         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 13, 2005

                MARVIN RAINER v. DAVID G. MILLS, WARDEN

                Direct Appeal from the Circuit Court for Lauderdale County
                         No. 5914 Joseph H. Walker, III, Judge



                  No. W2004-02676-CCA-R3-HC - Filed January 20, 2006


Petitioner, Marvin Rainer, appeals from the trial court’s dismissal of his petition for writ of habeas
corpus. In March 2001, Petitioner was convicted in Shelby County Criminal Court of one count of
misdemeanor assault, two felony counts of forgery over five hundred dollars, one count of theft over
a thousand dollars, and one count of forgery over a thousand dollars. Petitioner was sentenced to
eleven months and twenty-nine days for the misdemeanor assault conviction, six years for each
felony conviction of forgery over five hundred dollars, ten years for the felony conviction of theft
over a thousand dollars, and ten years for the felony conviction of forgery over a thousand dollars.
According to the judgment forms, the trial court ordered the felony sentences to be served
concurrently for a ten year sentence, with the misdemeanor sentence to be served consecutively, for
an effective sentence of ten years, eleven (11) months, and twenty-nine (29) days, with all sentences
to be served in the Tennessee Department of Correction. On October 15, 2004, Petitioner filed a
petition for writ of habeas corpus in Lauderdale County Circuit Court. Petitioner alleged that his
convictions were void because, inter alia, he received an illegal sentence. The trial court summarily
dismissed the petition without an evidentiary hearing, finding that the issues raised by Petitioner
were not proper subjects for habeas corpus relief. We affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
DAVID G. HAYES, J., joined.

Marvin Rainer, Henning, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
and Elizabeth T. Rice, District Attorney General, for the appellee, the State of Tennessee.
                                              OPINION

I. Background

        In this pro se appeal, Petitioner claims that he is entitled to habeas corpus relief because his
conviction judgments are void due to jurisdictional defects. Specifically, Petitioner contends that
he pled guilty to an illegal sentence which the trial court did not have jurisdiction to impose.
Petitioner argues that his sentence was illegal because Tennessee law prohibits a defendant from
serving a misdemeanor sentence in the Department of Correction where the sentence is not served
concurrently with a felony offense. He argues that he agreed to enter guilty pleas to all charges in
exchange for a concurrent sentence for all felony offenses and a consecutive sentence for his
misdemeanor offense. As stated above, all of the agreed upon sentences were ordered to be served
in the Department of Correction. Petitioner argues that the trial court erroneously ordered his
consecutive misdemeanor sentence to be served in the Department of Correction rather than in a
local jail or workhouse. Petitioner does not assert that he entered the guilty pleas only on the
condition that the entirety of the sentence, including the sentence for the misdemeanor conviction,
be served in the Department of Correction. Nor does he contest the consecutive sentence itself.
Rather, he argues that the sentence received was in contravention of state sentencing guidelines and
that he would not have voluntarily pled guilty to an illegal sentence.

        Petitioner also argues that his pleas were not entered pursuant to his understanding of the plea
agreement. He alleges that in order to avoid being adjudged a career criminal, he pled guilty to all
charges except forgery over five hundred dollars in indictment number 99-04651, with that charge
to be dismissed. He claims that although both trial counsel and the prosecutor assured him that this
charge would be dismissed in exchange for the remaining guilty pleas, the judge sentenced him to
six years for the offense, to be served concurrently with his other felony offenses. Petitioner argues
that because his pleas were not entered according to his understanding of the plea agreement, the
pleas were involuntarily entered and the sentences are illegal. He asserts that the error may have
occurred because the trial court was sentencing several defendants simultaneously. He further asserts
that his trial counsel was ineffective in failing to prevent the judgments from being entered.

        Additionally, Petitioner argues that the conviction judgment for forgery over five hundred
dollars in indictment number 99-04651 is prima facie void because the judgment form does not
indicate whether Petitioner was convicted by jury trial or guilty plea or whether the charge was
dismissed. Petitioner also argues that the misdemeanor assault judgment is void because it lacks
pertinent information regarding his pre-trial jail credits. Petitioner requests that this case be
remanded to the habeas court for grant of habeas corpus relief, and then transferred to the original
convicting court. Petitioner argues that the convicting court must vacate the judgments, conduct a
bond hearing, and appoint counsel. He further argues that he should be allowed to withdraw his
guilty pleas.




