        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs June 29, 2010 at Knoxville

                     JAMES HALL v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                   No. 2006-B-1005 J. Randall Wyatt, Jr., Judge




                No. M2009-00652-CCA-R3-HC - Filed October 29, 2010



The Petitioner, James Hall, appeals as of right from the Davidson County Criminal Court’s
summary dismissal of his petition for a writ of habeas corpus challenging his sentence for
his conviction of possession with intent to distribute 0.5 grams of a schedule II controlled
substance. 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 J OSEPH M. T IPTON,
P.J., and N ORMA M CG EE O GLE, J., joined.

James Hall, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Clarence E. Lutz, Assistant
Attorney General.

                                          OPINION

        On December 20, 2005, the Petitioner was indicted for possession with intent to sell
or deliver 0.5 grams or more of a schedule II controlled substance, a Class B felony. On June
21, 2006, the Petitioner pled guilty to possession with intent to distribute less than 0.5 grams
of a schedule II controlled substance, a Class C felony. As reflected in the plea agreement
documents contained in the record on appeal, the Petitioner agreed to plead guilty in
exchange for a conviction of lesser felony; a four-year, Range I sentence; and concurrent
sentencing. His sentence for the possession conviction, according to the plea agreement, was
to be served concurrently with a “current [Tennessee Department of Correction] sentence out
of Division I.” However, the judgment in the Petitioner’s case reflects that the Petitioner was
ordered to serve the sentence for the possession conviction consecutively to a parole violation
conviction. It is unclear from the record whether the parole violation conviction is the same
conviction that was referenced in the plea agreement documents. The Petitioner did not
appeal his sentence, file a petition to withdraw his guilty plea, or seek post-conviction relief.
On November 14, 2008, the Petitioner filed a petition for writ of habeas corpus in the
Davidson County Criminal Court. However, at that time, he was incarcerated in the Turney
Central Industrial Prison and Farm in Hickman County, Tennessee.

        In his petition for writ of habeas corpus, the Petitioner challenged the legality of his
sentence and the voluntariness of his guilty plea. The Petitioner alleged that the Davidson
County Criminal Court was the “most convenient” forum in which to file his petition. The
Petitioner, citing State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978), also noted that the
trial judge in Davidson County was the judge that sentenced the Petitioner and stated that
“due to the illegal sentence imposed, the trial judge may correct an illegal sentence, as
opposed to a merely erroneous sentence at any time even if it has become final.” The habeas
corpus court summarily dismissed the petition for failure to file the petition in the county of
incarceration, Hickman County. The habeas court noted that the Petitioner did not “put forth
sufficient reason why the courts of Hickman County should not hear th[e] petition.”

                                          ANALYSIS

       From our review of the petition, we discern that the Petitioner contends that the
sentence imposed in this case is contrary to his guilty plea agreement with the state, thereby
rendering his plea involuntary. The Petitioner also contends that since the bargained for
sentence violates Rule 32 of the Tennessee Rules of Criminal Procedure and therefore cannot
be legally imposed, he is entitled to withdraw his guilty plea. The State does not respond to
the substance of the Petitioner’s allegations; instead, the State responds that the Petitioner’s
allegations were not verified by affidavit and that the unverified allegations contained in the
petition do not even specifically address the Petitioner’s alleged illegal restraint under the
2006 judgment. The State further responds that the petition does not contain any allegations
in support of the Petitioner’s conclusive assertion that the Davidson County Criminal Court
was the most convenient forum in which to file the petition.

        “[I]n 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


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because the court did not have the statutory authority to render such judgment.” 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). The determination of whether to grant habeas corpus relief is a matter of law;
therefore, we will review the habeas corpus court’s finding de novo without a presumption
of correctness. Smith v. Lewis, 202 S.W.3d 124, 127 (Tenn. 2006).

