         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs April 7, 2004

             RONALD L. JOHNSON v. FLORA HOLLAND, Warden

                 Direct Appeal from the Criminal Court for Davidson County
                          No. 3347    J. Randall Wyatt, Jr., Judge



                     No. M2003-01992-CCA-R3-HC - Filed May 10, 2004


The petitioner, Ronald L. Johnson, appeals as of right from the Davidson County Criminal Court’s
summary dismissal of his petition for writ of habeas corpus. He argues that his convictions for two
counts of passing worthless checks are void because they were not ordered to be served
consecutively to a sentence from which he had been paroled at the time of the check offenses, his
parole subsequently being revoked. The habeas corpus court dismissed his petition without a
hearing, and we affirm that action.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT
W. WEDEMEYER , J., joined.

Ronald L. Johnson, Middle Tennessee Correctional Complex, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

         On January 5, 2001, the petitioner pled guilty in the Hamilton County Criminal Court to two
counts of passing worthless checks, one a Class D felony and one a Class E felony. Pursuant to his
negotiated plea agreement, he was sentenced by the trial court as a career offender at 60% release
eligibility to concurrent terms of twelve years and six years, respectively. Although not reflected in
his judgment forms, according to the transcript of his guilty plea hearing and his written plea
agreement, the sentences were to be served concurrently with “any other sentences he already ha[d].”
However, the judgments do not refer to any other sentences. The petitioner’s parole status was not
discussed at the hearing.
         Several months later, the petitioner sent a letter to the assistant district attorney who handled
his case, asserting that he had learned from the Tennessee Board of Probation and Parole that,
because the offenses to which he had just pled guilty in Hamilton County were committed while he
was on parole for a prior felony, his time would have to be served consecutively to his parole
violation sentence. The petitioner proposed that, in lieu of his filing a motion to withdraw his guilty
pleas, his sentences be modified to concurrent terms of twelve years and six years at 45% release
eligibility, to be served consecutively to his parole violation sentence. There is nothing in the record
to indicate whether the State responded to the petitioner’s letter. However, on September 6, 2001,
amended judgments were entered, differing from the previous judgments only because each provided
the sentences were to be served at 45%, rather than 60%. Each judgment was silent as to whether
it was to be served consecutively to any other sentence. The assistant district attorney explained to
the trial court at the time he presented the amended judgments:

                        We’d sentenced [the petitioner] in 235192, count 1, to a 12-
                year sentence as a career offender at 60 percent, and also in count 2
                as a career offender to 6 years at 60 percent.

                        Our understanding or our agreement at the time -- and I
                reviewed it this morning to make sure that it’s correct -- was that we
                had said it would be run concurrent with any other sentence he would
                have.

                        He’s since been sent to the Department of Corrections [sic],
                and I received a letter from him last week that, of course the
                Department of Corrections [sic], since he was apparently on parole at
                the time of the offenses that he picked up here, by statute, they’re
                insisting that it would have to be run consecutive.

                       In his letter, he requested that I consider amending the
                judgment to make it a Range III offender at 45 percent. It’s still going
                to be run consecutive, but based on his request, I’m entering an
                amended judgment in each case to reduce it to persistent offender at
                45 percent on, again, 12 years and 6 years.

                         And I’ll get certified copies of this and send, forward him a
                letter that I’ve complied with his request, forego the need for any kind
                of post conviction petition or anything like that. Hopefully this will
                satisfy him.

                        THE COURT: All right. You’re doing that to more nearly
                affect what you intended to do at the time?

                        [ASSISTANT DISTRICT ATTORNEY]: Yes, sir. Yes, sir.


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The file does not reflect whether the State had verified independently the petitioner’s parole status
or, simply, had relied on the petitioner’s claim in his earlier letter.

        Sometime in late December 2002 or early January 2003, the petitioner filed a pro se petition
for a writ of habeas corpus.1 In an amended petition filed on April 23, 2003, after the appointment
of counsel, the petitioner alleged that he was on parole at the time he committed at least one of the
passing worthless check offenses, that the sentences imposed directly violated state law requiring
that offenses committed while on parole be served consecutively to a sentence for parole violation,
and that the judgments were therefore void when entered. The petitioner further alleged there was
no authority for his resentencing eight months after the entry of his guilty pleas and that his
sentences, as amended, rendered his guilty pleas unknowing and involuntary. Although both the pro
se and amended petitions recited that the petitioner was on parole when he committed the offenses
upon which the two judgments in question were based, neither presented any documentation of this
alleged fact.

        The habeas court summarily dismissed the petition on July 8, 2003, ruling that the petition
did not state any grounds for habeas corpus relief, and subsequently denied the petitioner’s motion
to reconsider. After waiving counsel on appeal, the petitioner filed a pro se notice of appeal to this
court in which he challenges the summary dismissal of his petition.