                                                  -2-
II. Standard of Review

        The purpose of a writ of habeas corpus is to inquire into the legitimacy of the petitioner’s
imprisonment and restraint. See T.C.A. § 29-21-101. Whether a petitioner should be granted habeas
corpus relief is a question of law. Benson v. State, 153 S.W.3d 27, 31 (Tenn. 2004). As such, our
review of the trial court's order denying the petition is de novo with no presumption of correctness
given to the trial court's judgment. Id.

        The grounds upon which a writ of habeas corpus is available are very narrow. McLaney v.
Bell, 59 S.W.3d 90, 92 (Tenn. 2001). The writ of habeas corpus reaches only void judgments, not
voidable judgments. Archer v. State, 851 S.W.2d 157, 163-164 (Tenn. 1993). “A judgment is void
‘only when it appears on the face of the judgment or the record of the proceedings upon which the
judgment is rendered that a convicting court was without jurisdiction or authority to sentence a
defendant, or that a defendant’s sentence of imprisonment or other restraint has expired.’” Hogan
v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005) (quoting State v. Richie, 20 S.W.3d 624, 630 (Tenn.
2000)). “‘Jurisdiction’ in the sense here used, is not limited to jurisdiction of the person or of the
subject matter but also includes lawful authority of the court to render the particular order or
judgment whereby the petitioner has been imprisoned.” Anglin v. Mitchell, 575 S.W.2d 284, 287
(Tenn. 1979).

         A void judgment is one whose imposition directly contravenes a statute. McLaney, 59
S.W.3d at 92-93. Such a void judgment is “subject to being set aside at any time, even if it has
become final.” Id. at 94 (quoting State v. Mahler, 735 S.W.2d 226, 227-28 (Tenn. 1987)). A
voidable conviction or sentence is valid on its face and requires evidence beyond the face of the
record or judgment to demonstrate its invalidity. Id. at 93. The petitioner in a habeas corpus
proceeding bears the burden of showing by a preponderance of the evidence that the judgment is void
or that the prison term has expired, and the petitioner is entitled to such relief. See Wyatt v. State,
24 S.W.3d 319, 322 (Tenn. 2000). If the petitioner fails to make this showing, the habeas court may
summarily dismiss the petition without appointment of counsel or a hearing. T.C.A. § 29-21-109
(2000); see e.g., Archer, 851 S.W.2d at 164.

III. Analysis

A. Conviction for forgery over five hundred dollars

         Petitioner asserts that the conviction judgment for forgery over five hundred dollars is prima
facie void because it lacks the appropriate information regarding the manner of conviction.
Although Petitioner offers no authority for his assertion, Tennessee Rule of Criminal Procedure 32(e)
states in pertinent part, “[a] judgment of conviction shall set forth the plea, the verdict or findings,
and the adjudication and sentence.” See Tenn. R.Crim. P. 32(e). “The information which is required
to be included in the judgment form is standard[,] and it is mandatory that each judgment form
contain this information.” State v. Harry Mark Hurley, No. 233, 1988 WL 81017, at *3 (Tenn.
Crim. App., at Knoxville, Aug. 3, 1988), perm. to appeal denied (Tenn. Dec. 12, 1988) (affirming


                                                  -3-
the judgment of the trial court on the merits but not as to its form after noting the trial court’s failure
to indicate a finding of guilty on the judgment form). However, “[t]echnical violations related to the
judgment forms and committal documents . . . [do] not render the petitioner’s confinement illegal
as long as a valid conviction and resultant legal sentence were imposed.” Marvin Anthony Matthews
v. Noles, No. 02C01-9206-CC-00140, 1993 WL 46546, at *2 (Tenn. Crim. App., at Jackson, Feb.
24, 1993) perm. to appeal denied (Tenn. June 1, 1993) (citing Tenn. R. Crim. P. 36).

        It is our determination that the judgment forms, taken as a whole, sufficiently establish that
the judgment for forgery over five hundred dollars is a valid conviction, and the form reflects a mere
technical omission. Viewing all of the judgment forms together, each form, except the one in
question, indicates that Petitioner pled guilty to the charges against him. Each of the forms
indicating a guilty plea to the other charges also references the judgment at issue by declaring how
the sentences are to be served in relation to one another. The judgment form also indicates that
Petitioner is a “persistent” offender, and it sets forth the sentence Petitioner is to serve for his
conviction on this charge, as well as the applicable pretrial jail credits. Additionally, the sentence
Petitioner received for the conviction is a valid, legal sentence in accordance with Tennessee’s
sentencing statutes. T.C.A. § 40-35-112 to -504 (2003).

