Cecil Collins v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 28, 1999
• Docket: 03C01-9805-CR-00192
• Status: Published

Opinion

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

1 We have no record of any proceedings occurring prior to these habeas corpus proceedings, including the judgment of conviction.

2 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.

3 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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