         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


 HORATIO RICE v. DAVID MILLS, WARDEN (STATE OF TENNESSEE)

                Direct Appeal from the Circuit Court for Lauderdale County
                           No. 5903 Joe H. Walker, III, Judge



                     No. W2004-02517-CCA-R3-HC - Filed April 12, 2005




The Petitioner, Horatio L. Rice, appeals the lower court’s denial of his petition for habeas corpus
relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule
20, Rules of the Court of Criminal Appeals. The Petitioner has failed to establish that his
convictions are void or that his sentence has expired. Accordingly, we grant the State’s motion and
affirm the judgment of the trial court.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the
Court of Criminal Appeals

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and J.C. MCLIN ,
JJ. joined.

Horatio Rice, pro se.

Paul G. Summers, Attorney General & Reporter; Blind Akrawi, Assistant Attorney General, for the
appellee, the State of Tennessee.



                                  MEMORANDUM OPINION


       On November 4, 1998, the Petitioner pled guilty in the Marshall County Circuit Court to one
count of theft of property, a class C felony, one count of aggravated assault, a class D felony, one
count of theft of property, a class D felony, and one count of burglary of an automobile, a class E
felony. For these convictions, the trial court imposed an effective sentence of eight years in the


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Department of Correction. The Petitioner is currently confined at West Tennessee State Penitentiary
in Henning, Tennessee.

         On September 16, 2004, the Petitioner filed, pro se, a petition for writ of habeas corpus relief
in the Lauderdale County Circuit Court. As grounds for relief, he alleged that the trial court was
without jurisdiction to sentence the Petitioner to more than an effective six-year sentence. Petitioner
asserts that the effective eight-year sentence imposed by the trial court “violates the sentencing range
of all four classes; D, D, E, & C per T.C.A. 40-2-101 dealing the classes of felonies. . . .” On
September 20, 2004, the trial court denied habeas corpus relief. In denying relief, the trial court
found that “[P]etitioner’s sentence has not expired and the court had jurisdiction to sentence the
defendant to such sentence. Each sentence was within the range, they were run consecutive.”
Petitioner filed a timely notice of appeal on October 7, 2004.

        The State has filed a motion requesting that this Court affirm the decision of the lower court
pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State contends that the Petitioner
has failed to allege a ground which renders his convictions void.

         The grounds upon which habeas corpus relief may be granted in this state are narrow.
Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004) (citations omitted). Relief will be granted if the
petition establishes that the challenged judgment is void. Id. A judgment is void “only when ‘[i]t
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 imprisonment or other restraint has expired.” Hickman, 153 S.W.3d at 20
(quoting State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000) (citations omitted)). The petitioner bears
the burden of establishing either a void judgment or an illegal confinement by a preponderance of
the evidence. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). If the petitioner
carries this burden, he is entitled to immediate release. Id. However, if the habeas corpus petition
fails to demonstrate that the judgment is void or that the confinement is illegal, neither appointment
of counsel nor an evidentiary hearing are required and the trial court may properly dismiss the
petition. Hickman, 153 S.W.3d at 20 (citations omitted).

        Petitioner contends that the trial court lacked jurisdiction to impose the effective eight-year
sentence. He asserts that the trial court could only impose an effective six-year sentence. In support
of his position, Petitioner relies solely upon section 40-2-101, Tennessee Code Annotated.
Petitioner’s reliance upon this code section is misplaced. Section 40-2-101, Tennessee Code
Annotated, relates to the limitations of prosecutions, and not to the minimum or maximum range of
sentence for different classes of felonies.

       The judgments of conviction are not void on their face. Neither has the effective eight-year
sentence expired. The Petitioner has failed to meet his burden of proof entitling him to the
immediate release from confinement.




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        Accordingly, it is ordered that the State’s motion is granted. The judgment of the trial court
is affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.




                                               ___________________________________
                                               ALAN E. GLENN, JUDGE




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