         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs May 4, 2004

              ANTHONY K. GOODS v. TONY PARKER, WARDEN

                        Appeal from the Circuit Court for Lake County
                         No. 03-CR-8494      R. Lee Moore, Jr., Judge



                   No. W2003-02914-CCA-R3-HC - Filed October 13, 2004


The petitioner, Anthony K. Goods, appeals the Lake County Circuit Court’s dismissal of his petition
for habeas corpus relief. We affirm in part and reverse in part.

    Tenn. R. App. P. 3; Judgment of the Circuit Court is Reversed and Case Remanded.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JERRY L. SMITH , JJ., joined.

Anthony K. Goods, Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; and Helena Walton Yarbrough, Assistant Attorney
General, Nashville, Tennessee, for the Appellee, State of Tennessee.

                                             OPINION

                On November 3, 2003, the petitioner filed a petition for habeas corpus relief attacking
his 1996 Shelby County Criminal Court convictions of especially aggravated robbery, second-degree
murder, theft, and attempt to commit second-degree murder. All convictions were the results of
guilty pleas accepted on June 6, 1996. The petition alleged that the plea agreement called for
concurrent sentences of 45 years for especially aggravated robbery, 55 years for second-degree
murder, 12 years for theft, and 30 years for attempted second-degree murder. The petitioner was
designated a persistent offender. The petition claimed that, due to incompleteness, the underlying
conviction judgments were void. Further, the petition claimed that the trial court exceeded its
jurisdiction by imposing concurrent, as opposed to mandatory consecutive sentences.

                 The petitioner attached copies of his conviction judgments to his petition. They
reflect that the petitioner pleaded guilty to each charge, but in none of the judgments did the trial
court mark the box to indicate that the petitioner “is found . . . guilty.” On the other hand, each
judgment recited the charge by name, proscriptive Code section, and class and date of offense. Each
sentence was fully described on the judgment form. Below the sentencing information on each
judgment form, except for the attempted second-degree murder judgment, the trial court marked the
box to indicate: “The Defendant having been found guilty is rendered infamous . . . .” The trial judge
signed and entered the judgments.

               The court below denied habeas corpus relief, and the petitioner appeals that ruling.
The main thrust of the petitioner’s claims on appeal is that the court below erred in denying habeas
corpus relief and in any event erred in dismissing the petition without the appointment of counsel
and a hearing.

                The legal issues raised in habeas corpus hearings are questions of law, and our review
of questions of law is de novo. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000) (“[W]hether to grant
the petition [for habeas corpus relief] is a question of law that we review de novo.”); State v. Hill,
954 S.W.2d 725, 727 (Tenn. 1997) (question of law reviewed on appeal de novo).

                Habeas corpus relief is available only when the aggrieved party’s conviction is void
or the sentence has expired. See Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). The petitioner
in the present case makes no allegation that his sentences have expired; he only claims that his
sentences, and hence his conviction judgments, are void.

                 A void conviction is one which strikes at the jurisdictional integrity of the trial court.
 Id.; see State ex rel. Anglin v. Mitchell, 575 S.W.2d 284, 287 (Tenn. 1979); Passarella v. State, 891
S.W.2d 619, 627 (Tenn. Crim. App. 1994). Because in this case the trial court apparently had
jurisdiction over the actus reus, the subject matter, and the person of the petitioner, the petitioner’s
jurisdictional issue is limited to the claim that the court was without authority to enter the judgment.
See Anglin, 575 S.W.2d at 287 (“‘Jurisdiction’ in the sense here used, is not limited to jurisdiction
of the person or of the subject matter but also includes lawful authority of the court to render the
particular order or judgment whereby the petitioner has been imprisoned.”); see also Archer, 851
S.W.2d at 164; Passarella, 891 S.W.2d at 627.

                 First, we examine the petitioner’s claim that the judgments are void because they fail
to set forth findings of guilty as required by Tennessee Rule of Criminal Procedure 32(e). See Tenn.
R. Crim. P. 32(e) (“A judgment of conviction shall set forth the plea, the verdict or findings, and the
adjudication and sentence.”); see also Tenn. Code Ann. § 40-35-209(e) (2003) (requiring district
attorney general to complete the judgment form, including an indication of the “type of offense for
which the defendant was charged and convicted”).

                This court has said, “The information which is required to be included in the
judgment form is standard[,] and it is mandatory that each judgment form contain this information.”
State v. Harry Mark Hurley, No. 233, slip op. at 5 (Tenn. Crim. App., Knoxville, Aug. 3, 1988),
perm. app. denied (Tenn. 1988). This statement, however, is of dubious import because, in Harry
Mark Hurley, this court on direct appeal, after noting the trial court’s failure to express in the
judgment a finding of guilty, said that the “judgment of the trial court is affirmed on the merits but
not as to its form.” Id., slip op. at 6. The court remanded the case to the trial court for the


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amendment of the existing judgment. Id. Because the Harry Mark Hurley court was adjudicating
a direct appeal as opposed to a collateral attack upon the conviction judgment, it is difficult to tell
whether the court viewed the judgment as void, merely voidable, or simply benign clerical error.

                 In our view, the judgments in the present case are merely voidable. Each judgment
form taken as a whole conveys complete information about the conviction offense, including the
guilty plea and the details of the sentence. Although only three of the judgments acknowledge that
the defendant is rendered infamous based upon his “having been found guilty,” we do not conclude
that the failure to include this statement on the attempt to commit second-degree murder judgment
so distinguishes it from the others as to render it void. Given the facts of this case, we conclude that
the judgments substantially declare the designated convictions even though they may be voidable
because the court did not fill in the blanks for specifically expressing a finding of guilty. A defect
in the conviction proceedings which renders the judgment merely voidable is not subject to collateral
attack. See Archer, 851 S.W.2d at 163. Thus, we conclude that the trial court properly dismissed
the habeas corpus claim that the judgments were void due to their incompleteness.

