        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                August 25, 2009 Session

        TRACY LYNN HARRIS v. JIM WORTHINGTON, WARDEN

                 Appeal from the Criminal Court for Morgan County
                         No. 9240 E. Eugene Eblen, Judge




                 No. E2008-02363-CCA-R3-HC - Filed June 29, 2010




The Petitioner, Tracy Lynn Harris, appeals as of right from the Morgan County Criminal
Court’s denial of his petition for habeas corpus relief. Following our review, we affirm the
judgment of the habeas corpus court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which C AMILLE R.
M CM ULLEN, J., joined. J OSEPH M. T IPTON, P.J., filed a separate concurring opinion.

Robert L. Vogel, attorney for appellant, Tracy Lynn Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; and John H. Bledsoe, Senior Counsel,
attorneys for appellee, State of Tennessee.

                                        OPINION

       The record reflects that the Petitioner’s convictions concern the October 30, 1998
death of Madelyn Ruth Bomar. In January 2000, the Petitioner was indicted for premeditated
first degree murder, first degree felony murder, especially aggravated burglary, and
aggravated rape. Pursuant to a plea agreement, the State dismissed the premeditated murder
and especially aggravated burglary counts and the Petitioner pled guilty to felony murder and
aggravated rape. The judgments correctly reflect the terms of the agreement that the
Petitioner would serve a sentence of life without the possibility of parole for the felony
murder conviction concurrently with a twenty-year sentence at one hundred percent for the
aggravated rape conviction. However, the judgment for aggravated rape does not include the
condition of community supervision for life as mandated by Tennessee Code Annotated
section 39-13-524.

        On July 13, 2006, the Petitioner filed a petition for habeas corpus relief alleging that
the aggravated rape judgment is void because the trial court failed to impose as a condition
of his aggravated rape sentence community supervision for life. The habeas corpus court
appointed counsel and held an evidentiary hearing. See Summers v. Fortner, 267 S.W.3d 1,
6 (Tenn. Crim. App. 2008) (“when a petitioner attaches to his petition documentation from
the record showing that his sentence is indeed illegal, the trial court must appoint counsel and
hold a hearing to determine the scope of the remedy available to the petitioner”). Following
the hearing, the habeas corpus court denied habeas corpus relief but remanded the aggravated
rape case to the trial court for the entry of a corrected judgment to include the community
supervision for life requirement. See Smith v. Lewis, 202 S.W.3d 124 (Tenn. 2006) (unless
illegality is proven to be a bargained-for element of the plea agreement, proper remedy is
remand to the convicting court for correction of judgment). On appeal, the Petitioner
contends that the habeas corpus court erroneously denied his petition for habeas corpus relief
because the community supervision condition was a material element of his plea bargain and
he should be allowed to withdraw his guilty pleas. The State argues that the Petitioner failed
to show the community supervision condition was a material element of the plea agreement;
therefore, the Petitioner is only entitled to the entry of a corrected judgment on the
aggravated rape conviction. Following our review, we agree with the State.

                                         ANALYSIS

       In Tennessee, the grounds upon which habeas corpus relief may be granted are very
narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The writ will issue only when the
petitioner has established a lack of jurisdiction for the order of confinement or that he is
otherwise entitled to immediate release because of the expiration of his sentence. See Ussery
v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell,443 S.W.2d 839
(Tenn. Crim. App. 1969). The purpose of the habeas corpus petition is to contest a void, not
merely a voidable, judgment. State ex rel. Newsome v. Henderson, 424 S.W.2d 186, 189
(Tenn. 1968). A void, as opposed to a voidable, judgment is “one that is facially invalid
because the court did not have the statutory authority to render such judgment.” See
Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007). A petitioner bears the burden of
establishing a void judgment or illegal confinement by a preponderance of the evidence. See
Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). A court may summarily dismiss a petition
for habeas corpus relief, without the appointment of counsel and without an evidentiary
hearing, if the petition does not state a cognizable claim. See Hickman v. State, 153 S.W.3d
16, 20 (Tenn. 2004).



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        Relevant to our analysis is Smith v. Lewis, 202 S.W.3d 124 (Tenn. 2006), wherein our
supreme court held that when a judgment imposed pursuant to a negotiated plea agreement
contains an illegal element, the Petitioner must show that the illegality was a bargained-for
element of the plea agreement in order to set aside the conviction. Conversely, if the
illegality is not proven to be a bargained-for element, then only the sentence is void and the
habeas corpus court should remand the case to the convicting court for correction of
judgment. Id. at 128-129; but see McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001) (where
defendant bargains for and receives an illegal sentence, the result on habeas corpus review
is an option to resentence or to withdraw the guilty plea and recommence prosecution).
Thus, unless the Petitioner can prove that his guilty pleas and resulting convictions are
“infected with the illegality” caused by the absence of the community supervision condition
on the aggravated rape judgment, the only relief available is the correction of judgment upon
remand to the convicting court. Smith, 202 S.W.3d at 129.

        At the evidentiary hearing, the State conceded that the aggravated rape judgment was
void on its face because the trial court failed to impose community supervision for life as a
condition of release upon service of the sentence. However, the State argued that unless the
Petitioner could prove that the condition was a material element of the plea bargain, the only
appropriate relief would be correction of the judgment by the trial court. The Petitioner
testified that there was no discussion regarding the community supervision for life condition
during plea negotiations. The plea acceptance form does not include any reference to
community supervision.

       Our review of the record further reveals that the Petitioner was warned by counsel that
if he were successful in obtaining a withdrawal of the plea agreement, he could potentially
face the death penalty for the felony murder charge. The plea acceptance form also confirms
that the possible sentence the Petitioner faced for the felony murder charge included the
death penalty. The record indicates that the plea negotiations focused appropriately upon the
Petitioner’s avoidance of the death penalty and convictions for the additional offenses that
were dismissed, rather than the conditions of release from the aggravated rape sentence.
Furthermore, given that the sentence for the aggravated rape was ordered to be served
concurrently with the life without parole sentence, we deem the Petitioner’s argument that
the community supervision for life condition was a bargained-for element of the plea
agreement quite disingenuous. These considerations coupled with the Petitioner’s testimony
at the evidentiary hearing that there was no discussion of the community supervision
condition during plea negotiations lead us to conclude that neither the presence nor the
absence of the community supervision condition was a bargained-for element of this plea
agreement. Accordingly, the habeas corpus court correctly denied relief and remanded the
aggravated rape case to the trial court for correction of the judgment to include community
supervision for life.

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                                      CONCLUSION

        In consideration of the foregoing, the judgment of the habeas corpus court is affirmed
in all respects.


                                                   ___________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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