Kenneth Paul Dykas v. David Mills, Warden

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 26, 2008
KENNETH PAUL DYKAS v. DAVID MILLS, Warden
Direct Appeal from the Criminal Court for Morgan County
No. 9351 E. Eugene Eblen, Judge
No. E2007-02230-CCA-R3-HC - Filed March 31, 2008
The Petitioner, Kenneth Paul Dykas, was convicted by a jury of first degree premeditated murder,
especially aggravated robbery, and conspiracy to commit especially aggravated robbery and
sentenced to life without the possibility of parole plus twenty-four years. This Court affirmed those
judgments on direct appeal.1 He filed a petition for post-conviction relief claiming he failed to
receive the effective assistance of counsel because counsel allegedly failed to properly strike a juror,
failed to prepare him for trial, and failed to prepare a witness for examination. The post-conviction
court dismissed the petition, and we affirmed that decision.2 The Petitioner subsequently filed a
petition for habeas corpus relief, again claiming that his trial counsel was ineffective for failing to
properly strike a juror and for failing to object to a jury instruction. The habeas court dismissed the
petition, and, after a thorough review, we affirm the judgment of the habeas court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and J.C.
MCLIN , JJ., joined.
Kenneth Paul Dykas, Wartburg, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; John
Bledsoe, Senior Counsel; Deshea Dulany, Assistant Attorney General, for the Appellee, the State
of Tennessee.
OPINION
1
See State v. Kenneth Paul Dykas, No. M2000-01665-CCA-R3-CD, 2002 W L 340600, at *1-15 (Tenn.
Crim. App., at Nashville, Mar. 5, 2002), perm. app. denied (Tenn. July 15, 2002).
2
See Kenneth Paul Dykas v. State, No. M2003-01490-CCA-R3-PC, 2004 W L 300105, at *1-4 (Tenn. Crim.
App., at Nashville, Feb. 17, 2004), perm. app. denied (Tenn. June 14, 2004).
I. Analysis
The State filed a motion to dismiss the petition because the petition did not state a cognizable
habeas corpus claim, and that motion was granted without a hearing. Accordingly, there is no
testimony or argument to summarize from the habeas court. On appeal, the Petitioner asserts the
habeas court erred in concluding his habeas corpus petition did not state a cognizable habeas corpus
claim.
Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief. See Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007). Although the right is guaranteed
in the Tennessee Constitution, the right is governed by statute. T.C.A. § 29-21-101 (2006) et seq.
The determination of whether habeas corpus relief should be granted is a question of law and is
accordingly given de novo review. Smith v. Lewis, 202 S.W.3d 124, 127 (Tenn. 2006); Hart v. State,
21 S.W.3d 901, 903 (Tenn. 2000). Although there is no statutory limit preventing a habeas corpus
petition, the grounds upon which relief can be granted are very narrow. Taylor v. State, 995 S.W.2d
78, 83 (Tenn. 1999). It is the burden of the petitioner to demonstrate 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). In other words, the very narrow grounds upon which a habeas corpus petition can
be based are as follows: (1) a claim there was a void judgment which was facially invalid because
the convicting court was without jurisdiction or authority to sentence the defendant; or (2) a claim
the defendant’s sentence has expired. Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000);
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “An illegal sentence, one whose imposition
directly contravenes a statute, is considered void and may be set aside at any time.” May v. Carlton,
— S.W.3d —, 2008 WL 160695, at *3 (Tenn. 2008) (citing State v. Burkhard, 566 S.W.2d 871, 873
(Tenn. 1978)). In contrast, a voidable judgment is “one that is facially valid and requires the
introduction of proof beyond the face of the record or judgment to establish its invalidity.” Taylor,
995 S.W.2d at 83; see State v. Richie, 20 S.W.3d 624, 633 (Tenn. 2000).
The Petitioner’s complaint, that his counsel was ineffective, is a classic claim that his
judgment is voidable, not void, because it requires proof beyond the face of the record. There is no
allegation that the trial court did not have jurisdiction or authority to sentence the petitioner or that
his sentence has expired. This claim is not one proper for a habeas corpus proceeding. Thus, the
habeas court was correct to summarily deny the petition. See State ex rel. Byrd v. Bomar, 381
S.W.2d 280, 283 (Tenn. 1964).
II. Conclusion
After due consideration of the issues, we conclude that the habeas court did not err in
dismissing the Petitioner’s petition for habeas corpus relief. As such, we affirm the judgment of the
habeas court.
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ROBERT W. WEDEMEYER, JUDGE
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