             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                 Assigned on Briefs November 2, 2010

                   RICKY LYNN HILL V. TONY PARKER, WARDEN

                             Appeal from the Circuit Court for Lake County
                              No. 10-CR-9468 R. Lee Moore, Jr., Judge



                      No. W2010-01423-CCA-R3-HC - Filed January 24, 2011


Petitioner, Ricky Lynn Hill, appeals the Lake County Circuit Court’s dismissal of his petition
for writ of habeas corpus. Petitioner pled guilty to vehicular assault, driving under the
influence (“DUI”) fifth offense, attempted tampering with evidence, and leaving the scene
of an accident.1 Pursuant to the plea agreement, Petitioner was sentenced to an effective
sentence of seven years, eleven months, and twenty-nine days and released to intensive
probation. Petitioner filed a petition for writ of habeas corpus in which he argued that his
guilty pleas were involuntary, that his convictions violated double jeopardy, and that his
sentence was excessive. The habeas corpus court denied relief for failure to comply with the
habeas corpus statute and for failure to state a cognizable claim for relief. Following review
of the record, we affirm the denial of habeas corpus relief.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J. and
J OHN E VERETT W ILLIAMS, J., J OINED.

Ricky Lynn Hill, Pro Se, Tiptonville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter, Cameron L. Hyder, Assistant Attorney
General; and Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.




         1
           It appears from the record that Petitioner’s DUI, fifth offense conviction was later vacated and dismissed based
on a violation of double jeopardy; thus, only the convictions for vehicular assault, attempted tampering with evidence,
and leaving the scene of an accident with injury remained. For those convictions, the petitioner received sentences
totaling five years, eleven months, and twenty-nine days.
                                               OPINION

                                         Factual Background

        According to the record on appeal, amended judgments reflect that Petitioner pled
guilty in the Circuit Court of Madison County to leaving the scene of an accident and
attempted tampering with the evidence. Petitioner pled nolo contendere to vehicular assault.
Petitioner was also convicted of DUI, fifth offense. The conviction for DUI, fifth offense,
was vacated and dismissed by the trial court as in violation of State v. Rhodes, 917 S.W.2d
708 (Tenn. Crim. App. 1995).2 As a result of the convictions, the trial court sentenced
Petitioner to two years for vehicular assault, three years for attempted tampering with the
evidence, and eleven months and twenty-nine days for leaving the scene of an accident. The
trial court ordered the sentences to be served consecutively. The trial court chose to place
Petitioner on intensive probation and imposed additional restrictions on Petitioner, including
the completion of inpatient treatment for alcohol and drugs.

        Subsequently, Petitioner filed a petition for post-conviction relief. See Ricky Lynn
Hill v. State, No. W2009-01746-CCA-R3-PC, 2010 WL 3025517 (Tenn. Crim. App., at
Jackson, Aug. 4, 2010), perm. app. denied, (Tenn. Oct. 20, 2010). Petitioner alleged that he
received ineffective assistance of counsel during the guilty plea negotiations and that his
pleas were unknowing and involuntary. The post-conviction court denied relief. On appeal,
this Court affirmed the denial of post-conviction relief. Id. at *7.

        Petitioner then filed a petition for the writ of habeas corpus in the Lake County Circuit
Court. In the petition, Petitioner argued that his consecutive sentences were unwarranted
and improper, that his guilty pleas were unknowing and involuntary, and that his sentence
and conviction violated double jeopardy. The habeas corpus court denied relief on the basis
that Petitioner failed to attach a copy of the transcript of his guilty pleas. In other words, that
Petitioner failed to comply with all the mandatory statutory requirements for habeas corpus
relief. Additionally, the habeas corpus court found that Petitioner did not present a claim that
was cognizable in a habeas corpus petition and has not shown that his sentences have
expired, are void, or illegal. Petitioner filed a timely notice of appeal.

                                                Analysis

       On appeal, Petitioner argues that the habeas corpus court improperly denied relief.
Specifically, Petitioner contends that the trial court erred by sentencing him to consecutive

        2
         In Rhodes this Court held that dual convictions for vehicular assault and the underlying DUI charge
violate double jeopardy principles.

                                                    -2-
sentences. Further, Petitioner argues that his pleas were not knowing and voluntary because
he pled guilty and was sentenced in violation of double jeopardy. Petitioner contends that
it is inconsequential that his conviction for DUI was eventually dismissed and vacated.
Petitioner argues that the plea agreement was a “package deal” when he entered the pleas,
so the entire plea agreement should be invalidated. Lastly, Petitioner argues that his truck
was illegally seized so the evidence that formed the basis for his convictions was illegally
obtained, resulting in void and illegal convictions. The State, on the other hand, advances
that the habeas corpus court properly denied relief.

        The determination of whether to grant habeas corpus relief is a question of law. See
Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004). As such, we will review the habeas
corpus court’s findings de novo without a presumption of correctness. Id. Moreover, it is
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). A writ of
habeas corpus is available only when it appears on the face of the judgment or the record that
the convicting 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). In other
words, habeas corpus relief may be sought only when the judgment is void, not merely
voidable. See 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) (citations omitted) (quoting Taylor, 955 S.W.2d
at 83).

