         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 30, 2007

 CHRISTOPHER KEYLN DEARING v. HOWARD CARLTON, WARDEN

                     Appeal from the Criminal Court for Johnson County
                             No. 5037   Lynn W. Brown, Judge


                    No. E2007-01191-CCA-R3-HC - Filed February 1, 2008


The Appellant, Christopher Keyln Dearing, proceeding pro se, appeals the Johnson County Criminal
Court’s summary dismissal of his petition for the writ of habeas corpus. Dearing is currently an
inmate at Northeast Correctional Complex in Johnson County as a result of his convictions for Class
D felony theft and Class E evading arrest. Dearing’s petition alleges that, under the terms of his plea
agreement, he pled guilty to Class D theft in exchange for a sentence of two years; however, the
judgment form and Department of Correction records show that the actual length of the sentence he
is serving is two years and one day. Dearing argues that, because the State has breached the plea
agreement, his sentence of two years and one day is void. After review, we agree with the trial court
that Dearing’s petition fails to state a cognizable claim for habeas corpus relief. Accordingly, the
judgment of the trial court is affirmed.

                Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES, J., concurred
in results only, and D. KELLY THOMAS, JR., J., filed a dissenting opinion.

Christopher Keyln Dearing, Pro se, Mountain City, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; and Sophia S. Lee, Assistant Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

                                        Procedural History

       On November 9, 2005, the Appellant entered guilty pleas in the Hamblen County Criminal
Court to the crimes of theft of property valued between $1,000 and $10,000, a Class D felony, and
evading arrest with flight, a Class E felony. The judgments of conviction reflect that the Appellant
received concurrent sentences of two years and one day for the theft conviction and one year for the
evading arrest conviction.
         On February 14, 2007, the Appellant filed a pro se petition for the writ of habeas corpus,
which alleged that his sentence of two years and one day for the theft of property conviction was
illegal because it was induced by the State’s agreement that his sentence would be two years. As
such, he argues that his guilty plea was not knowingly and voluntarily entered. The Appellant also
filed a motion to proceed in forma pauperis on the same day. According to the Appellant, the
agreed-upon two-year sentence is reflected on both the negotiated guilty plea form and the guilty plea
document. We would note, however, that neither document is included in the record before us
Moreover, the transcript of the guilty plea hearing, which would definitively determine the agreed-
upon sentence, is neither included. The judgment of conviction for felony theft, which is included
in the record, clearly reflects that the Appellant received a sentence of two years and one day for the
conviction.

        On May 4, 2007, the trial court entered an order granting the State’s motion to summarily
dismiss the petition, stating that nothing in the petition supported a finding that the conviction was
void or that the sentence had expired. Moreover, the trial court further held that the pauper’s oath
and affirmation in support of the Appellant’s motion to proceed in forma pauperis was insufficient
to make a finding of indigency. On May 25, 2007, the Appellant filed a timely notice of appeal.

                                              Analysis

         The right to seek habeas corpus relief is guaranteed by Article I, section 15 of the Tennessee
Constitution. Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004). However, the grounds upon which
habeas corpus relief will be granted are narrow. Id. at 20 (citations omitted). Relief will be granted
if the petition establishes that the challenged judgment is void. Id. A judgment is void “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 v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “If the court rendering a judgment has
jurisdiction of the person, the subject-matter, and has the authority to make the challenged judgment,
the judgment is voidable, not void; and the judgment may not be collaterally attacked in a suit for
habeas corpus relief.” Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

        The petitioner in a habeas corpus proceeding has the burden of establishing either a void
judgment or an illegal confinement by a preponderance of the evidence. If the petitioner carries this
burden, he is entitled to immediate release. Id. However, if the habeas corpus petition fails to
demonstrate that the judgment is void or that the confinement is illegal, neither appointment of
counsel nor an evidentiary hearing is required, and the trial court may properly dismiss the petition.
Hickman, 153 S.W.3d at 20 (citing T.C.A. § 29-21-109 (2003); Dixon v. Holland, 70 S.W.3d 33, 36
(Tenn. 2002)). The determination of whether habeas corpus relief should be granted is a question
of law which this court reviews de novo. State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006);
Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000).

