           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                       October 2006 Session

            ANTHONY KESHUN GOODS v. TONY PARKER, Warden

                          Appeal from the Circuit Court for Lake County
                           No. 03-CR-8494-R1      R. Lee Moore, Judge


                       No. W2006-00849-CCA-R3-CO - Filed July 24, 2007


Hayes, David G., Judge, dissenting.

        The majority, relying upon the authority of McLaney v. Bell, affirms the grant of habeas corpus
relief. However, relying upon the authority of the Tennessee Supreme Court cases discussed below,
I must respectfully dissent. My reasons are two-fold.

                                       1. Jurisdictional Error

        Our supreme court’s decisions have consistently held that the writ of habeas corpus reaches only
jurisdictional error and may not be used as a substitute for an appeal. After review of the issue
presented in the instant case and upon application of the principles set forth in the following supreme
court decisions, I am compelled to conclude that the Petitioner’s collateral attack of his convictions and
resulting sentences is non-jurisdictional in nature. Thus, habeas corpus relief is not proper.

       The following principles of habeas corpus jurisprudence remain inviolate:

       !       “[T]he writ [of habeas corpus] does not lie to correct mere errors and
               irregularities committed by a court that is acting within its jurisdiction . . . .”
               State ex rel. Anglin v. Henderson, 575 S.W.2d 284, 287 (Tenn. 1979) (citations
               omitted), overruled on other grounds by Archer v. State, 851 S.W.2d 157 (Tenn.
               1993). “The writ reaches jurisdictional error only . . . .” Id. (emphasis added).

       !       “It is well settled in this State that a petition for writ of habeas corpus may not
               be used to review or correct errors of law or fact committed by a court in the
               exercise of its jurisdiction; that the writ of habeas corpus cannot be used to serve
               the purpose of an appeal or writ of error.” State ex rel. Holbrook v. Bomar, 364
               S.W.2d 887, 888 (Tenn. 1963) (emphasis added).

       !       “Since only a void judgment may be attacked by the remedy of habeas corpus,
               the question presented is always one of jurisdiction . . . .” Anglin, 575 S.W.2d
               at 287 (emphasis added).
        !        “Habeas corpus relief is available . . . only when ‘it appears upon 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 . . . .” Archer, 851 S.W.2d at 164 (emphasis added).

        It is conceded that, “‘[j]urisdiction’ 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, 575 S.W.2d at 287.
Nonetheless, our supreme court has recognized that not all sentencing irregularities and departures from
express statutory sentencing provisions are jurisdictional and, as such, do not void the sentence. See
McConnel1 v. State, 12 S.W.3d 795, 798 (Tenn. 2000). Non-jurisdictional irregularities or errors of
the sentencing court render, at best, a judgment that is merely voidable, as opposed to void. I conclude
that any sentencing error implicated in the instant case is an error which occurred in the exercise of the
trial court’s statutory sentencing authority, as opposed to an error where the sentencing court was
without jurisdiction or authority to act. See Holbrook, 364 S.W.2d at 887.

        In further explanation of the phrase “without jurisdiction or authority to sentence,” our supreme
court in Archer cited to the holdings of Henderson v. State ex rel. Lance, 419 S.W.2d 176 (1968) and
State ex rel. Barnes v. Henderson, 423 S.W.2d 497 (1968). Archer, 851 S.W.2d at 163. In Lance, the
trial court accepted the defendant’s guilty plea to the charge of armed robbery, which was committed
while the defendant was on parole from a prior conviction. Id. The plea agreement provided that the
defendant would receive a five-year sentence for armed robbery and that this sentence would run
concurrently with his parole violation. Id. On appeal, the supreme court held that the trial court was
“powerless to order such a concurrent sentence” because the court’s order violated the express
provisions of Tennessee Code Annotated section 40-3620. Lance, 419 S.W.2d at 177.

        Tennessee Code Annotated section 40-3620 (1956) (repealed) was not a sentencing provision
within the authority of the trial court.1 Rather, this section, codified in Title 40, Chapter 36, captioned
“Paroles and Pardons,” created the division of paroles and pardons and set forth the duties and powers
of the division through a Board of Parole and Pardons. See T.C.A. §§ 40-3601 to -3626 (1956)
(repealed). Tennessee Code Annotated section 40-3620, felony by parolee, directed the parole board
as follows:

        If any prisoner be convicted in this state of a felony committed while on parole from a
        state prison, he shall, in addition to the sentence which may be imposed for such felony,
        and before beginning to serve such sentence, be compelled to serve in a state prison the
        portion remaining of the maximum term of the sentence on which he was released on
        parole from the time of such release on parole to the expiration of such maximum.

