         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs November 14, 2006

         FREDRICK L. BROWN, JR. v. VIRGINIA LEWIS, WARDEN
                      and STATE OF TENNESSEE

                        Appeal from the Circuit Court for Bledsoe County
                            No. 52-2006     Buddy D. Perry, Judge



                    No. E2005-02549-CCA-R3-HC - Filed February 22, 2007


The Petitioner, Fredrick L. Brown, Jr., appeals the summary dismissal of his petition for writ of
habeas corpus. The Petitioner claims that the concurrent life sentences he is serving for two first
degree murder convictions are illegal and void because the second offense was committed while he
was out on bail for the first offense and that, under these circumstances, Tennessee law mandates
consecutive sentencing. A recent decision of the Tennessee Supreme Court compels our conclusion
that summary dismissal was proper. The judgment of the Bledsoe County Circuit Court is affirmed.

       Tenn. R. Ap. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE, JJ., joined.

Fredrick L. Brown, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
and J. Michael Taylor, District Attorney General, for the appellee, State of Tennessee.


                                                OPINION
         In the habeas corpus petition filed in the trial court, the Petitioner argued that his guilty pleas
to two counts of first degree murder were void in that the sentencing court lacked the authority to
accept a plea and enter concurrent life sentences, when concurrent sentencing was in direct
contravention of Rule 32(c)(3) of the Tennessee Rules of Criminal Procedure and Tennessee Code
Annotated section 40-20-111(b). The trial court in this habeas corpus proceeding summarily
dismissed the petition and did not grant the Petitioner’s request for counsel, and the Petitioner is
proceeding pro se on appeal. The record on appeal before this Court contains only the petition, the
State’s motion to dismiss the petition, the Petitioner’s response to the State’s motion to dismiss, and
the trial court’s order of dismissal.
       The facts underlying the convictions were set forth by this Court in the Petitioner’s post-
conviction appeal as follows:

                 [O]n April 27, 1993, the [Petitioner] entered guilty pleas to the September 5,
         1991, murder of Samuel R. Scott and the March 24, 1992, murder of Corey C.
         Strickland. The victim, Scott, was shot seven times while attempting to flee from the
         [Petitioner]. Three witnesses observed the shooting. The second victim, Strickland,
         was murdered by the [Petitioner] during the course of a robbery. Again, eyewitnesses
         were present at the murder scene.


Fredrick L. Brown v. State, No. 03C01-9701-CR-00034, 1998 WL 481941, at *1 (Tenn. Crim. App.,
Knoxville, Aug. 17, 1998), perm. to appeal denied, (Tenn. Mar. 22, 1999).1 The Petitioner did not
pursue a direct appeal from his convictions or sentences. He did seek post-conviction relief,
contending that his pleas were involuntary “because his trial counsel misled him as to the length of
sentences that would be imposed. ” Id. at *1. This Court denied relief. See id. at *3.

        The Petitioner attached to his habeas corpus petition copies of the two indictments for first
degree murder and the respective judgments of conviction, each entered on a plea of guilty, rendered
in the Criminal Court of Hamilton County. The copies of the judgments of convictions provided by
the Petitioner reflect that he pled guilty in Hamilton County on April 27, 1993, to two counts of first
degree murder and received a sentence of life for each conviction. Although entered on the same
day and by the same trial judge, the trial judge did not indicate on the judgments whether these two
sentences were to be served concurrently or consecutively. The offense date for each murder
conviction is different; however, the copies of the indictments submitted by the Petitioner do not
show a return date by the grand jury. According to the Petitioner, after he was charged with the first
murder—offense date September 5, 1991—he was released on bail but was then subsequently
arrested and charged with the second murder—offense date March 24, 1992

        On October 12, 2005, the State moved for summary dismissal of the petition on the basis
that, because the judgments did not reference each other, the Petitioner had failed to establish that
concurrent sentences were imposed in contravention of Tennessee Code Annotated section 40-20-
111(b). On the same day, the trial court entered an order of summary dismissal,2 concluding that the
Petitioner had failed to establish that the judgments were void and reasoning as follows:

                The Petitioner asserts that his sentences are in direct contravention of Tenn.
         Code Ann. Section 40-20-111, which mandates consecutive sentences when a
         defendant commits a felony while on bail and is convicted of both offenses.


