IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 22, 2010
NICHOLAS SHANE BREWER v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Wayne County
No. 14689 Stella Hargrove, Judge
No. M2009-02522-CCA-R3-HC - Filed July 22, 2010
The petitioner, Nicholas Shane Brewer, pled guilty to attempted aggravated sexual battery,
a Class C felony, in May 2006, receiving a negotiated sentence of six years, as a Range I
standard offender, in the Tennessee Department of Correction. He did not seek a direct
appeal or post-conviction relief. The petitioner filed a petition for habeas corpus relief on
September 23, 2009. The habeas corpus court summarily denied relief. On appeal, the
petitioner claims that the court erred by summarily dismissing his petition, arguing that (1)
the original judgment against him was void because it did not reflect the mandatory
imposition of a sentence of community supervision for life, and the trial court did not have
jurisdiction to amend the judgment; (2) he entered his guilty plea involuntarily and
unknowingly; and (3) he received ineffective assistance of counsel. Following our review,
we affirm the judgment of the habeas corpus court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J.C. M CL IN, J., delivered the opinion of the court, in which J ERRY L. S MITH and T HOMAS T.
W OODALL, JJ., joined.
Nicholas S. Brewer, Pro Se, Tiptonville, Tennessee.
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; T. Michel Bottoms, District Attorney General, for the appellee, State of
Tennessee.
OPINION
Background
The petitioner, Nicholas Shane Brewer, pled guilty to attempted aggravated sexual
battery in May 2006, receiving a negotiated sentence of six years, as a Range I standard
offender, in the Tennessee Department of Correction. He did not seek a direct appeal or
post-conviction relief. The petitioner filed a petition for habeas corpus relief on September
23, 2009. The habeas corpus court summarily denied the petition.
Analysis
On appeal, the petitioner claims that the court erred by summarily dismissing his
petition, arguing that (1) the original judgment against him was void because it did not reflect
the mandatory imposition of a sentence of community supervision for life, and the trial court
did not have jurisdiction to amend the judgment; (2) he entered his guilty plea involuntarily
and unknowingly; and (3) he received ineffective assistance of counsel. The state responds
that (1) the trial court properly amended the judgment, which reflected an illegal sentence,
and (2) the petitioner’s claims of an involuntary guilty plea and ineffective assistance of
counsel are not cognizable in a proceeding for habeas corpus relief. We agree with the state.
Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas
corpus relief. Tennessee Code Annotated sections 29-21-101 et seq. codify the applicable
procedures for seeking a writ. The grounds upon which a writ of habeas corpus may be
issued are very narrow. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). A writ of
habeas corpus is available only when it appears on the face of the judgment or the record of
the proceedings upon which the judgment was rendered that a court was without jurisdiction
to convict or sentence the defendant or that the defendant is still imprisoned despite the
expiration of his sentence. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State,
833 S.W.2d 60, 62 (Tenn. 1992). The purpose of a habeas corpus petition is to contest void
and not merely voidable judgments. Archer, 851 S.W.2d at 163. A void judgment is a
facially invalid judgment, clearly showing that a court did not have statutory authority to
render such judgment; whereas, a voidable judgment is facially valid, requiring proof beyond
the face of the record or judgment to establish its invalidity. See Taylor v. State, 995 S.W.2d
78, 83 (Tenn. 1999). The burden is on the petitioner to establish, 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). Moreover, it is permissible for a trial court to summarily
dismiss a petition for habeas corpus relief, without the appointment of counsel and without
an evidentiary hearing, if the petitioner does not state a cognizable claim. See Hickman v.
State, 153 S.W.3d 16, 20 (Tenn. 2004).
First, the petitioner contends that the original judgment against him was void on its
face because it did not reflect the mandatory imposition of sentence of community
supervision for life. Furthermore, he argues that the trial court did not have jurisdiction to
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amend the judgment. The state agrees that the original judgment reflected an illegal sentence
but asserts that the corrected judgment reflects a legal sentence. Because the petitioner pled
guilty to attempted aggravated sexual battery, he was subject to Tennessee Code Annotated
section 39-13-524(a), which imposes a mandatory sentence of community supervision for
life. Additionally, Tennessee Code Annotated section 39-13-524(b) requires that the
judgment of conviction reflect that sentence. This court has previously held that a “failure
to include the community supervision for life provision[]” resulted in an illegal sentence.
State v. Bronson, 172 S.W.3d 600, 601-02 (Tenn. Crim. App. 2004). Generally, a trial court
may amend a judgment prior to the judgment becoming final, which occurs after thirty days
or when a notice of appeal is filed. See State v. Green, 106 S.W.3d 646, 648-49 (Tenn.
2003); Tenn. R. App. P. 4(a). However, “[a]n illegal sentence renders a judgment of
conviction void, and a trial court may correct it at any time.” Bronson, 172 S.W.3d at 602
(citing State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978); Cox v. State, 53 S.W.3d 287,
292 (Tenn. Crim. App. 2001)). In this case, the original judgment, filed May 22, 2006,
reflected an illegal sentence because of the trial court’s failure to include the sentence of
community supervision of life. See Bronson, 172 S.W.3d at 601-02. However, the trial court
retained jurisdiction to amend the judgment to reflect a legal sentence. Id. at 602. We
conclude that the petitioner’s amended judgment of conviction, as filed July 28, 2009, is not
void because it provides for a sentence of community supervision for life. Therefore, the
petitioner’s argument is without merit.
The petitioner next argues that he entered his guilty plea involuntarily and
unknowingly because he was unaware that the offense to which he was pleading mandated
a sentence of community supervision for life. Additionally, the petitioner claims that he
received ineffective assistance of counsel because his attorney did not inform him that
attempted aggravated sexual battery mandated a sentence of community supervision for life.
The petitioner is not entitled to habeas corpus relief. The petitioner’s claims are not
cognizable because they require proof beyond the face of the record or judgment to establish
the invalidity of his conviction. Archer, 851 S.W.2d at 164. To reiterate, a defect which
renders a judgment merely voidable is not subject to collateral attack via habeas petition.
Id. at 163.
Conclusion
Based on the foregoing reasons, we conclude that the petitioner failed to state a
cognizable claim for habeas corpus relief, and we affirm the habeas corpus court’s order
summarily dismissing his pro se petition for habeas corpus relief.
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J.C. McLIN, JUDGE
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