         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE

 LARRY DOTSON v. STATE OF TENNESSEE, RICKY BELL, WARDEN

                              Criminal Court for Davidson County
                                          No. 3619



                    No. M2005-00436-CCA-R3-HC - Filed January 31, 2006



JOHN EVERETT WILLIAMS, J., dissenting.

         For the reasons stated herein, I respectfully dissent from the majority’s conclusion. I further
wish to express concerns over a recurring anomaly with which we are faced. An ever-increasing
number of incarcerated inmates are filing habeas corpus petitions in reliance upon the holding in
McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001). These petitioners complain that their sentences are
illegal, as they were required to be sentenced consecutively rather than concurrently. In the instant
case, the petitioner received an effective sentence of twenty years but complains that he should have
received a sentence of at least twenty-three years. At the time of his guilty plea, he was facing a
sentence of forty-three years minimum, if all sentences ran consecutively. I fail to understand how
the petitioner is aggrieved by the agreed sentence.

        McLaney holds that where a defendant pleads guilty in exchange for an illegal sentence, he
or she has the option of either withdrawing the guilty plea or leaving the sentence intact. However,
the defendant in the present case is not aggrieved, as he received the benefit of his plea bargain, and
he has not claimed that his plea was unknowing or involuntary. I submit that the only parties who
did not fully understand the plea agreement were perhaps the State and the victims. Certainly, the
State did not knowingly agree to a sentence that would allow the petitioner to receive a trial on the
most serious charges long after physical evidence deteriorates, witnesses die, and the State’s proof
greatly diminishes. This rule, which allows challenges in perpetuity, greatly undermines the victims’
interest in the finality of judgments and our collective interest in an expeditious, but efficient,
judicial process.

        Furthermore, the windfall created for the defendant allows a second bite at the apple in cases
in which the defendant deems the rule would result to his or her advantage. For example, the
defendant would not challenge the imposition of concurrent sentences if he or she were out on bail
for a more serious crime when a lesser crime was committed because it is of no benefit. The
converse, however, greatly inures to the benefit of the defendant and provides grounds for claims
such as the one before us. I am further persuaded by Judge Hayes’ dissent in Dwight K. Pritchard
v. State, No. M2005-00594-CCA-R3-HC, 2005 Tenn. Crim. App. LEXIS 1289 (Tenn. Crim. App.,
at Nashville, Dec. 16, 2005) (Hayes, J., dissenting), in which he noted that such error is non-
jurisdictional and results in a voidable judgment that is properly addressed in a petition for post-
conviction relief.

         In the instant case, I agree with the findings of the trial court when it stated that “[t]he
petitioner submitted a document indicating that he had made bond on an assault charge but there is
no proof that this charge is the same aggravated assault which the petitioner was subsequently
convicted of.” McLaney states that if it appears on the judgment or the record of the underlying
convictions that the latter offenses were committed while on bail, the sentences are void. 59 S.W.3d
at 93. McLaney further states that “[w]here claims or defenses in collateral proceedings depend upon
the record in the original conviction, it is the party’s obligation (whether pro se or represented) to
introduce the pertinent documents from the original conviction; otherwise, such documents generally
will not be reviewed by this Court.” Id. at 96. The petitioner, having failed to submit the pertinent
documents from the original conviction, failed to carry his burden of proof. Therefore, the petition
for relief should be denied.



                                                       ____________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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