         1
             The Petitioner has requested that we take judicial notice of this Court’s opinion in his post-conviction appeal.

         2
            The Petitioner’s response to the motion to dismiss, which was submitted on October 21, 2005, was not received
until after the order of summary dismissal had been filed.

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       However, the judgments do not order Petitioner’s sentences to be served
       concurrently. Neither judgment refers to the other. The Petitioner has failed to
       establish that the trial court imposed concurrent sentences in contravention of Tenn.
       Code Ann. Section 40-20-111. Since no illegality of the sentences are evident on the
       face of the judgments, the judgments are at most voidable and not void. Hogan v.
       Mills, 168 S.W.3d 753, 757 (Tenn. 2005).


It is from this determination that the Petitioner now appeals.


                                             ANALYSIS
        Initially, we note that the determination of whether to grant habeas corpus relief is a question
of law. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001), overruled in part by Charles G. Summers
v. State, – S.W.3d –, No. M2004-02806-SC-R11-HC, 2007 WL 160955, at *9 (Tenn. 2007). The
Tennessee Constitution guarantees a convicted criminal defendant the right to seek habeas corpus
relief. See Tenn. Const. art. I, § 15. However, the grounds upon which habeas corpus relief will be
granted are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A petition for habeas
corpus relief may only be granted when the judgment is shown to be void, rather than merely
voidable. Id. A judgment is void only when it appears upon the face of the judgment or the record
of the proceedings upon which the judgment is rendered that the convicting court was without
jurisdiction or authority to sentence a defendant or that a defendant’s sentence has expired. Archer
v. State, 851 S.W.2d 157, 164 (Tenn. 1993).

        A sentence imposed in direct contravention of a statute is illegal and thus void. Stephenson
v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000). On the other hand, a voidable judgment or sentence
is one which is facially valid and which requires evidence beyond the face of the judgment or the
record of the proceedings to establish its invalidity. Taylor, 995 S.W.2d at 83. A petitioner bears
the burden of establishing a void judgment or illegal confinement by a preponderance of the
evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). Furthermore, it is permissible for a
court to summarily dismiss a habeas corpus petition, without the appointment of counsel and without
an evidentiary hearing, if there is nothing on the face of the record or judgment to indicate that the
convictions or sentences addressed therein are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn.
Crim. App. 1994).

       At the outset, we note that the Petitioner has substantially complied with the pleading
requirements for filing a petition for writ of habeas corpus. See Tenn. Code Ann. § 29-21-107.
Relying on our supreme court’s ruling in McLaney, as he did in the trial court, the Petitioner
advances his argument on appeal: His guilty pleas were void because the concurrent sentences
imposed by the sentencing court as a result of the pleas were in direct contravention of the law.
Tennessee Code Annotated section 40-20-111 mandates, in pertinent part, as follows:




                                                  -3-
               In any case in which a defendant commits a felony while such defendant was
       released on bail in accordance with the provisions of chapter 11, part 1 of this title,
       and the defendant is convicted of both such offenses, the trial judge shall not have
       discretion as to whether the sentences shall run concurrently or cumulatively, but
       shall order that such sentences be served cumulatively.


Tenn. Code Ann. § 40-20-111(b). Furthermore, Rule 32(c)(3) of the Tennessee Rules of Criminal
Procedure provides for consecutive sentencing under the following circumstances:

               Where a defendant is convicted of multiple offenses from one trial or where
       the defendant has additional sentences not yet fully served as the result of the
       convictions in the same or other court and the law requires consecutive sentences, the
       sentence shall be consecutive whether the judgment explicitly so orders or not. This
       rule shall apply:

               (A) To a sentence for a felony committed while on parole for a felony;
               (B) To a sentence for escape or for a felony committed while on escape;
               (C) To a sentence for a felony where the defendant was released on bail and
               the defendant is convicted of both offenses; and
               (D) Any other ground provided by law.


Tenn. R. Crim. P. 32(c)(3).

        The habeas corpus court dismissed the petition in this case because the Petitioner failed “to
establish that . . . his judgments are void.” The State first contends that the trial court properly
dismissed the petition summarily because the Petitioner did not provide factual documentation to
support his argument. Although the Petitioner attached to his petition copies of the Hamilton County
indictments and judgments of his convictions, the Petitioner did not present any evidence to the trial
court to establish that he was, in fact, on bail during the commission of the offenses at issue.