          1
            Lance was decided prior to the adoption of the Rules of Criminal Procedure. It is acknowledged that Rule
 32(c)(3)(A), which became effective July 1, 1982, now vests the sentencing court with jurisdiction to impose
 concurrent or consecutive sentences, as provided for by the Rule. In contrast to Lance, under current provisions, any
 error in the application of this Rule would constitute a voidable claim, as opposed to a void claim because
 jurisdiction is now statutorily vested in the court.

                                                           2
T.C.A. § 40-3620.

        The argument advanced by the State in Lance, in defense of the plea agreement, was that the
trial court’s order that the sentence for the parole violation be served concurrently was merely a
“recommendation of the trial court” to the “Board of Pardons and Paroles.” Lance, 419 S.W.2d at 177.
However, as noted by our supreme court, “[t]he statute is mandatory.” Id. Nonetheless, our supreme
court concluded that relief was warranted because the plea of guilty was made by the defendant “under
a total misrepresentation of his rights,” and, thus, granted the writ to allow the defendant to withdraw
his guilty plea.

        Implicit within Lance is the holding that the trial court, acting within the judicial branch of
government, is without authority, under the separation of powers doctrine, to usurp the authority of the
Parole Board, who acts within the executive branch of government. Our supreme court in Archer
characterized the trial court’s ruling in Lance as acting “without jurisdiction or authority.”2 Archer, 851
S.W.2d at 163. As evident from the holding in Archer, the term “or authority” refers to jurisdictional
authority. In accord is the holding of Taylor v. State, which reiterated the general principle expressed
in Archer “that where a court has jurisdiction over the person and the subject matter, and the judgment
rendered is not in excess of the jurisdiction or power of the court, no error or irregularity can make the
judgment void . . . .” 995 S.W.2d 78, 85 (Tenn. 1999) (citing 46 AM . JUR. 2D , Judgments § 14); see
also State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000).

        Clearly, while “jurisdiction or authority” was lacking in Lance, this is not the situation in the
instant case. Here, the Shelby County Criminal Court, a court of general jurisdiction, had jurisdiction
over all aspects ruled upon, including bail, the Petitioner’s release on recognizance, and the concurrent
or consecutive nature of the sentences to be imposed. As such, any sentencing “error or irregularity”
would make the judgment of conviction merely voidable, as opposed to void.

         In Barnes, the second case mentioned in Archer, the Petitioner, by means of a habeas corpus
petition, challenged his conviction upon grounds that the trial court violated the mandatory sentencing
provisions of Tennessee Code Annotated section 40-2310, which required that a jury fix punishment
“upon a plea of guilty to a felony offense.” Barnes, 423 S.W.2d at 500. No compliance was made with
this sentencing provision. Our supreme court concluded that, although the sentencing provision was
mandatory, the trial court had jurisdiction over the sentencing issue and that the Petitioner’s plea of
guilty waived any irregularity in the sentencing process. Accordingly, habeas corpus relief was denied.
I find the facts of Barnes analogous to those of the case before us.

       While it is beyond dispute that an illegally imposed sentence may be corrected at any time by
means of the writ of habeas corpus, the holdings of Archer and Taylor require that the illegality be
defined within the context of whether the court had “jurisdiction or authority” to act, as opposed to

          2
           Of note, the Archer court observed that the holding in Lance cannot be read to stand for the broad
 proposition for which it has been cited. Archer, 851 S.W .2d at 163.



                                                           3
merely an error or irregularity in the judgment. For example, the minimum and maximum length of
a sentence, as fixed by the legislature, is jurisdictional, and the trial courts are bound to respect those
limits. McConnell, 12 S.W.3d at 798-99; see also Stephenson v. Carlton, 28 S.W.3d 910, 911-12
(Tenn. 2000) (trial court lacked jurisdiction or authority to impose a sentence that was not a statutorily
authorized punishment on the date the crime was committed). In situations such as those in McConnell
and Stephenson, where the trial courts lacked jurisdiction, habeas corpus was the appropriate remedy.

                                                       2. Waiver

         I further conclude that, based upon supreme court case law decisions, habeas corpus relief is not
authorized in this case because the Petitioner’s challenged sentences stem from a guilty plea pursuant
to the terms of a negotiated plea agreement.

