Cecil Collins v. State ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE July 28, 1999
APRIL 1999 SESSION Cecil Crowson, Jr.
Appe llate Court
Clerk
CECIL COLLINS, * C.C.A. NO. 03C01-9805-CR-00192
APPELLANT, * KNOX COUNTY
VS. * Hon. Ray L. Jenkins, Judge
STATE OF TENNESSEE, * (Habeas Corpus)
APPELLEE. *
For Appellant: For Appellee:
Cecil Collins, #209223 John Knox Walkup
Northeast Correction Center Attorney General and Reporter
P.O. Box 5000 450 James Robertson Parkway
Mountain City, TN 37683 Nashville, TN 37243-0493
Todd R. Kelley
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North, 2nd Floor
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED: ____________________
AFFIRMED
NORMA MCGEE OGLE, JUDGE
OPINION
On April 21, 1998, the petitioner, Cecil Collins, citing Tenn. Code Ann. § 29-21-101,
filed pro se a “Writ of Error/Petition to Correct and/or Amend Sentence” in the Knox County Criminal
Court. On April 30, 1998, the trial court summarily dismissed the petition, finding that the petition did
not conform to the requirements of the habeas corpus statute and failed to present a cognizable
ground for relief. Following a review of the record, w affirm the judgm of the trial court.
e ent
In his petition, the appellant alleges that he pled guilty in the Knox County Criminal
Court to second degree murder and, in accordance with a plea agreem was sentenced to forty
ent,
years incarceration in the Tennessee Departm of Correction. 1 The petitioner does not allege that
ent
the convicting court was without jurisdiction or authority to sentence him, or that his sentence has
expired. Rather, the petitioner argues that he was denied the right to appeal his guilty plea; he was
improperly sentenced as a Range II multiple offender, and that the trial court erred by ordering the
petitioner to pay fees to the criminal injury fund in the amount of one-hundred and seven ($107.00)
dollars.
The petitioner’s claim that his sentence as a Range II multiple offender is illegal is not
cognizable in a habeas corpus proceeding. It is well established that habeas corpus relief is only
available if it appears on the face of the judgm or the record of the proceeding upon which the
ent
judgment is rendered that a convicting court was without jurisdiction or authority to sentence a
defendant, or that a defendant’s sentence of imprisonment or other restraint has expired. Archer v.
State, 851 S.W.2d 157, 160 (Tenn. 1993); Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App.
1994). Moreover, claims based upon factual disputes that were already resolved at the sentencing
hearing, such as a petitioner’s sentencing range, are not subject to relitigation in a habeas corpus
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We have no record of any proceedings occurring prior to these habeas corpus proceedings, including the judgment
of conviction.
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proceeding. State ex rel. Holbrook v. Bomar, 364 S.W.2d 887, 889 (Tenn. 1963).
The petitioner also alleges that as a result of the trial court’s failure to advise himof
his “appellate rights,” he was effectively denied the right to appeal his guilty plea. As a general rule, a
defendant does not have a right to appeal his sentence after entering a valid plea of guilty and being
sentenced pursuant to the terms of a plea agreement. State v. McKissack, 917 S.W.2d 714, 715
(Tenn. Crim. App. 1995). Rule 3(b)(2), Tenn. R. App. P., provides as follows:
In criminal actions an appeal as of right by a defendant lies from any
judgment of conviction entered by a trial court . . . on a plea of guilty .
. . if the defendant seeks review of his sentence and there was no
plea agreement concerning the sentence, or if the issues presented
for review were not waived as a matter of law by the plea of guilty or
nolo contendre and if such issues are apparent from the record of the
proceedings already had.
(Emphasis added). Rule 37(b)(2), Tenn. R. Crim. P., also bars relief:
(b) When an Appeal Lies. An appeal lies from any order or judgment
in a crim proceeding where the law provides for such appeal, and
inal
from any judgment of conviction:
***
(2) upon a plea of guilty or nolo contendre if:
***
(ii) defendant seeks review of the sentence set and there was
no plea agreement under Rule 11(e).
(Emphasis added).
Additionally, the petitioner alleges that the trial court had an obligation to advise the
petitioner of the availability of post-conviction rights prior to accepting his guilty plea. Yet, the
petitioner cites no authority for the proposition that a trial court must advise a defendant of the
availability of post-conviction proceedings prior to accepting his guilty plea. In any event, we note that
the failure to advise the defendant fully of rights waived by the entry of a guilty plea renders the
judgm voidable rather than void, thus making petitioner’s claim in this case not cognizable in
ent
habeas corpus proceedings. State v. Neal, 810 S.W.2d 131, 134 (Tenn. 1991). Therefore, this issue
is without merit.
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Next, the petitioner alleges that the trial court erred by ordering the petitioner to pay
fees to the criminal injury fund in the amount of one-hundred and seven ($107.00) dollars. Specifically,
the petitioner contends that the trial court erred by ordering the petitioner to pay restitution along with
serving a sentence of incarceration.
Initially, we note that the procedural provisions pertaining to habeas corpus relief are
mandatory and m be scrupulously followed. Archer, 851 S.W.2d at 165. We note that the petitioner
ust
did not attach the judgment of conviction in his case to his petition for habeas corpus relief, as required
by Tenn. Code Ann. § 29-21-107(b)(2) (1980). A trial court may dismiss a petition for failure to comply
with this requirement. State ex rel. Wood v. Johnson, 393 S.W.2d 135, 136 (Tenn. 1965). It is the
duty of the appellant to prepare an adequate record to allow a meaningful review on appeal. Tenn. R.
App. P. 24(b); State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993); State v. Bennett, 798 S.W.2d
783, 790 (Tenn. Crim. App. 1990). Therefore, due to the minimal record before this court, we are
unable to address this claim.
Accordingly, the judgment of the trial court is affirmed.
__________________________________
Norma McGee Ogle, Judge
CONCUR:
______________________________
Jerry L. Smith, Judge
_______________________________
Joe G. Riley, Judge
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