         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               Assigned on Briefs May 17, 2005

        ANDRE L. MAYFIELD v. HOWARD CARLTON & STATE OF
                           TENNESSEE

                     Appeal from the Criminal Court for Johnson County
                              No. 4434 Robert E. Cupp, Judge



                      No. E2005-00138-CCA-R3-HC - Filed July 29, 2005


The petitioner, Andre L. Mayfield, filed a petition for writ of habeas corpus arguing that: (1) he was
improperly considered as a multiple rapist; (2) the trial court lacked the authority to sentence the
petitioner as a multiple rapist without an indictment charging him as such; (3) the trial court lacked
authority to modify the petitioner’s original sentence; (4) the trial court failed to expressly state how
the sentence in count five (5) would run; (5) the trial court improperly filled out the judgment form
for count four (4); and (6) the judgment forms indicating that the petitioner was sentenced as a
multiple offender with a release eligibility of thirty-five percent (35%) are improper. The trial court
denied the petition. The petitioner appeals. For the following reasons, we affirm the judgment of
the trial court.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.
WOODALL, JJ., joined.

Andre L. Mayfield, Pro Se, Mountain City, Tennessee.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General and
Joe Crumley, District Attorney General for the appellee, State of Tennessee.



                                              OPINION

                                         Factual Background

       On July 15, 1993, the petitioner pled guilty to three (3) counts of aggravated rape and one
(1) count of aggravated robbery. As a result of the plea agreement, the petitioner was sentenced to
concurrent terms of twenty (20) years for each aggravated rape conviction and ten (10) years for the
aggravated robbery conviction, for an effective sentence of twenty (20) years as a Range I standard
offender with a release eligibility of thirty percent (30%).

        On March 15, 1999, the petitioner filed a motion to withdraw his guilty plea. In that motion,
the petitioner argued that because he was classified by the Tennessee Department of Correction as
a multiple rapist, his release eligibility was changed from thirty percent (30%) to one hundred
percent (100%) in violation of his plea agreement and, therefore, his plea was ineffective. The trial
court allowed the petitioner to withdraw his plea agreement.

        In June of 1999, the petitioner was tried by a Davidson County jury and found guilty of
aggravated robbery, aggravated rape, rape and two (2) counts of aggravated kidnapping for crimes
perpetrated on two (2) victims. As a result, he was sentenced to an effective term of fifty (50) years
as a multiple rapist and multiple offender. The petitioner appealed. On direct appeal, this Court
affirmed the petitioner’s conviction, but modified the judgment of the trial court to indicate that the
petitioner was a Range II multiple rapist for purposes of the rape conviction. See State v. Andre L.
Mayfield, No. M1999-02415-CCA-R3-CD, 2001 WL 637700 (Tenn. Crim. App., at Nashville, June
11, 2001), perm. app. denied, (Tenn. 2001).

        On July 13, 2004, the petitioner filed a petition for writ of habeas corpus in the Johnson
County Circuit Court in case number 4434.1 In that petition, the petitioner argued that: (1) his fifty
(50) year sentence is void; (2) his sentence as a multiple rapist on count three (3) is in direct
contravention of Tennessee Code Annotated section 39-13-523(a)(2); (3) his sentence as a multiple
rapist on count five (5) is void because the trial court lacked authority to impose the sentence without
a separate indictment charging the petitioner as a multiple rapist; (4) the trial court lacked the
authority to modify the petitioner’s original sentence from twenty (20) years to fifty (50) years; (5)
his sentence on count five (5) is in violation of Tennessee Code Annotated section 40-20-111
because the trial court failed to expressly state whether the sentence would run concurrent or
consecutive to the other sentences; (6) his sentence on count four (4) is void because the trial court
expressly ordered the sentence to run concurrent to another sentence, but the judgment form states
that the sentences are to be served consecutively; and (7) the petitioner is improperly classified as
a Range II multiple offender. The trial court entered an order on December 8, 2004, denying the
petition for habeas corpus relief. The petitioner filed a timely notice of appeal.