        However, if after a review of the habeas petitioner’s filings the habeas corpus court
determines that the petitioner would not be entitled to relief, then the petition may be
summarily dismissed. T.C.A. § 29-21-109; State ex rel. Byrd v. Bomar, 381 S.W.2d 280, 283
(Tenn. 1964). Further, a habeas corpus court may summarily dismiss a petition for writ of
habeas corpus without the appointment of a lawyer and without an evidentiary hearing if
there is nothing on the face of the judgment to indicate that the convictions addressed therein
are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

      The procedural requirements for habeas corpus relief are mandatory and must be
scrupulously followed. Summers v. State, 212 S.W.3d 251, 259 (Tenn. 2007); Hickman, 153
S.W.3d at 19-20; Archer, 851 S.W.2d at 165. For the benefit of individuals such as

                                              -3-
Petitioner, our legislature has explicitly laid out the formal requirements for a petition for a
writ of habeas corpus at T.C.A. § 29-21-107:


       (a) Application for the writ shall be made by petition, signed either by the party
       for whose benefit it is intended, or some person on the petitioner’s behalf, and
       verified by affidavit.

       (b) The petition shall state:

       (1) That the person in whose behalf the writ is sought, is illegally restrained of
       liberty, and the person by whom and place where restrained, mentioning the
       name of such person, if known, and, if unknown, describing the person with
       as much particularity as practicable;

       (2) The cause or pretense of such restraint according to the best information
       of the applicant, and if it be by virtue of any legal process, a copy thereof shall
       be annexed, or a satisfactory reason given for its absence;

       (3) That the legality of the restraint has not already been adjudged upon a prior
       proceeding of the same character, to the best of the applicant’s knowledge and
       belief; and

       (4) That it is the first application for the writ, or, if a previous application has
       been made, a copy of the petition and proceedings thereon shall be produced,
       or satisfactory reasons be given for the failure so to do.

A habeas corpus court “properly may choose to summarily dismiss a petition for failing to
comply with the statutory procedural requirements.” Summers, 212 S.W.3d at 260. Further,
in Summers, our supreme court explained:


       In the case of an illegal sentence claim based on facts not apparent from the
       face of the judgment, an adequate record for summary review must include
       pertinent documents to support those factual assertions. When such documents
       from the record of the underlying proceedings are not attached to the habeas
       corpus petition, a trial court may properly choose to dismiss the petition
       without the appointment of counsel and without a hearing.

212 S.W.3d at 261.

                                               -4-
        In the case herein, the petition alleges that this is Petitioner’s first petition for habeas
corpus relief. To the contrary, the record reflects that Petitioner has filed a petition for writ
of habeas corpus in Chester County that is now before this Court on appeal as case number
W2010-01374-CCA-R3-HC. In fact, Petitioner filed a “Motion to Consolidate Appeals” in
this Court which was denied on the basis that consolidation was “contrary to judicial
economy.” Further, Petitioner has failed to attach a copy of the judgment for DUI where
Petitioner argues that consecutive sentencing was based on the DUI conviction that was later
dismissed. Additionally, Petitioner did not attach copies of the plea agreement or a transcript
of the guilt plea hearing. Thus, Petitioner has failed to comply with the statutory procedural
requirements of Tennessee Code Annotated section 29-21-107(b)(4). This alone warrants
dismissal of the habeas petition.

       Additionally, Petitioner has failed to state a claim that is cognizable in a petition for
habeas corpus relief. The involuntary entry of a guilty plea would render the judgment
voidable rather than void. Archer, 851 S.W.2d at 163. Likewise, “‘an allegation of double
jeopardy does not render a conviction void, but merely voidable.’” William C. Brothers v.
State, No. W2008-01680-CCA-R3-HC, 2009 WL 3295119, at *3 (Tenn. Crim. App., at
Jackson, Oct. 14, 2009) (quoting Timothy Hickman v. Howard Carlton, Warden, No. E2006-
00860-CCA-R3-HC, 2006 WL 2567511, at *2 (Tenn. Crim. App., at Knoxville, Sept. 7,
2006)); see also Joseph L. Coleman v. Tony Parker, Warden, No. W2004-01527-CCA-R3-
HC, 2005 WL 564153, at *2 (Tenn. Crim. App., at Jackson, Mar. 10, 2005), perm. app.
denied, (Tenn. Aug. 22, 2005). Finally, a challenge to the imposition of consecutive
sentencing is not a proper basis for habeas corpus relief. Marcie A. Murray v. Rueben
Hodge, Warden, No. M2007-01394-CCA-R3-HC, 2008 WL 4367590, at *2 (Tenn. Crim.
App., at Nashville, Sept. 24, 2008), perm. app. denied, (Tenn. Dec. 8, 2008). Consequently,
the habeas corpus court properly denied the petition for relief.

                                           Conclusion

       For the foregoing reasons, the judgment of the habeas corpus court is affirmed.


                                              ___________________________________
                                              JERRY L. SMITH, JUDGE




                                                -5-
