        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs May 3, 2011

                    ERIC AMOS v. TONY PARKER, WARDEN

                 Direct Appeal from the Circuit Court for Lake County
                     No. 09-CR-9397      R. Lee Moore, Jr., Judge


              No. W2010-01377-CCA-R3-HC - Filed September 23, 2011


The petitioner filed a petition for a writ of habeas corpus, alleging that his sentences were
illegal. The habeas corpus court denied the petition. The petitioner now appeals, challenging
the habeas corpus court’s ruling and the constitutionality of the 2009 amendment to
Tennessee Code Annotated section 29-21-101. Upon review, we affirm the judgment of the
habeas corpus court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R., J., joined. D AVID H. W ELLES, S P.J., not participating.

Eric Amos, Tiptonville, Tennessee, pro se (on appeal), and Patrick McGill, Dyersburg,
Tennessee, (at trial), for the appellant, Eric Amos.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Phillip Bivens, District Attorney General; and Lance Webb, Assistant District Attorney
General; for the appellee, State of Tennessee.

                                           OPINION

                                   I. Factual Background

        The record reflects that on July 27, 1998, the petitioner pled guilty as a career offender
to one count of theft of property valued over $10,000 but less than $60,000, aggravated
assault, three counts of robbery, and six counts of aggravated robbery. He received sentences
of fifteen years for each theft, aggravated assault, and robbery conviction and thirty years for
each aggravated robbery conviction. The sentences were ordered to run concurrently for a
total effective sentence of thirty years.
       Subsequently, the petitioner filed a petition for habeas corpus relief, alleging that his
sentences were illegal. Specifically, he maintained that the trial court should have ordered
that the sentences be served consecutively to each other and to a previous charge. The
petitioner contended that he committed the instant offenses while on bond for a theft charge
he committed as a juvenile. The petitioner attached to his habeas corpus petition a detention
order dated December 30, 1992, which included a recommendation that the petitioner be
released upon the posting of an appearance bond. The petitioner further alleged that on
October 30, 1994, while he was still a juvenile and was on bond, he committed theft,
unlawful possession of a weapon, and aggravated robbery. After he was convicted of the
charges, he was placed on probation. In support of this contention, the petitioner attached
to the habeas corpus petition three juvenile court delinquency petitions regarding those
charges and a May 7, 1997, violation of probation warrant. Based upon the petition and the
attachments, the habeas corpus court appointed counsel to assist the petitioner and held a
hearing on the matter.

       At the hearing, the petitioner testified that because he was on bond for theft when he
committed the subsequent theft, aggravated assault, and robbery, consecutive sentencing
should have been imposed. However, he acknowledged that the theft charge was “never
adjudicated.”

       The habeas court conducted the following colloquy with defense counsel to clarify the
petitioner’s contentions:

                     THE COURT: So the first sentence that he says – well,
              what he’s saying is what makes this an illegal or void sentence
              or sentences is that he was on bond on another charge and these
              new charges for which he’s now serving a sentence should have
              been run consecutive to that prior charge?

                      [DEFENSE COUNSEL]: And to each other.

                     THE COURT: All right. But he was never sentenced on
              the prior charge?

                      [DEFENSE COUNSEL]: No, sir.

       At the conclusion of the hearing, the habeas corpus court stated that, given the
information presented at the hearing, the petition should have been dismissed without a
hearing. The court explained that because there was never an adjudication or conviction
regarding the theft charge, no prior sentence existed. Moreover, the court found no statutory

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mandate requiring that the sentences in this case be served consecutively to each other. On
appeal, the petitioner challenges this ruling. He also contends that the 2009 amendment to
Tennessee Code Annotated section 29-21-101 is unconstitutional.

                                        II. Analysis

        Initially, we note that the determination of whether to grant habeas corpus relief is a
question of law. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we will
review the trial court’s findings de novo without a presumption of correctness. Id. Moreover,
it is the petitioner’s burden to demonstrate, 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).

        Article I, section 15 of the Tennessee Constitution guarantees an accused the right to
seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). However,
“[s]uch relief is available only when it appears from the face of the judgment or the record
of the proceedings that a trial court was without jurisdiction to sentence a defendant or that
a defendant’s sentence of imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d
at 322; see also Tenn. Code Ann. § 29-21-101. In other words, habeas corpus relief may be
sought only when the judgment is void, not merely voidable. Taylor, 995 S.W.2d at 83. “A
void judgment ‘is one in which the judgment is facially invalid because the court lacked
jurisdiction or authority to render the judgment or because the defendant’s sentence has
expired.’ We have recognized that a sentence imposed in direct contravention of a statute,
for example, is void and illegal.” Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000)
(quoting Taylor, 995 S.W.2d at 83).

       Tennessee Code Annotated section 40-20-111(b) provides that if a defendant commits
a felony while on bail “and the defendant is convicted of both offenses, the trial judge . . .
shall order that the sentences be served cumulatively.” Tennessee Rule of Criminal
Procedure 32(c)(3) also provides that

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

                     ....



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               (C) to a sentence for a felony committed while the defendant
               was released on bail and the defendant is convicted of both
               offenses[.]

        In the instant case, even if the petitioner were on bail for the theft offense at the time
he committed the instant offenses, the petitioner concedes that he was never convicted of the
theft offense. Therefore, neither Tennessee Code Annotated section 40-20-111(b) nor
Tennessee Rule of Criminal Procedure 32(c)(3) was applicable, and consecutive sentencing
was not required. Further, although it appears that the petitioner was on probation when he
committed the offenses, consecutive sentencing for offenses committed while on probation
is discretionary, not mandatory. See Tenn. Code Ann. § 40-35-115(b)(6). Thus, the habeas
corpus court correctly dismissed the petition for habeas corpus relief.

        The petitioner also challenges the constitutionality of the 2009 amendment to
Tennessee Code Annotated section 29-21-101, which provides, in pertinent part, that a claim
of an illegal sentence based upon an erroneous concurrent or consecutive imposition arising
from a guilty plea is not a basis of relief in a habeas corpus proceeding. See Tenn. Code
Ann. § 29-21-101(b)(1) (Supp. 2009) (when the challenged judgment resulted from “a guilty
plea and negotiated sentence,” a petitioner is not entitled to relief when he “received
concurrent sentencing where there was a statutory requirement for consecutive sentencing”).
However, our supreme court has cautioned that “courts do not decide constitutional questions
unless resolution is absolutely necessary to determining the issues in the case and
adjudicating the rights of the parties.” State v. Taylor, 70 S.W.3d 717, 720-21 (Tenn. 2002).
In the instant case, we do not need to address the constitutionality of the statute in question
in order to resolve the petitioner’s case. Therefore, we decline to address this issue.

                                        III. Conclusion

      We conclude that the habeas corpus court did not err in denying the petitioner’s
habeas corpus petition. Accordingly, we affirm the judgment of the habeas corpus court.


                                                     _________________________________
                                                     NORMA McGEE OGLE, JUDGE




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