        The Petitioner contends that Dwight K. Pritchard v. State, No. M2005-00594-CCA-R3-HC,
2005 WL 3487842, at *3 (Tenn. Crim. App., Nashville, Dec. 16, 2005) (Hayes, J., dissenting), perm.
to appeal filed, (Tenn. Feb. 14, 2006), is persuasive under the facts of this case. In Pritchard, this
Court, relying on McLaney, remanded for the appointment of counsel and an evidentiary hearing,
reasoning in part as follows:

               The procedural history of the habeas corpus case before us is almost identical
       to the history set forth in McLaney. The petitioner in McLaney, proceeding without
       the benefit of counsel, filed a habeas corpus petition challenging the constitutionality
       of his guilty pleas in light of the trial court’s imposition of concurrent sentences in
       contravention of Tennessee Code Annotated section 40-20-111(b) and Tennessee


                                                 -4-
Rule of Criminal Procedure 32(c)(3)(C). 59 S.W.3d at 92. The petitioner asserted in
his petition that he was released on bail for one charge of rape when he was
subsequently charged with third degree burglary and another offense of rape. Id. The
petitioner thereafter pled guilty to all three charges and the trial court imposed
concurrent sentences. Id.

        The habeas corpus court in McLaney denied relief on the petitioner’s claim.
Id. This Court affirmed the judgment on appeal. Jackie McLaney v. State, No.
M1998-00187-CCA-R3-CD, 1999 WL 1073689 (Tenn. Crim. App., Nashville, Nov.
29, 1999). This Court held that, if the facts alleged by the petitioner were true,
habeas corpus relief would not be available even though the sentences were void
because the habeas court, which was not the same court as the sentencing court, did
not possess the power under its habeas corpus jurisdiction to allow the withdrawal
of the guilty pleas or correct the illegal sentences. Id. at *2. Our supreme court
disagreed. The supreme court concluded that the petitioner’s sentence was subject
to being set aside at any time if the facts established that the sentence imposed by the
trial court was in direct contravention of the statute. McLaney, 59 S.W.3d at 94
(citing McConnell v. State, 12 S.W.3d 795, 798 (Tenn. 2000)). The court also noted,
however, that habeas corpus relief would be available only if it was evident on the
face of the judgment or the record of the underlying proceedings that the sentence
was illegal. Id. Although the petitioner in McLaney apparently did not present proof
that he was, in fact, on bail during the commission of the subsequent offenses, the
supreme court decided it was error for the habeas court to summarily dismiss the
petition. Id. Our supreme court stated:

                The trial court in this case, finding no clear proof in the
       documents submitted with the petition that the sentence was void,
       dismissed the petition. Had McLaney been represented by counsel,
       we would find no error in this dismissal. Had an attorney been
       appointed, if the record of the underlying proceedings clearly showed
       that the latter rape and burglary offenses were committed while
       McLaney was on bail, appointed counsel presumably would have
       brought those records to the attention of the court, and a
       determination whether the judgment was void could have been
       resolved on the merits. Indeed, McLaney filed a motion for
       appointment of counsel and clearly had a right to appointed counsel
       if the trial court found him to be indigent. Tenn. Sup. Ct. R. 13, §
       1(d)(4); Tenn. Code Ann. § 8-14-205 (1997). Under these
       circumstances, the trial court erred in failing to consider the motion
       for appointment of counsel prior to dismissal of the case.

Id. (footnote omitted). The supreme court remanded the case to the habeas court for
appointment of counsel and a determination of whether the petitioner was on bail


                                          -5-
         when he committed the latter offenses. Id. at 95. The court stated that if the record
         of the underlying convictions showed the petitioner was on bail, “then the sentence
         is void and the habeas corpus court is mandated by statute to declare it so.” Id. at 94.
         The habeas corpus court would then transfer the case to the convicting court to
         decide whether the petitioner’s guilty pleas were knowing and voluntary. Id. at 95.

Pritchard, 2005 WL 3487842, at *3-4.