        Procedurally, we note that the failure to file a petition for a writ of habeas corpus in
the county of incarceration, absent a sufficient reason for not doing so, is a proper basis for
the dismissal of the petition. Tenn. Code Ann. § 29-21-105. “However, if a petition does
state a reason explaining why it was filed in a court other than the one nearest the petitioner,
the petition may be dismissed pursuant to this section only if the stated reason is
insufficient.” Davis v. State, 261 S.W.3d 16, 21 (Tenn. Crim. App. 2008). In Davis, the
court concluded that “the fact that the convicting court possesses relevant records and retains
the authority to correct an illegal sentence at anytime is a sufficient reason under Tennessee
Code Annotated section 29-21-105 for the petitioner to file in the convicting court rather than
the court closest in point of distance.” Id. at 22. Here, the Petitioner attached the Davis
opinion and asserted that the Davidson County Criminal Court was the convicting court, that
the convicting court had all of the necessary records pertaining to the challenged sentence,
and that the convicting court can correct an illegal sentence. Accordingly, we conclude that
the Petitioner provided a sufficient reason to file his documents in the convicting court, as
opposed to the court in the county of his incarceration, and that the habeas court erred in
summarily dismissing his petition on this ground. However, this conclusion does not end our
inquiry.

        We note that concurrent sentencing in the Petitioner’s case may not have been
available because the judgment reflects that the Petitioner was in violation of his parole when
he pled to the instant offense. See Tenn. R. Crim. P. 32(c). We agree with the Petitioner that
“when a defendant bargains for and receives an illegal sentence, the defendant will have the
option of resentencing on the original plea or withdrawal of the plea and recommendation
of the prosecution.” Smith v. Lewis, 202 S.W.3d 124, 129 (Tenn. 2006). We also agree with
the Petitioner that “[a] general rule has developed in the law that where a concurrent sentence
will not be imposed as promised, or the sentence bargained for is otherwise illegal, the
defendant is entitled to withdraw the plea.” McLaney v. Bell, 59 S.W.3d 90, 95 (Tenn.
2001), overruled on other grounds by Summers v. State, 212 S.W.3d 251 (Tenn. 2007).
However, we recognize that “[i]n the case of an illegal sentence claim based on facts not
apparent from the face of the judgment, an adequate record for summary review must include

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pertinent documents to support those factual assertions.” Summers, 212 S.W.3d at 261. In
the absence of supporting documentation, summary dismissal is appropriate. Id.

        Although the Petitioner makes a compelling legal argument, the record before us is
inadequate. The judgment in his case reflects that he was ordered to serve the sentence in
his case consecutively to another conviction. The judgment and the plea documents do not
reflect whether the conviction noted in the judgment form is the same as the conviction noted
in the plea agreement. Therefore, the record before us is insufficient to support the
Petitioner’s assertion that he did not receive the plea bargain that he was promised and that
he bargained for. Under these circumstances, we conclude that summary dismissal was
appropriate.

       Additionally, we note, as the State contended, that the petition was not verified by
affidavit. Tennessee Code Annotated section 29-21-107(a) provides that the “[a]pplication
for the writ shall be made by petition, signed either by the party for whose benefit it is
intended, or some person on the petitioner’s behalf, and verified by affidavit.” While the
Petitioner signed his petition, he did not verify the petition by affidavit. Summary dismissal
would have been supported on this ground. See Summers, 212 S.W.3d at 260 (“A trial court
properly may choose to summarily dismiss a petition for failing to comply with the statutory
procedural requirements.”). We also note that the State’s contention that the Petitioner failed
to specifically address his alleged illegal restraint under the 2006 judgment is incorrect. The
Petitioner notes, on page three of his petition, that he is “presently incarcerated at Turney
Center Industrial Prison in the [Tennessee Department of Correction located] in Hickman
County, [Tennessee].”

                                        CONCLUSION

       The habeas corpus court erred in summarily dismissing the petition because the
Petitioner offered sufficient justification for filing his petition for writ of habeas corpus in
the convicting court instead of in the court in the county of incarceration. However,
summary dismissal was appropriate because the Petitioner failed to submit sufficient
documentation in support of his petition for writ of habeas corpus and because he did not
verify his allegations by affidavit. Accordingly, we affirm the habeas corpus court’s
summary dismissal of the petition.


                                                    ___________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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