        Based upon the record before us, we conclude that the judgment form for forgery over five
hundred dollars reflects a valid conviction and resultant legal sentence. We find that the trial court’s
failure to check the blank on the judgment form indicating that Petitioner pled guilty is merely a
technical omission rendering the judgment voidable, not void. As previously stated, the issue of a
voidable judgment is not properly raised in a petition for habeas corpus. See Archer, 851 S.W.2d
at 163. Petitioner is not entitled to habeas corpus relief on this issue.

         Petitioner also argues that pursuant to the plea agreement, the charge of forgery over five
hundred dollars should have been dismissed, and that he unknowingly and involuntarily pled guilty
to this charge. However, there is nothing in the record to support this argument because Petitioner
failed to submit the negotiated plea documents or the transcript of the guilty plea. It is the duty of
the appellant to prepare a record which conveys a fair, accurate and complete account of what
transpired in the trial court with respect to the issues which form the basis of the appeal. Tenn. R.
App P. 24(b); see also Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997). The
failure to do so results in a waiver of the issues. Id. Moreover, we note that claims of an involuntary
or unknowing guilty plea render a conviction voidable, not void, and are properly addressed in the
post-conviction forum, not in a petition for habeas corpus. See Cox v. State, 53 S.W.3d 287, 291-293
(Tenn. Crim. App. 2001); See also Smith v. Lindamood, No. M2003-01872-CCA-R3-HC, 2004 WL
1533827 (Tenn. Crim. App., at Nashville, July 7, 2004), perm. to appeal denied (Tenn. Nov. 15,
2004) (holding that inmate’s claim that her plea bargain agreement was not honored in the judgment
entered or sentence imposed presented at most a claim of merely a voidable, not void, judgment, and
thus was not proper for habeas corpus relief). We therefore conclude that the trial court properly
found that Petitioner was not entitled to habeas corpus relief on this issue.




                                                   -4-
B. Illegal Sentence

         Petitioner next argues that his misdemeanor conviction is void and that he should be allowed
to withdraw his guilty plea because the sentence imposed is illegal pursuant to Tennessee’s
Sentencing Act. According to the judgment form, Petitioner was sentenced to serve eleven (11)
months and (29) days in the Department of Correction for a conviction of misdemeanor assault.
Pursuant to Tennessee Code Annotated section 39-13-101(b)(1) (2003), “[a]ssault is a class A
misdemeanor.” Generally, class A misdemeanor offenses are punishable by imprisonment for a
period of time “not greater than eleven (11) months twenty-nine (29) days.” T.C.A. § 40-35-
111(e)(1) (1989). The actual term of imprisonment imposed by the trial court is in accordance with
this statutory guideline and therefore is not illegal. Petitioner argues, however, that the sentence is
illegal because the place of confinement reflected in the judgment form contravenes Tennessee’s
Sentencing Act. The Act provides that where incarceration is directed for a period of less than one
year, that period of confinement is to be served in a local jail or workhouse. See T.C.A. § 40-35-314,
Sentencing Commission Comments (1991). Because Petitioner’s misdemeanor sentence was not
ordered to be served concurrently with another felony sentence, it cannot be served in the
Department of Correction as reflected in the judgment form.

        Petitioner does not dispute the term of imprisonment, nor does he claim that he entered the
plea bargain only on the condition that the misdemeanor conviction be served in the Department of
Correction. Petitioner argues only that the place of confinement renders the sentence illegal, and that
he would not have knowingly pled guilty to an illegal sentence. In support of his argument,
Petitioner relies on the Tennessee Supreme Court decision, McLaney v. Bell, 59 S.W.3d 90 (2001).
In that case, the petitioner’s habeas corpus petition asserted that the petitioner’s guilty plea was
entered in exchange for an illegal sentence. See id. at 93-94. The petition alleged that the defendant
had been charged with rape and was released on bail when he was charged with committing a
subsequent rape and third degree burglary. Id. The petitioner asserted that the concurrent sentence
imposed for his convictions was in direct contravention with state law. The trial court summarily
dismissed the petition without appointment of counsel. Id. The supreme court remanded the case
to the habeas court for appointment of counsel and further factual findings, holding that if the
petitioner’s allegations about being on bail when he committed the two additional offenses were true,
then the judgments were void because the illegality of the sentence was evident on the face of the
judgments. Id.

