Donald R. Jones v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED FEBRUARY SESS ION, 1998 May 5, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk DONALD R. JONES, ) C.C.A. NO. 03C01-9706-CR-00206 ) Appe llant, ) ) ) CARTER COUNTY VS. ) ) HON. LYNN W. BROWN STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Habea s Corpu s Relief)

FOR THE APPELLANT: FOR THE APPELLEE:

DONALD R. JONES JOHN KNOX WALKUP Pro Se Attorney General and Reporter Carter County Annex Caller #1 ELLEN H. POLLACK Roan Mountain, TN 37687 Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493

DAVID CROCKETT District Attorney General

KEN NET H C. B ALDW IN Assistant District Attorney Carter County Justice Center Elizabethton, TN 37643

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE

OPINION

On February 10, 1997, Appellant Donald R. Jones filed a petition for habeas corpus relief in the Carter County Criminal Court. On February 25, 1997 , the trial c ourt dis miss ed the petition beca use it fa iled to s tate a c laim upon which relief co uld be grante d. App ellant c hallen ges th e dism issal of h is petition. Afte r a review o f the record , we affirm th e judgm ent of the tria l court.

I. BACKGROUND

On January 9, 1969, Appellant was convicted of first degree murder and was given a n inety-nine year sen tence. Appe llant appealed a nd this Court revers ed Ap pellan t’s con viction b ased on erro neou s jury ins truction s. On A pril 22, 197 0, Appe llant pled g uilty to first degre e murd er and w as given a life sentence. Appellant did not appeal this conviction or sentence.

Appellant filed his petition for habeas corpus relief on February 10, 1997, alleging that he was the victim of prosecutorial and judicial vindictiveness. Specifically, Appellant claimed that he was the victim of prosecutorial vindictiveness because the assistant prosecutor was a relative of the victim. Appellant alleges the trial judge was vindictive because Appellant received a longer senten ce after a s uccess ful appea l.

The trial court dismissed the petition on February 25, 1997, because habeas corpus relief is only available when it appears on the face of the

-2-record that the court was without jurisdiction to convict or sentence a defendant or that the sentence had expired. The trial court also concluded that alth ough Appe llant’s cla ims w ould b e app ropria te for de termin ation if h is petition was considered to be a petition for post-conviction relief, Appellant would still not be entitled to any relief because his claims were barred by the statute of lim itations.

II. HABEAS CORPUS RELIEF

It is well-e stablis hed in Ten ness ee tha t habe as co rpus re lief is only available when a conviction is void because the convicting court was without jurisdic tion or a uthority to sen tence a defe ndan t, or that a defen dant’s senten ce has expired a nd the d efenda nt is being illegally restrain ed. Archer v. State, 851 S.W .2d 157 , 164 (T enn. 19 93); Johns v. Bowlen, 942 S.W.2d 544, 546 (Tenn. Crim. App. 1996). As this Court has previously stated:

A judgment of a court of general jurisdiction is presumed to be valid. This p resum ption is said to be co nclus ive unle ss the judgm ent is impeached by the record. If the court rendering a judgment has jurisdiction o f the perso n, the sub ject-ma tter, and ha s the auth ority to make the challenged judgment, the judgment is voidable, not void; and the judgment may not be collaterally attacked in a suit for habeas corpus relief.

Passa rella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994) (citations omitted).

Appellant’s petition for habeas corpus relief simply does not contain any allegation that the se ntencing court wa s without ju risdiction to a ccept his guilty plea or to sentence him neither is there any allegation that his sentence has expired. Ind eed, no thing in the record w ould sup port any s uch alleg ations.

-3-Here, Appellant’s claims that he was the victim of prosecutorial and judicial vindictiveness amount at most to an assertion that the judgment was voidable, not that the judgment was void. Therefore, the trial court correctly determined that Appellant had failed to either allege or present a ground that was cogniza ble in a su it for habea s corpu s relief.

III. POST-CONVICTION RELIEF

Initially, we note that the trial court properly determined whether Appellant would have been entitled to relief if his petition for habeas corpus relief was tre ated as a petition for post-con viction relief. See Tenn. Code Ann. § 40-30 -205(c) (1 997); Fredrick v. State, 906 S.W.2d 927, 929 (Tenn. Crim. App. 1993 ).

W e also conc lude th at the tria l court p roper ly deter mine d that A ppella nt would not have been entitled to relief even if his petition was treated as a petition for post-conviction relief. At the time of Appellant’s guilty plea and sentencing in 1970, there was no limitation as to when a post-conviction petition could be filed. However, in 1986, The Tennessee Legislature enacted a statute of limitations which stated that

A prisoner in custody under sentence of a court of this state must petition for post-conviction relief under this chap ter within three (3) years of the date of the final ac tion of the h ighest sta te appe llate court to which an appeal is taken or consideration of such petition shall be barred.

Tenn. Code Ann. § 40-30-102 (1986) (effective July 1, 1986). This new limitations period ap plied to existing cause s prospectively from the effective date of the statute. Carter v. S tate, 952 S.W .2d 417, 418 (Tenn. 199 7);

-4-Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). Because Appellant’s conviction and sentence became final in 1970, the statute of limitations expired in Appellant’s case on July 1, 1989.1 Therefore, the trial court cor rectly deter mined that even if Appellan t’s petition wa s consid ered to be a p ost-co nviction petition , he wo uld no t be en titled to re lief bec ause his claims were barred by the statute of limitations.

Accordingly, the judgment of the trial court is AFFIRMED.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ THOMAS T. WOODALL, JUDGE

___________________________________ WILLIAM B. ACREE, SENIOR JUDGE

1 On May 10, 1995, the legislature enacted the Post-Conviction Procedure Act of 1995, which included a one year statute of limitations and limited the number of petitions that could be filed in any particular c ase. See Tenn. Code Ann. § 40-30-202 (1995). The Tennessee Supreme Court has held that the new post-conviction act did not provide petitioners for whom the statute of limitations had expired under th e old pos t-conviction act any ad ditional time in which to file p etitions for p ost-con viction relief. Carter, 952 S.W.2d at 418.

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