Cannon v. State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
AUGUST SESSION, 1998 December 10, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
DARREL D. CANNON, ) C.C.A. NO. 03C01-9801-CC-00012
)
Appe llant, )
) BLEDSOE COUNTY
V. )
)
JAMES BOWLEN, Warden, ) HON. CURTIS SMITH, JUDGE
and S TATE O F TEN NES SEE , )
)
Appellee. ) (HABEAS COR PUS)
FOR THE APPELLANT: FOR THE APPELLEE:
DARR EL D. C ANNO N, pro se JOHN KNOX WALKUP
STSRCF, Route 4, Box 600 Attorney General & Reporter
Pikeville, TN 37367
TODD R. KELLEY
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Petitioner, Darrel D. Cannon, appeals as of right the trial court’s dismissal
of his petition for writ of hab eas co rpus. W e affirm the judgm ent of the tria l court.
On September 29, 1982, Petitioner was sentenced upon convictions of two
counts of voluntary manslaughter, two counts of use of a firearm during the
commission of a felony (voluntary m anslaughte r), and two counts of armed ro bbery.
Petitioner’s aggregate sentence for the convictions totaled thirty-four (34) years.
Petitioner filed a pro se writ of habeas corpus on September 15, 1997. He
later filed a m otion to dism iss the State’s motio n to dis miss the pe tition, which the
trial court treated as an amendment to the petition for writ of habeas corpu s. In his
pro se pleadings, the Petitioner has asserted that the sentences are void because
of the cons ecutive an d conc urrent se ntencing structure im posed by the trial co urt,
and that the trial court illegally enhanced his sentence multiple times due to use of
a firearm .
It is a well-established principle of law th at the re med y of hab eas c orpus is
limited in its nature a nd its sco pe. Archer v. State, 851 S.W.2d 157, 161-62 (Tenn.
1993); Passarella v. State, 891 S.W .2d 619 , 626 (T enn. C rim. App . 1994). In
Tennessee, habe as co rpus re lief is available only if “‘it appears upon the face of the
judgment or the record of the proceedings upon which the judgment is rendered’ that
a convicting court was without jurisdiction or authority to sentence a defendant, or
that a defendant’s sentence of imprisonm ent or other restraint ha s expired.” Archer,
851 S.W.2d at 164 (citation omitted in original). The petitioner has the burden of
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establishing either a void judgment or an illegal confinement by a preponderance of
the evidenc e. Pass arella, 891 S.W .2d at 627. Mo reover, where a judg men t is not
void, but is merely voidable, such judgment may not be collate rally atta cked in a suit
for habe as corp us relief. Id.
Tennessee Code Annota ted sectio n § 39-6 -1710(a )(3) [repea led; see Tenn.
Code Ann. § 39-17-1307] provides increased punishment for the offender who uses
a deadly w eapon in comm itting certain fe lonies. The subject statute does not crea te
a separate or distinct offense but provides increased punishment of the offender who
uses a dea dly wea pon in com mitting certain felonies. Wa lker v. State, 606 S.W.2d
531, 532-33 (Tenn. 1980). Pursuant to subsection (a)(3) of the repealed statute, the
five (5) year enhancement must run consecutively with any other period of
confinem ent. Furtherm ore, Petition er adm its that one of his sentences has not yet
expired, thereby making Petitioner’s first claim not cognizable under the habeas
corpus statute since h is senten ce has not expire d. See Tenn . Code Ann. § 29-21-
101 - 13 0.
Petition er’s claims th at he wa s subjec t to illegal multiple enhancement factors,
and that the conse cutive/concurren t sentencing struc ture is “illegal,” are not proper
grounds for relief in a habeas corpus p rocee ding. T he en hanc eme nt alleg ation, if
meritorious, would merely make Petitioner’s judgments voidable, not void. The
same is true on the consecutive/concurrent sentencing structure. Therefore, these
claims are also not c ogniza ble und er the ha beas c orpus s tatute. See Tenn. Code
Ann. § 29-21-101 - 130.
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Based on the foregoing, we find that Petitioner has failed to carry his burden
of establishing by a preponderance of the evidence either a void judgment or an
illegal confinem ent. Pass arella, 891 S .W .2d at 6 27. If it is clear from the face of the
petition that the petitioner is not entitled to relief, then the trial court is not required
to hold a hearing or inquire into the allegations in the petition, but may dismiss the
petition summ arily. Id. We agree with the tria l court’s dism issal of P etitione r’s
petition.
Accordingly, the judgment of the trial court is affirmed.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JOSEPH M. TIPTON, Judge
___________________________________
JOE G. RILEY, Judge
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