        The State also contends that the trial court properly denied habeas corpus relief because the
judgments do not refer to one another and do not state that the sentences are to be served
concurrently. Thus, according to the State, there is no illegality evident from the face of the
judgments. The State does not mention the holding in McLaney in its brief but cites to Hogan v.
Mills, 168 S.W.3d 753 (Tenn. 2005), in order to distinguish the facts in this case from the facts in
McLaney. Similarly, the habeas corpus court did not refer to McLaney in its dismissal order but only
cited to Hogan.

        In Hogan, the petitioner contended, among other things, that his 1985 sentences were illegal
and void because they ran concurrently with his 1981 sentence. 168 S.W.3d at 754. Hogan alleged
that he was on parole at the time he committed the 1985 offenses and, thus, consecutive sentencing
was mandated under Tennessee Rule of Criminal Procedure 32(c)(3)(A). Id. at 755. Our supreme
court concluded that, because the judgment forms relating to Hogan’s 1985 convictions were silent
as to whether the sentences were to be served concurrently or consecutively to his prior 1981
sentence, the petitioner had “failed to establish the trial court imposed sentences concurrent with
Hogan’s prior felony sentence in contravention of Rule 32(c)(3)(A).” Id. at 757. The Hogan Court,
in distinguishing the facts of that case from McLaney, reasoned, “[T]he judgments themselves do
not refer to Hogan’s prior conviction or his parole status. The record before this Court does not
indicate that the trial court was even aware of Hogan’s parole status in sentencing him for the 1985
convictions.” Id.

        However, in the present case, while the judgment forms are silent as to whether the life
sentences were to be served concurrently or consecutively to each other, the judgments of conviction
for the two murders were entered on the same day, in the same court, and by the same judge. The
Petitioner entered guilty pleas to both murders on the same day. The time between the
murders—from September 5, 1991, to March 24, 1992—certainly allows for the possibility that the
Petitioner was on bail at the time of commission of the second offense.3



         3
            W e note that the judgment of conviction for the September 5, 1991 murder reflects pretrial jail credit from
September 5, 1991, to April 27, 1993. Regarding the March 24, 1992 murder, the judgment of conviction reflects
pretrial jail credit from what appears to be March 26, 1992, until April 27, 1993, later amended to April 26, 1993. Based
upon the notation of pretrial jail credits on the judgments of conviction, the Petitioner argues that it can be
circumstantially inferred that he was on bail at the time he committed the second offense.

                                                          -6-
        Importantly, this Court in the Petitioner’s post-conviction appeal stated that the Petitioner,
“in accordance with the State’s recommendation, received two concurrent sentences of life
imprisonment.” Brown, 1998 WL 481941, at *1 (emphasis added). Moreover, the post-conviction
court found,

                 The transcript of the guilty plea hearing clearly reflects that, at least on four
         specific occasions, [the Petitioner] was informed that he would be pleading to two
         concurrent life sentences. Those instances occurred during (1) the district attorney
         general’s recommendation of punishment, (2) the trial court’s advisement of the
         penalties provided by law, (3) the statement by trial counsel before sentencing, and
         (4) the imposition of sentence by the trial judge.


Id. at *2. Unlike Hogan, it is clear that the trial court was aware of both convictions and intended
to order concurrent sentencing for the two convictions. We cannot agree with the State that the
petition was properly dismissed summarily because consecutive sentencing was mandated by Rule
32(c)(3) regardless of whether the judgment forms explicitly so order.

       Finally, it appears from the post-conviction opinion of this Court that concurrent life
sentences were a “bargained for” element of the Petitioner’s plea agreement.4 See Smith v. Lewis,
202 S.W.3d 124, 129-30 (Tenn. 2006). In Smith, our supreme court stated as follows:

         McLaney and McConnell stand for the proposition that, when a defendant bargains
         for and receives an illegal sentence, the defendant will have the option of
         resentencing on the original plea or withdrawal of the plea and recommencement of
         the prosecution. See also Henderson v. State ex rel. Lance, 220 Tenn. 520, 419
         S.W.2d 176, 178-79 (1967) (holding that defendant was entitled to withdraw guilty
         plea upon habeas corpus proceedings where he pled guilty in exchange for an illegal
         sentence). These cases recognize that where “the sentence bargained for is otherwise
         illegal, the defendant is entitled to withdraw the plea.” McLaney, 59 S.W.3d at 95.
         To hold otherwise would inflict upon a misled defendant a sentence to which he or
         she did not agree. On the other hand, allowing a misled defendant to withdraw his
         or her plea upon the discovery that his or her bargained-for sentence is illegal will
         encourage trial judges and prosecutors to ensure that only legal sentences are
         bargained for and imposed.