        We find the present case distinguishable from McLaney because there is no dispute regarding
the actual length of the sentence imposed for the conviction. While it is true that the misdemeanor
judgment form indicates an improper place of confinement, it is our determination that the form
simply reflects clerical errors. Therefore, the proper remedy is not to void the judgment but to
amend the judgment to comply with the sentencing guidelines. This Court has previously held that
an illegal sentence may serve as a basis for habeas relief only if the illegality of the sentence is
“egregious to the point of voidness.” Coleman v. Morgan, 159 S.W.3d 887, 890 (Tenn. Crim. App.
2004). Accordingly, “mere clerical errors in the terms of a sentence may not give rise to a void
judgment.” See id. Pursuant to Rule 36 of the Tennessee Rules of Criminal Procedure, “[c]lerical


                                                 -5-
mistakes in judgments, orders, or other parts of the record and errors in the record arising from
oversight or omission may be corrected by the court at any time.” Tenn. R. Crim. P. 36. In
determining whether there has been a clerical error, this Court has held:

        [T]he record in the case must show that the judgment entered omitted a portion of the
        judgment of the court or that the judgment was erroneously entered. The most
        reliable indicator that clerical error was made is the transcript of the hearing or other
        papers filed in connection with the proceedings which show the judgment was not
        correctly entered. In the absence of these supporting facts, a judgment may not be
        amended under the clerical error rule after it has become final.

State v. Jack Lee Thomas, Jr., C.C.A. No. 03C01-9504-CR-00109, 1995 WL 676396, *1 (Tenn.
Crim. App,. at Knoxville, Nov. 15, 1995) (no Tenn. R. App. P. 11 application filed); see also Donald
W. Rhea, Jr. v. State, No. M2003-01034-CCA-R3-CO, 2004 WL 343969 (Tenn. Crim. App., at
Nashville, Feb. 24, 2004) (no Tenn. R. App. P. 11 application filed).

        After reviewing the record and the available documents, we conclude that the misdemeanor
judgment form contains an incorrect marking resulting from clerical error. Although the record is
sparse, the misdemeanor judgment form contains all necessary information and properly references
the other convicting documents. The form is only deficient in that the box indicating the place of
confinement is checked for the Department of Correction rather than a local jail or workhouse. We
find that this clerical error is not sufficient to render the judgment void. Petitioner is not entitled to
relief on this issue.

C. Pre-trial Jail Credits

        Finally, Petitioner argues that his conviction for misdemeanor assault is prima facie void
because it lacks any information regarding his pre-trial jail credits. “When an accused is taken into
custody by the state, Tennessee is required to credit the sentence with the time served in the jail
pending arraignment and trial as well as the time subsequent to any conviction arising out of the
original offense for which he was tried.” State v. Henry, 946 S.W.2d 833, 834 (Tenn. Crim. App.
1997). In the present case, the judgment forms reflect that pre-trial jail credits have been applied to
all of Petitioner’s felony sentences, all of which were ordered to be served concurrently. The
sentence for misdemeanor assault was ordered to be served consecutively to these felony convictions.
An inmate may not “double-dip” for credits from a period of continuous confinement. Christopher
Johnson v. Tenn. Dept. of Correction, No. 95-2065-II, 1996 WL 442740 (Tenn. Ct. App., Aug. 7,
1996); see also Christopher A. Johnson v. State, No. E2002-01208-CCA-R3-PC, 2003 WL
21145504 (Tenn. Crim. App. at Knoxville, May 16, 2003), perm. to appeal denied, (Tenn. Oct. 6,
2003). A defendant incarcerated prior to trial who receives consecutive sentences is only allowed
pre-trial jail credits to be applied toward the first sentence. See Christopher A. Johnson v. State, No.
E2002-01208-CCA-R3-PC, 2003 WL 21145504, at *2. Petitioner’s pre-trial jail credits were
correctly applied to his first sentence of ten years for the felony convictions, and properly omitted



                                                   -6-
from his consecutive sentence for misdemeanor assault. Accordingly, Petitioner’s judgment is not
void on its face, and he is not entitled to relief on this issue.

                                        CONCLUSION

       For the foregoing reasons, we affirm the trial court’s denial of habeas corpus relief.

                                                      ___________________________________
                                                      THOMAS T. WOODALL, JUDGE




                                                -7-
