### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs A pr il 29, 200 8

HAR RISO N M ELV IN X . P EAR ISON v. HO WAR D C AR LTON , WA RD EN

Appeal from t he Criminal Court for Johns on Coun ty No. 5031 Robert

E. Cup p, Jud ge

No. E2007-02525-CC A-R3- HC - Filed August 14, 2008

Th e pe tit ion e r, Ha

rriso n M e lvi n X . Pe ari so n, wa s d e nie d h abe a s c or pu s re lie f by the Jo hn so n Co un ty Criminal Court from his 1997 conviction for aggr avate d arson a nd twenty-ye ar se ntence at 100 pe rc e nt s e rv ic e

. Onapp e a l, h e c on te nd s th a t th e a me nd e d ju dg me nt w ith10 0 p e rc e nt s e rv ic e is v oid and that he is entitled to serve the s entenc e at thirty perc ent as originally imposed. Upon re view, we hold that the t rial court properly dismiss ed the petition and affirm i ts order dismiss ing the petition.

Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

J OS EP H M. T I P TO N , P.J., delivered the opinion of the court, in which T H O M A S T. W OOD ALL and A LA N E. G LE NN , JJ., joined.

Har rison Melvin X. Pearison, Jr., Mountain City, Tennesse e, Pro Se.
Robert E. Cooper, J r. , Attorney Ge nera l and Reporter ; Cameron L. Hyde r, Assistant Attorney Gene ral; and A nthony W ade Clark, District Attorney G ener al, for the appellee , State of Tenne ssee.

OP IN ION

Acc ording to the rec ord, the pe titioner was convic ted of aggravated ar son in 1997 for burning his home on Marc h 1, 1996. He rec eived a twenty-ye ar sentenc e to be serve d as a Range I of fende r at thirty perc ent re lease elig i b i l i t y

. The pe titioner alleges that a fter he was inca rce rate d, the Depa rtment of C orre ction notified him that his sentence w as contra ry to Tenne ssee Code A nnotated section 40-35- 501(i), re quiring 100 perc ent servic e for certain enumer ated f

elonies, including aggra vated a

rson. The pe titioner was told that the tri al co u rt would be ente ring an a mended jud gme nt, a lth ough he all eges that he wa s n e ve r p ro vid e d w itha c op y o f the a me nd e d ju dg me nt. He f ile d the pre sent ac tion seeking habe as cor pus relief alleging both his original and amende d jud gme nts we re vo id b e c aus e he wa s f ir st i lle ga lly se nte nc e d a s a Ran ge I o ff e nd e r t o s e rv e tw e nty year s for a ggravated ar son with thirty perce nt r elea se eligibilit y and that the conviction court had no jurisdiction to amend the judgment sub s eq u en t l y to require 100 perc ent servic e. In an amende d petition, he raised th e additional ground that he w as improper ly sentence d above the presumptive sentenc e of fifteen years based upon fac ts found by the trial c ourt, contra ry to his Sixt h Amendment-2-

right to a jury trial as e xpresse d in Cunningham v. California, 549 U.S. 270, 127 S. Ct . 856 (2007) and Blakely v. W ashington, 542 U.S. 296, 124 S. C t. 2531 (2004). T h e trial court found that the petitioner did not state a c ognizable c laim and dismissed the petition.

On app e a l, the pe tit ion e r a rg ue s th a t th e se nte nc e wi th 1 00 pe rc e nt s e rv ic e is v oidbe c aus e he does not ha ve the require d number of felonies to be classified as anything other than a Range I offe nder. H e ar gues, contra ry to his positi on in the trial court, that the se ntence with thirty perce nt service should stand. He has not pursued the Sixth Amendment cla im on appeal. The state re sponds that the trial court corre ctly dismiss ed the pe tition first, because the petitioner fa iled to follow the proce dural re quirements for habea s corpus re lief, which r equire d him to attach a c opy of the jud gme nt f

ro m w hic h h e so ug ht re lie f, a nd se c on d, be c aus e a tr ia l cou rt re ta ins auth ority a t a ny tim e to corre ct an e rrone ous judgment, which was what occur red in the pr esent c ase.
Regarding the state’s procedur al default argume nt, it is correc t that, in genera l, a petitioner is r e qu ir e d to a tta c h a

c op y of the jud gme nt to his pe tit ion

. T. C.A . § 29 -2 1- 10 7( b) (2 ). Th e statut e pr ov ide s, howev er, th a t if a c op y is no t a tta c he d, “ a satis fa c tory r e a so n [ mus t be ] g ive n f or its absenc e.” I d. The inca

rce rate d p et itioner allege d that he wa s never provided with a c opy of the amende d judgment, and he attached instea d documents fr om the Depa rtment of Correc tion’s rec ords rega rding the terms of his senten ce

. Moreove r, the trial c ourt had the discr etion to consider the merits of the pe tition, even if the docume nts were not attache d. See Hickma n v. State, 153 S.W.3d 16 , 2 1( Te nn . 2 00 4) . T he tr ia l c ou rt c on sid e re d th e pe tit ion ’s me ri ts, a nd we wi ll c on sid e r the me ri ts of thi s a pp e a l.

We note that although the petitioner’s original sentenc e of twenty year s at thirty pe rce nt was contra ry to the law, the amende d sentenc e requiring 100 perc ent service was in acc ord with statute. See T.C.A. § 40-35- 501(i)(1) , (i)(2) (J). Trial courts re tain the authority to c orre ct illegal sentenc es at any time, eve n those which ha ve bec ome final. Moo d y v

. S t at e, 160 S.W.3d 512, 516 (Te nn. 2005); State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978). Thus, the s ubsequent action that the petitioner allege s was take n by the Hamilton County Criminal Court to c orre ct the original sente nce was not outside that court’s jurisdiction and did not result in a void s en tence . The trial c ourt properly found that the petitioner f ailed to state a

cogniza ble claim in this regar d.

In consider ation of the for egoing and the r ecor d as a w hole, the judgment of the trial court is affirme d.

___________________________________ JOSEPH M. TIPTON, PRES IDIN G JUDGE