       The Appellant, on appeal, argues that his sentence is void and, thus, illegal because his guilty
plea was not knowingly and voluntarily entered, as it was induced by an unfulfilled promise to


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receive a specific sentence of two years. While the Appellant is correct that a guilty plea induced
by misrepresentation is improper, a claim that a guilty plea was not voluntarily entered, even if
proven, merely renders a judgment voidable, not void. Archer, 851 S.W.2d at 164; see also Joseph
T. Faulkner v. State, No. W1999-00223-CCA-R3-PC (Tenn. Crim. App. at Jackson, Oct. 17, 2000)
(“[w]here a promise embodied in a plea agreement cannot be legally performed by the parties, the
voluntariness of the plea will be affected since the plea bargain agreement is the direct inducement
for the guilty plea.”). Thus, habeas corpus relief is not appropriate in this case, as post-conviction
relief is the procedural avenue for attacking voidable judgments. Hickman, 153 S.W.3d at 20. As
noted by our supreme court, “[v]oluntariness of the [guilty] plea . . . has no relevance in a habeas
corpus proceeding.” Summers v. State, 212 S.W.3d 251, 259 (Tenn. 2007).

        Although not raised as error by the Appellant, we are constrained to note that a sentence of
two years and one day may constitute, under certain circumstances, an illegal sentence. In this case,
these circumstances are not apparent from the record before us. Tennessee Code Annotated section
40-35-211(1) (2006) provides, in relevant part, that:

                Specific sentences for a felony shall be for a term of years or months or life,
        if the defendant is sentenced to the department of correction; or a specific term of
        years, months, or days if the defendant is sentenced for a felony to any local jail or
        workhouse. . . .

(emphasis added). In this case, the Appellant was sentenced to incarceration in the Department of
Correction for a term of two years and one day. This sentence is in contravention of the statute. See
James Gordon Coons, III v. State, No. 01C01-9801-CR-00014 (Tenn. Crim. App. at Nashville, May
6, 1999) (finding sentence of six years and one day incarceration in the Department of Correction
violated the plain meaning of Tennessee Code Annotated section 40-35-211(1)). Nonetheless, it has
been held that in the context of plea bargaining, a defendant may agree to a sentence in contravention
of statutory provisions, thus, waiving consideration of the issue based upon a knowing and voluntary
guilty plea. Id. In the instant case, the Appellant has failed to include the relevant sentencing
documents to support his position. Accordingly, in the absence of evidence to the contrary, we must
presume that the Appellant’s guilty plea represents a knowing and voluntary plea which resulted in
the imposition of a two-year and one-day sentence as provided by the plea agreement. As such, we
find no error in the trial court’s summary dismissal of the petition.

         In a second issue, the Appellant alleges as error the trial court’s failure to rule on his motion
to proceed in forma pauperis. The court’s order dismissing the habeas corpus petition included the
language, “[s]ince the pauper’s oath and affirmation is not sufficient to make a finding of indigency,
the court makes no finding regarding indigency.” According to the Appellant, the court “falsified
its reasons for not making a ruling upon the properly filed motion,” as the oath and affirmation were
properly completed and established his indigency. It is obvious from the trial court’s order that,
because “no finding regarding indigency” was made, the ruling was not a final judgment and, thus,




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not appealable as of right under the provisions of Rule 3, Tennessee Rules of Appellate Procedure.1
Nonetheless, no ruling was required by the trial court because the Appellant’s petition clearly failed
to state a cognizable claim. As noted by our supreme court, “the liberal procedural safeguards of the
Post-Conviction Procedure Act [have not been incorporated] into the provisions governing habeas
corpus.” Summers, 212 S.W.3d at 261. As noted by the State, this includes the right to counsel in
a habeas corpus proceeding. Accordingly, we find no error.

                                               CONCLUSION

       Based upon the foregoing, the summary dismissal of the Appellant’s petition for the writ of
habeas corpus is affirmed.




                                                     ___________________________________
                                                     DAVID G. HAYES, JUDGE




        1
          An appeal from the denial of a motion to proceed in forma pauperis is more properly addressed through the
interlocutory provisions of Rule 9 or Rule 10 of the Tennessee Rules of Appellate Procedure.

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