       On appeal, the pro se petitioner presents the following issues: (1) whether the trial court
properly classified the petitioner as a multiple rapist; (2) whether the trial court had the authority to
enhance the petitioner’s sentence to that of a multiple rapist without an indictment charging such
enhancement; (3) whether the trial court lacked the authority to modify the petitioner’s original
sentence; (4) whether the fifteen (15) year sentence for rape is void because the trial court failed to
expressly state whether the sentence would run concurrent or consecutive to the other sentences; and
(5) whether the sentence for aggravated kidnapping under count four (4) is void because the trial


         1
          The technical record also includes a copy of a previous petition for writ of habeas corpus filed by the petitioner
on April 22, 2004, in case number 4385.

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court ordered the sentence to run concurrent to the sentence for aggravated rape under count three(3),
but the judgment form incorrectly states that the sentences be served consecutively.

                                              Analysis

                           Standard of Review for Habeas Corpus Relief

        On appeal, the petitioner argues that the trial court improperly dismissed the petition. The
State argues that the petition for habeas corpus relief was properly denied because the petitioner
failed to prove that the judgment of the trial court was void or that his sentence is illegal.

        The grounds upon which a writ of habeas corpus may be issued are very narrow. McLaney
v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). A writ of habeas corpus is available only when it appears
on the face of the judgment or the record that the convicting court was without jurisdiction to convict
or sentence the defendant or that the defendant is still imprisoned despite the expiration of his
sentence. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62
(Tenn. 1992).

        A habeas petitioner can only attack a judgment that is void on its face and not one that is
merely voidable. State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000). “A void judgment is one in
which the judgment is facially invalid because the court lacked jurisdiction or authority to render the
judgment or because the defendant’s sentence has expired.” Taylor v. State, 995 S.W.2d 78, 83
(Tenn. 1999). A petitioner has the burden of establishing by a preponderance of the evidence that
the judgment he attacks is void or that his term of imprisonment has expired. State ex rel. Kuntz v.
Bomar, 381 S.W.2d 290, 291 (Tenn. 1964). If a petitioner fails to establish by a preponderance of
the evidence that his conviction is void or his term of imprisonment has expired, he is not entitled
to immediate release. Passarella v. State, 891 S.W.2d 619, 627-28 (Tenn. Crim. App. 1994),
superceded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-00266, 1998 WL
104492, at *1 n.2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998).

                                 A. Multiple Rapist Classification

        The petitioner contends that his sentence as a multiple rapist on count three (3) is void and
in direct contravention of Tennessee Code Annotated section 39-13-523(a)(2). Specifically, he
argues that this was his “first rape offense conviction ever, and the statute only applies to a second
or subsequent rape conviction.” He cites State v. Johnson, 970 S.W.2d 500, 505 (Tenn. Crim. App.
1996), to support his argument. The State counters that the petitioner was properly classified as a
multiple rapist.

       Tennessee Code Annotated section 39-13-523(a)(2) defines a multiple rapist as “a person
convicted two (2) or more times of violating the provisions of § 39-13-502 or § 39-13-503, or a
person convicted at least one (1) time of violating § 39-13-502, and at least one time of § 39-13-
503.” Classification as a multiple rapist requires a defendant to serve “the entire sentence imposed


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by the court undiminished by any sentence reduction credits such person may be eligible for or earn.”
Tenn. Code Ann. § 39-13-523(b).

        In State v. Johnson, the defendant was convicted of a rape prior to the enactment of the 1992
statute mandating service of the entire sentence for a multiple rapist. This Court determined that the
1992 statute applied as long as one (1) of the rape offenses at issue was committed after the
enactment of the law. Johnson, 970 S.W.2d at 505. In the case herein, the petitioner was convicted
of one (1) count of aggravated rape and one (1) count of rape, both occurring after the enactment
of the 1992 statute mandating service of the entire sentence for a multiple rapist. The petitioner
clearly qualifies as a multiple rapist as he was convicted of two (2) rape offenses as required by the
statute. The petitioner’s classification as a multiple rapist does not result in a void judgment. This
issue is without merit.

                    B. Separate Indictment for Multiple Rapist Classification

       The petitioner also argues that his sentence as a multiple rapist in count five (5) is void
because the trial court lacked the authority to impose an enhanced sentence classifying the petitioner
as a multiple rapist without a separate indictment specifying and charging that the offense was a
second offense eligible for an enhanced punishment. The State disagrees.

