         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

           CHRISTOPHER A. JOHNSON v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Hamilton County
                           No. 249364 Douglas A. Meyer, Judge



                      No. E2004-01464-CCA-R3-HC - Filed July 21, 2005


The petitioner, Christopher A. Johnson, appeals from the trial court’s order denying his petition for
writ of habeas corpus. The State has filed a motion requesting that this court affirm the trial court’s
denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petitioner
has failed to establish a cognizable claim for habeas corpus relief. Accordingly, the State’s motion
is granted and the judgment of the trial court is affirmed.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JAMES CURWOOD WITT , Jr., J., joined.

Christopher A. Johnson, Chattanooga, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter, and Brent C. Cherry, Assistant Attorney General,
for the appellee, State of Tennessee.

                                  MEMORANDUM OPINION

       On January 13, 2003, the appellant pled guilty in the Hamilton County Criminal Court to
forgery, possession of drug paraphernalia, and theft under five hundred dollars. The trial court
sentenced him to concurrent sentences of two years for the forgery conviction and eleven months and
twenty-nine days for each of the remaining two convictions but suspended service of the sentences
and placed him on supervised probation.

        On May 4, 2004, the appellant filed a petition for writ of habeas corpus, arguing that the
judgments of conviction were void because the trial court ordered the sentences to be served
concurrently to a sentence for which the appellant was on parole at the time he committed the
forgery, possession, and theft offenses. The appellant also argued that his sentences had expired and
that the trial court could not sentence him to probation for his misdemeanor sentences.
         The purpose of a habeas corpus petition is to contest void and not merely voidable
judgments. Archer v. State, 851 S.W.2d 157, 163 (Tenn. 1993) (citing State ex rel. Newsom v.
Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189 (1968)). A writ of habeas corpus may be granted
only when the petitioner has established lack of jurisdiction for the order of confinement or that he
is otherwise entitled to immediate release because of the expiration of his sentence. See Ussery v.
Avery, 222 Tenn. 50, 432 S.W.2d 656 (1968); State ex rel. v. Wade v. Norvell, 1 Tenn. Crim. App.
447, 443 S.W.2d 839 (1969). The burden is on the petitioner to establish that the judgment is void
or that the sentence has expired. State ex rel. Kuntz v. Bomar, 214 Tenn. 500, 504, 381 S.W.2d 290,
291-92 (1964). A petition seeking issuance of a writ of habeas corpus may be summarily dismissed
by a trial court if it fails to indicate that the petitioner’s conviction is void. Tenn. Code Ann. § 29-
21-109.

        Tennessee Rule of Criminal Procedure 32(c)(3)(A) “requires that the sentence imposed for
[a felony] offense committed while on parole run consecutively to the sentence for the felony for
which the offender was on parole.” State v. Rickey Hogan, ___ S.W.3d ___, No.
W2004-00182-SC-R11-HC, 2005 Tenn. LEXIS 599, *5-6 (Jackson, June 27, 2005); see also Tenn.
Code Ann. § 40-28-123(a). This is true “whether the judgment explicitly so orders or not.” Tenn.
R. Crim. P. Rule 32(c)(3). Initially, we note that only one of the petitioner’s offenses in this case
was a felony and subject to consecutive sentencing pursuant to Rule 32(c)(3)(A). In any event, the
judgments of conviction in this case are silent as to whether they were to run concurrently or
consecutively to a prior sentence. Moreover, nothing in the record indicates that the petitioner
committed a prior felony offense. Thus, the judgments of conviction are not void on their face.

         The petitioner also claims that his sentences have expired due to his having received pretrial
jail credits and behavior credits. The appellant received an effective two-year sentence on January
13, 2003. From the face of the judgments, it appears that the petitioner’s effective sentence expired
in January 2005. Therefore, this issue is now moot.

         Finally, regarding his contention that the trial court could not order probation for his
misdemeanor sentences, this issue is without merit. Tenn. Code Ann. § 40-35-302(e)(2) provides
that a trial court may place a defendant on probation for misdemeanor offenses immediately after
sentencing.

       Upon due consideration of the pleadings, the record, and the applicable law, the court
concludes that the petitioner has not presented a cognizable claim for habeas corpus relief.
Accordingly, 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.




                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE


                                                  -2-