         [T]he rule has long been firmly established and settled that a plea of guilty
         understandingly and voluntarily entered into on the advice of counsel constitutes an
         admission of all facts alleged and a waiver of all non-jurisdictional and procedural
         defects and constitutional infirmities, if any, in any prior stage of the proceeding.

Lawrence v. Mullins, 449 S.W.2d 224, 229 (Tenn. 1969); see also Reed v. Henderson, 385 F.2d 995
(6th Cir. 1967); State ex rel. Edmonson v. Henderson, 421 S.W.2d 635 (Tenn. 1967).

        As noted supra, McConnell recognized that certain plea-bargained sentencing departures in
contradiction of our sentencing laws are non-jurisdictional and do not void the sentence. McConnell,
12 S.W.3d at 798; see also Hicks v. State, 945 S.W.2d 706, 707 (Tenn. 1997) (guilty plea waives
irregularity as to offender classification or release eligibility); State v. Mahler, 735 S.W.2d 226, 227-28
(Tenn. 1987). It follows that, if statutorily imposed sentencing classifications and release eligibility
criterion are non-jurisdictional and are subject to waiver, a rule of procedure requiring the imposition
of consecutive sentences may likewise be waived upon entry of a voluntary and knowing guilty plea.
To hold otherwise leads to the result, in this case, that the Petitioner’s pleas of guilty, although
sufficient to permit waiver of all constitutional infirmities, are somehow insufficient to permit waiver
of a procedural rule despite the fact that the Petitioner received the clear benefit of the plea bargain.3

        The voidable nature of the Petitioner’s sentence, if not waived, could have been remedied by
a post-conviction challenge. Obviously, the Petitioner chose to ignore the available remedy because
it could have, as evidenced by the individual sentences imposed in this case, resulted in an increased




          3
            It is noted that our sentencing act is replete with statutory sentencing directives, similar in nature to the
 procedural sentencing rule challenged in this case, which are routinely negotiated within the plea-bargaining process.
 If the Petitioner’s argument is accepted, any sentencing departure from these mandated provisions would present a
 cognizable claim for habeas corpus relief. Examples of such provisions include the repeat violent offender act,
 probation eligibility, enhanced punishment provisions, criminal gang offense provisions, and diversion provisions.

                                                             4
sentence of one hundred and thirty years.4 The consequences of the seven-year delay are that the
Petitioner is now barred from any collateral attack of his sentences.

        Ironically, if the State had dismissed the Petitioner’s theft conviction prior to sentencing, the
overall sentence length would have remained unchanged due to the concurrent nature of the sentences,
and the procedural error of concurrent sentencing would have been moot. Thus, the Petitioner’s
“sandbagging” by presenting his claim by means of habeas corpus, as opposed to a post-conviction
proceeding, denies finality to the judgment and results in deterioration of the State’s ability to re-
prosecute the case. Moreover, it cannot be ignored that under the invited-error doctrine, a criminal
defendant is not permitted to take advantage of an error that he invited, or participated in, and, as in this
case, clearly received the benefits of the error.

         For the above reasons, I am respectfully unable to reconcile the definitive holding of Archer and
those cases which have followed, which apply the rule that the writ of habeas corpus reaches only
jurisdictional error within the holding in McClaney v. Bell, which holds that the writ applies equally
to non-jurisdictional errors and irregularities. As authority for the granting of the writ, McClaney v. Bell
cites to the “history and framework” of the holdings of Archer and Richie and to the decision of Taylor;
however, in all of these cases, relief was denied, as noted supra, because the error was non-
jurisdictional. Moreover, McClaney expressly cites to Henderson v. State ex rel. Lance as authority for
granting habe relief; however, again, as discussed supra, relief was warranted in Lance because the trial
court lacked jurisdiction to usurp the authority of the Board of Parole and Pardons. It is plain that the
Shelby County Criminal Court is vested with jurisdiction to impose concurrent or consecutive sentences
in accordance with applicable sentencing laws and rules of procedure. Violation of a procedural rule
by a court acting within its jurisdiction does not divest the court of jurisdiction. Rather, as here, had
the procedural error not been voluntarily waived by the Petitioner’s guilty pleas, it would have
constituted a voidable, as opposed to a void sentence.

        For these reasons, I would dismiss the Petitioner’s application for the writ of habeas corpus.



                                                                       ___________________________________
                                                                       DAVID G. HAYES, JUDGE




         4
            W hile on bail for the offense of theft, the Petitioner was convicted of especially aggravated robbery,
 second degree murder, and attempted second degree murder, and received concurrent sentences of forty-five years,
 fifty years, and thirty years respectively.

                                                           5