       In support of his argument, the petitioner argues that Tennessee Code Annotated section 40-
35-203 requires the State to file a separate indictment specifying and charging the petitioner with
rape as a second offense eligible for an enhancement punishment. Tennessee Code Annotated
section 40-35-203(e) outlines a trial court’s procedures for imposing sentences and provides as
follows:

       If the criminal offense for which the defendant is charged carries an enhanced
       punishment for a second or subsequent violation of the same offense, the indictment
       in a separate count shall specify and charge such fact. If the defendant is convicted
       of the offense, then the jury must find that beyond a reasonable doubt the defendant
       has been previously convicted the requisite number of times for the same offense.
       Upon such finding, the defendant shall be subject to the authorized terms of
       imprisonment for the felonies and misdemeanors as set forth in § 40-35-111.

Tenn. Code Ann. § 40-35-203(e). The Sentencing Commission Comments for Tennessee Code
Annotated section 40-35-203 state that an “example of an application of subsection (e)” is found in
Tennessee Code Annotated section 39-17-418, which specifically provides for “an enhanced penalty
for third and subsequent offenses” for simple possession or casual exchange of a controlled
substance. Tenn. Code Ann. § 39-17-418 Sent. Comm’n Cmts. In the case herein, the petitioner was
convicted of one (1) count of aggravated rape and one (1) count of rape, in violation of Tennessee
Code Annotated sections 39-13-502 and 39-13-503, respectively. Neither statute proscribes an
enhanced punishment for a second or subsequent offense as required by Tennessee Code Annotated
section 40-35-203. Further, Tennessee Code Annotated section 39-13-523 merely defines a multiple


                                                 -4-
rapist as a person convicted two (2) or more times of violating the provisions of the rape statutes,
it does not indicate that a trial court or a jury must determine whether a defendant is a multiple rapist.
The classification is, essentially, automatic upon a defendant’s second conviction for a rape offense.
The petitioner has failed to cite any authority dictating otherwise. We fail to see how a separate
indictment is necessary in order to classify the petitioner as a multiple rapist. Again, the petitioner’s
classification as a multiple rapist does not result in a void judgment. This issue is without merit.

                               C. “Modification” of Original Sentence

        Next, the petitioner argues that the trial court lacked the authority “to modify the petitioner’s
original sentence from 20 years to 50 years, once the judgement [sic] on the original 20 year sentence
had became [sic] final, and the petitioner was transfered [sic] to the Tennessee Department of
Correction, to start serving the 20 year sentence.” The State contends that there is no defect in the
trial court’s judgment that is “discernable from the record.”

        In 1993, the petitioner pled guilty to three (3) counts of aggravated rape and one (1) count
of aggravated robbery. Pursuant to the agreement, the petitioner was to serve an effective sentence
of twenty (20) years with a thirty percent (30%) release eligibility. However, the Department of
Correction classified the petitioner as a multiple rapist, requiring him to serve his sentence in its
entirety. Therefore, in 1999, the petitioner voluntarily moved to withdraw his guilty plea from 1993
and expressed his desire to go to trial on the offenses with which he was charged. The petitioner
was permitted to withdraw his plea because the petitioner was not eligible for a thirty percent (30%)
release eligibility as a multiple rapist. As a result, the petitioner was tried by a jury as if he had never
entered a plea. The petitioner now essentially argues that the trial court did not have the authority
to entertain his motion for withdrawal of his pleas because his motion was untimely.

        A trial court has the authority to “correct an illegal, as opposed to a merely erroneous,
sentence at any time, even if it has become final.” State v. Burkhart, 566 S.W.2d 871, 872 (Tenn.
1978). This Court has previously determined that judgments setting release eligibility beyond the
outer limits of statutory authority are void. See Dewayne Cathey v. State, No. W2003-00411-CCA-
R3-CD, 2004 WL 1686869 (Tenn. Crim. App., at Jackson, July 28, 2004), perm. app. denied, (Tenn.
Dec. 20, 2004); William Boyd v. State, No. E1999-02179-CCA-R3-PC, 2000 WL 1661526 (Tenn.
Crim. App. Nov. 6, 2000). In the case herein, the petitioner moved to withdraw his guilty pleas
based on the premise that the sentence he agreed to was, in effect, an illegal sentence. Though the
judgment was final at the time, the trial court had jurisdiction to allow the petitioner to withdraw his
plea because the judgment was illegal and void. The petitioner received a trial and his sentence and
convictions were affirmed on direct appeal. See Andre L. Mayfield, 2001 WL 637700, at 15. While
the petitioner is surely dissatisfied that his sentence was increased from twenty (20) to fifty (50)
years, there is no proof in the record that the judgment is void such that would warrant habeas corpus
relief. This issue is without merit.