                                                    ANALYSIS

        It is well established in Tennessee that the remedy provided by a writ of habeas corpus is
limited in scope and may only be invoked where the judgment is void or the petitioner’s term of
imprisonment has expired. State v. Ritchie, 20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport,
980 S.W.2d 407, 409 (Tenn. Crim. App. 1998). A void, as opposed to a voidable, judgment has
been defined by our supreme court as “one in which the judgment is facially invalid because the
court did not have the statutory authority to render such judgment.” Dykes v. Compton, 978 S.W.2d
528, 529 (Tenn. 1998); see also Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). Thus, 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, or that a defendant’s sentence of imprisonment . . . has expired.”
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (quoting State v. Galloway, 45 Tenn. (5 Cold.)
326, 336-37 (1868)). “The burden of proof that the judgment is ‘void,’ rather than ‘voidable,’ rests
with the petitioner. That burden entails showing that the jurisdictional defect appears in the record
of the original trial, thereby creating a void judgment.” McLaney v. Bell, 59 S.W.3d 90, 92-93
(Tenn. 2001) (citations and footnote omitted). Because the determination of whether a writ of
habeas corpus should be granted is a matter of law, we review the habeas court’s summary dismissal
of the petition de novo, with no presumption of correctness. Id. at 92.




       1
           The date stamp on this document is illegible.

                                                           -3-
        A sentence imposed in direct contravention of a statute is illegal and therefore “void or
voidable depending upon whether the illegality of the sentence is evident on the face of the judgment
or the record of the underlying proceedings.” McLaney, 59 S.W.3d at 94 (citing Stephenson v.
Carlton, 28 S.W.3d 910, 911 (Tenn. 2000)); see also State v. Burkhart, 566 S.W.2d 871, 873 (Tenn.
1978). The petitioner alleges that his offenses were committed while he was on parole for a prior
felony. If such were the case, the petitioner is correct in asserting that his sentences could not
lawfully be run concurrently with time he was already serving on his parole violation. Tennessee
Code Annotated section 40-28-123(a) (1997 & Supp. 2001) provides in pertinent part:

                       Any prisoner who is convicted in this state of a felony,
               committed while on parole from a state prison, jail or workhouse,
               shall serve the remainder of the sentence under which the prisoner
               was paroled, or such part of that sentence, as the board may determine
               before the prisoner commences serving the sentence received for the
               felony committed while on parole.

In addition, Tennessee Rule of Criminal Procedure 32(c)(3), “Mandatory Consecutive Sentences,”
provides:

                        Where a defendant is convicted of multiple offenses from one
               trial or where the defendant has additional sentences not yet fully
               served as the result of the convictions in the same or other court and
               the law requires consecutive sentences, the sentence shall be
               consecutive whether the judgment explicitly so orders or not. This
               rule shall apply:

                       (A) to a sentence for a felony committed while on
                       parole for a felony[.]

       The State contends that the judgments are voidable, rather than void, because neither the
judgments on their face nor the record of the underlying proceedings reveals that the petitioner was
on parole at the time he committed the offenses. In support, the State cites the assistant district
attorney’s statement to the trial court, made during the guilty plea hearing, that the plea agreement
was for the petitioner’s sentences to run concurrently to any other sentences he had, but he was “not
sure exactly what other sentences he ha[d].” The State additionally argues that, even if the facts
presented by the petitioner were true, the illegal sentencing issue was appropriately resolved by the
amended judgment, which incorporated the terms proposed by the petitioner and agreed to by the
State. The petitioner responds by asserting that the State and the trial court either were or should
have been aware of his parole status at the time he committed the offenses, that a sentence in direct
contravention of a statute is illegal and void, and that he never agreed to the amended judgments,
which were entered without his consent or presence and without the knowledge or presence of
counsel.



                                                -4-
        In McLaney v. Bell, our supreme court held that where the face of a judgment or the record
of the underlying proceedings demonstrates that a petitioner received illegal concurrent sentencing,
the judgment of conviction is void and habeas corpus relief is available. 59 S.W.3d at 91. The
petitioner in McLaney alleged that his plea bargain agreement resulted in an illegal concurrent
sentence, in violation of the statute that requires consecutive sentencing when a felony is committed
when a defendant is on bail from a prior felony. Id. at 92. Our supreme court reversed the summary
dismissal of the petition and remanded the case to the habeas court for the appointment of counsel
and an evidentiary hearing. Id. at 95. The court instructed that, should the habeas court determine
that the petitioner was on bail when he committed the offenses and thus that the sentences he
received were void, it should transfer the case to the convicting court, where the petitioner would
be entitled to withdraw his guilty pleas and proceed to trial for the offenses. Id. at 95-96. The court
explained, however, that it would have reached a different result had the pro se petitioner been
represented by counsel:

                        The trial court in this case, finding no clear proof in the
                documents submitted with the petition that the sentence was void,
                dismissed the petition. Had McLaney been represented by counsel,
                we would find no error in this dismissal. Had an attorney been
                appointed, if the record of the underlying proceedings clearly showed
                that the latter rape and burglary offenses were committed while
                McLaney was on bail, appointed counsel presumably would have
                brought those records to the attention of the court, and a
                determination whether the judgment was void could have been
                resolved on the merits.

Id. at 94.

        Based upon this language from McLaney, we conclude that the court was correct in
dismissing the petition. Neither the original petition nor the amended version filed by counsel
presented any documentation that the petitioner was on parole when he committed the two offenses
which are the basis for this appeal. The transcript of the proceedings when the amended judgments
were entered likewise is unhelpful to the petitioner, for it does not reflect that the State did other than
accept the petitioner’s claim before presenting the amended judgments to the court. Accordingly,
the judgments are, at best, voidable and not the basis for granting relief.

                                            CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the habeas court
dismissing the petition.


                                                         ___________________________________
                                                         ALAN E. GLENN, JUDGE


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