

or when a notice of appeal is filed. See State v. Green, 106 S.W.3d 646, 648-49 (Tenn.

2003); Tenn. R. App. P. 4(a). However, “[a]n illegal sentence renders a judgment of

conviction void, and a trial court may correct it at any time.” Bronson, 172 S.W.3d at 602

(citing State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978); Cox v. State, 53 S.W.3d 287,

292 (Tenn. Crim. App. 2001)). In this case, the original judgment, filed May 22, 2006,

reflected an illegal sentence because of the trial court’s failure to include the sentence of

community supervision of life. See Bronson, 172 S.W.3d at 601-02. However, the trial court

retained jurisdiction to amend the judgment to reflect a legal sentence. Id. at 602. We

conclude that the petitioner’s amended judgment of conviction, as filed July 28, 2009, is not

void because it provides for a sentence of community supervision for life. Therefore, the

petitioner’s argument is without merit.

The petitioner next argues that he entered his guilty plea involuntarily and

unknowingly because he was unaware that the offense to which he was pleading mandated

a sentence of community supervision for life. Additionally, the petitioner claims that he

received ineffective assistance of counsel because his attorney did not inform him that

attempted aggravated sexual battery mandated a sentence of community supervision for life.

The petitioner is not entitled to habeas corpus relief. The petitioner’s claims are not

cognizable because they require proof beyond the face of the record or judgment to establish

the invalidity of his conviction. Archer, 851 S.W.2d at 164. To reiterate, a defect which

renders a judgment merely voidable is not subject to collateral attack via habeas petition.

Id. at 163.

Conclusion

Based on the foregoing reasons, we conclude that the petitioner failed to state a

cognizable claim for habeas corpus relief, and we affirm the habeas corpus court’s order

summarily dismissing his pro se petition for habeas corpus relief.

___________________________________

J.C. McLIN, JUDGE

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