                                                    -5-
                                              D. Sentence

         The petitioner contends on appeal that the trial court failed “to expressly state how count 5
would run from or with the other counts” and that the judgments are contrary to the stated intent of
the trial court in regard to the manner of service of count four (4). The State argues that the trial
court’s intention as to the manner of service of the sentences is clear from the record.

         The judgments herein reflect that the petitioner was convicted of aggravated kidnapping in
count one (1) and sentenced to fifteen (15) years as a Range II multiple offender. The sentence in
count one was ordered to run concurrent to the sentence in count two (2) and consecutive to the
sentence in count three (3). In count two (2), the petitioner was convicted of aggravated robbery and
sentenced to fifteen (15) years as a Range II multiple offender. The sentence for aggravated robbery
was ordered to run concurrent to the sentence in count one (1) and consecutive to the sentence in
count three (3). In count three (3), the petitioner was convicted of aggravated rape and ordered to
serve twenty (20) years as a multiple rapist. The sentence in count three (3) was ordered to run
consecutive to the sentences in counts one (1), two (2), four (4) and five (5). In count four (4), the
petitioner was convicted of aggravated kidnapping and ordered to serve fifteen (15) years as a Range
II multiple offender. The sentence in count four (4) was ordered to be served concurrent with count
five (5) and consecutive to counts one (1), two (2), and three (3). In count five (5), the petitioner was
convicted of rape and sentenced to fifteen (15) years as a multiple rapist. the sentence in count five
(5) was ordered to be served concurrent with count four (4) and consecutive to counts one (1), two
(2), and three (3). The petitioner was sentenced to a total effective sentence of fifty (50) years.
         The petitioner cites the following language from the transcript as the basis of his complaint:

        It’s the judgment of the Court that Counts One and Two will run concurrent, one with
        the other. They will run consecutive to Count Three. They will run consecutive to
        Counts Three and Four, which will run concurrent one with the other. . . . It’s the
        intention of this Court to sentence the defendant to the Department of Corrections for
        a period of fifty years.

The petitioner argues that because the trial court failed to state how the sentence in count five (5)
would run and because the stated intent of the trial court conflicts with the judgment forms, the
judgment is void.

        We acknowledge that the transcript of the sentencing hearing conflicts with the judgment
forms entered by the trial court. Ordinarily, when there is a conflict between the judgment form and
the transcript, the transcript controls. See State v. Moore, 814 S.W.3d 381, 383 (Tenn. Crim. App.
1991). However, after examining the transcript and the judgment forms, it appears that the trial court
merely misstated the petitioner’s sentence at the sentencing hearing. The trial court ordered the
sentences in counts one (1) and two (2) to run consecutive to the sentences in counts three (3) and
four (4) when the trial court intended to sentence the petitioner to a total sentence of fifty (50) years.
In order to sentence the petitioner to fifty (50) years, the sentences in counts one (1) and two (2) must
be served consecutively to the sentences in counts four (4) and five (5), rather than three (3) and four


                                                   -6-
(4). As stated above, a habeas petitioner can only attack a judgment that is void on its face and not
one that is merely voidable. Ritchie, 20 S.W.3d at 630. “A void judgment is one in which the
judgment is facially invalid because the court lacked jurisdiction or authority to render the judgment
or because the defendant’s sentence has expired.” Taylor, 995 S.W.2d at 83. Thus, we determine
that even if there were a definitive conflict between the sentences as stated on the judgments and the
language of the transcript, such a conflict would merely render the judgments voidable, and
ineligible for habeas corpus relief. This issue is without merit.2

                                                      Conclusion

         For the foregoing reasons, the judgment of the trial court is affirmed.




                                                                  ___________________________________
                                                                  JERRY L. SMITH, JUDGE




         2
          The State also argues in a separate issue that “the [petitioner’s] claim that his sentences as a Range II multiple
offender were based on invalid judgments of prior convictions render his sentences ‘voidable’ at best.” The petitioner
presented this argument in his original petition, but appears to have abandoned this argument on appeal. As a result, we
choose not to address the issue.

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