        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                September 28, 2011 Session

             AUTHOR RAY TURNER v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Morgan County
                          No. 9422   E. Eugene Eblen, Judge


                  No. E2011-00074-CCA-R3-HC - Filed April 25, 2012


J OSEPH M. T IPTON, P.J., concurring.

        I concur with the majority opinion. As indicated in the opinion, I have criticized
Summers v. Fortner, 267 S.W.3d 1 (Tenn. Crim. App. 2008), for its holding that a habeas
court, not the convicting court, is to determine from the existing record if a petitioner
subjected to an illegal sentence should be allowed to withdraw a guilty plea. I believe it
misinterprets Smith v. Lewis, 202 S.W.3d 124 (Tenn. 2006). In Smith, a habeas corpus case,
after the court concluded that an illegal sentence had been imposed, it determined from the
guilty plea record that the plea to the relevant charge was not material to the “bargained-for”
agreement and resulting effective sentence and held that the petitioner was not entitled to
withdraw that guilty plea. Id. at 130. It distinguished the case from one in which the illegal
sentence materially resulted from a plea agreement. See Henderson v. State ex rel. Lance,
419 S.W.2d 176, 178-79 (Tenn. 1967) (holding that defendant was entitled to withdraw
guilty plea upon habeas corpus proceedings where he pled guilty in exchange for an illegal
sentence).

        As to the procedure needed to determine if the petitioner is entitled to withdraw his
guilty plea once the illegal sentence is vacated, it has typically been to remand the case to the
court that accepted the plea. See, e.g., McLaney v. Bell, 59 S.W.3d 90, 95-96 (Tenn. 2001);
McConnell v. State, 12 S.W.3d 795, 300 (Tenn. 2000); State v. Burkhart, 566 S.W. 2d 871,
873 (Tenn. 1978). Often, the circumstances that are relevant to the issue, such as plea
negotiations and the defendant’s understanding of and reliance on the bargain, need to be
proved at a hearing. Although the court in Smith concluded from the existing record that a
withdrawal was unnecessary, it did not overrule any of the procedure used in those cases.
In this regard, I believe the conclusion in Summers v. Fortner that the habeas court is to
determine solely from the existing record if a petitioner is entitled to withdraw a guilty plea
is incorrect. I respectfully believe its holding should be overturned.




                                        ____________________________________
                                        JOSEPH M. TIPTON, PRESIDING JUDGE