Smith, 202 S.W.3d at 129.




         4
         The State also agreed not to pursue aggravated assault charges against the then eighteen-year-old Petitioner,
which he allegedly committed while a juvenile. See Brown, 1998 W L 481941, at *1.

                                                         -7-
        Here, it appears that the Petitioner bargained for and received an illegal sentence. Thus, we
are unable to distinguish this case from McLaney. Given the similarities between McLaney and the
case currently before this Court, based solely on McLaney we would remand for appointment of
counsel and an evidentiary hearing. However, based upon on our supreme court’s recent decision
in Summers, 2007 WL 160955, we conclude that summary dismissal predicated on the ground that
the Petitioner did not provide factual documentation to support his contention that he was, in fact,
on bail during the commission of the offenses at issue was proper. In Summers, the Tennessee
Supreme Court ruled as follows:

        For the reasons stated herein, we overrule McLaney to the extent that it can be
        interpreted to require the appointment of counsel and a hearing whenever a pro se
        habeas corpus petition alleges that an agreed sentence is illegal based on facts not
        apparent from the face of the judgment. We hold that summary dismissal may be
        proper when, as in this case, the petitioner fails to attach to the habeas corpus petition
        pertinent documents from the record of the underlying proceedings to support his
        factual assertions.


Summers, 2007 WL 160955, at *1. The court explained,


                Although we decline . . . to modify the holding in McLaney with respect to
        the scope of the remedy when habeas corpus relief is granted, we take this
        opportunity to clarify McLaney with respect to the procedural requirements for
        seeking such relief. McLaney has been read to dictate that whenever a pro se
        petitioner fails to attach to his habeas corpus petition pertinent documents from the
        record of the underlying proceedings, he must be afforded the opportunity, with the
        assistance of counsel, to cure any deficiency in his filings.5 This reading of McLaney
        is inconsistent with applicable statutes and prior decisions permitting summary
        dismissal, without the appointment of counsel, unless the alleged illegality is
        apparent from the pro se petition and the documents attached thereto.


Id. at *6. Indeed, this Court, in dealing with McLaney, has noted that, in cases such as these, the trial
court arguably ruled appropriately under the general principles of habeas corpus law but that the
holding in McLaney mandated a different result. See Pritchard, 2005 WL 3487842, at *3. We note
that McLaney himself would not be entitled to relief under the holding in Summers because there
was “no clear proof in the documents [McLaney] submitted with the petition that the sentence was

        5
          See, e.g., Larry Dotson v. State, No. M2005-00436-CCA-R3-HC, 2006 W L 264269, at *3 (Tenn. Crim. App.,
Nashville, Jan. 31, 2006), perm. to appeal filed, (Tenn. Apr. 3, 2006); Pritchard, 2005 W L 3487842, at *4; Gregory
Eidson v. State, No. M 2005-00150-CCA-R3-HC, 2005 W L 1353310, at *4 (Tenn. Crim. App., Nashville, June 8, 2005);
Anthony K. Goods v. Tony Parker, W arden, No. W 2003-02914-CCA-R3-HC, 2004 W L 2309901, at *3 (Tenn. Crim.
App., Jackson, Oct. 13, 2004). (footnote in original).

                                                       -8-
void . . . .” McLaney, 59 S.W.3d at 94. This Court will now attempt to follow Summers. Therefore,
we conclude that, because the judgments are “facially valid” and the Petitioner “failed to support his
factual assertions with pertinent documents from the record of the underlying proceeding,” summary
dismissal was proper. Summers, 2007 WL 160955, at *9.

                                        CONCLUSION
       For the reasons stated herein, we conclude that the trial court did not err by summarily
dismissing the habeas corpus petition. The judgment is affirmed.



                                                       ______________________________
                                                       DAVID H. WELLES, JUDGE




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