                We now address the second claim that the four sentences imposed on June 6, 1996
are void. The petitioner claims that the trial court was required to run the four sentences
consecutively, based upon the especially aggravated robbery, second-degree murder, and attempted
second-degree murder occurring while the petitioner was on bail on the theft charge, which resulted
in the fourth June 6, 1996 conviction. The petitioner claims that imposing concurrent sentences
rendered them void. The petitioner relies upon Tennessee Code Annotated section 40-20-111(b),
which provides:

               [When] a defendant commits a felony while such defendant was
               released on bail . . . , and the defendant is convicted of both offenses,
               the trial judge shall not have discretion as to whether the sentences
               shall run concurrently . . . but shall order that such sentences be
               served cumulatively.

Tenn. Code Ann. § 40-20-111(b) (2003); see also Tenn. R. Crim. P. 32(c)(3) (requiring consecutive
service of a sentence “for a felony where the defendant was released on bail” with the sentence for
the pre-bail offense, when “the defendant is convicted of both offenses”).

       To be sure, the invalidity of the sentence itself, as well as the broader invalidity of the
conviction, results in a void judgment and is a sufficient basis for habeas corpus relief. See
Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (a void sentence, as well as a void
conviction, may result in a void judgment and be the subject of a habeas corpus proceeding).

               To support a claim for habeas corpus relief, however, the illegality of a sentence must
be egregious to the point of voidness. Cox v. State, 53 S.W.3d 287, 292 (Tenn. Crim. App. 2001).
On the other hand, in McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001), our supreme court, in addressing
convictions that expressed inapposite sentencing terms, said that an “illegal” sentence equates to a


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“jurisdictional defect.” Id. at 92. The court stressed that when “the face of the judgment or the
record of the underlying proceedings shows that the . . . sentence is illegal, such sentence creates a
void judgment for which habeas corpus relief is available.” Id. at 91 (emphasis added). Thus, an
illegal, jurisdictionally defective sentence is one that is “in direct contravention” of the sentencing
act. Id. at 94. Such a sentence is void when it appears on the face of the record of the underlying
proceeding and is justiciable in a habeas corpus proceeding.

                First, we discern no jurisdictional flaw in the trial court’s imposing the especially
aggravated robbery, second-degree murder, and attempted second-degree murder sentences to run
concurrently to one another. Code section 40-20-111(b)’s mandate of consecutive sentencing
addresses the alignment between the sentence in the pre-bail offense and the aggregate sentence in
the offenses that occurred while the offender was on bail. Nothing in the statute requires consecutive
service among the sentences of the post-bail offenses.

                 That said, however, we discern that the conviction court may have exceeded its
jurisdiction in imposing the sentence in the theft conviction – the pre-bail offense – to run
concurrently with the sentences for the three post-bail offenses. For this reason, the habeas corpus
court erred in failing to appoint counsel to represent the petitioner and in failing to conduct a habeas
corpus hearing.

                This result is dictated by McLaney, in which the habeas corpus petitioner complained
that his concurrent alignment of a sentence for a pre-bail offense with sentences for post-bail
offenses was void. See McLaney, 59 S.W. 3d at 92. Apparently, McLaney bargained for and
obtained a global plea agreement that embraced sentences for aggravated rape (the pre-bail offense)
and for rape and burglary (the post-bail offenses). See State v. Jackie W. McLaney, No. 74 (Tenn.
Crim. App., Knoxville, Mar. 31, 1988) (on McLaney’s appeal from denial of post-conviction relief,
appellate court reveals that, even though the guilty plea to aggravated rape was entered two days
before the guilty pleas to rape and burglary, the various pleas were part and parcel of one plea
agreement). In McLaney, the supreme court said that, “if the facts [were] as alleged, the trial court
imposed a sentence in direct contravention of the sentencing act . . . [and] this would create an illegal
sentence.” McLaney, 59 S.W.3d at 93. Despite McLaney’s habeas corpus allegations of such a void
sentence, the habeas corpus court declined to appoint counsel or to afford him a hearing. The
supreme court reversed and required the habeas corpus court to determine whether “the record of
the underlying proceedings clearly showed that the latter rape and burglary offenses were committed
while McLaney was on bail.” Id. at 94. Furthermore, the McLaney court directed that should the
habeas corpus court find that to be the case – with the result that the sentences in the latter cases
would be void – “on remand to the original convicting trial court, a guilty plea may be withdrawn.”
Id. at 95. The court reasoned that because “McLaney entered into his guilty plea in exchange for a
concurrent sentence which was, in actuality, illegal, . . . [he] is entitled to withdraw the plea.” Id.
(citations omitted).

            In pertinent particulars, the current petitioner’s case, as alleged, tracks that of
McLaney. He alleged that he entered into a global plea agreement – one that embraced both the


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bailed offense and the post-bail offenses. The agreement specified that the sentence for the alleged
bailed offense was imposed to run concurrently with each of the sentences for the alleged post-bail
sentences. If true, the petitioner’s sentences would directly contravene Tennessee Code Annotated
section 40-20-111(b), resulting in a void sentence pursuant to McLaney. McLaney requires that the
petitioner have the opportunity, through the appointment of counsel and an evidentiary hearing, to
establish the claims he alleges in his petition.

               Accordingly, the order of the habeas corpus court is reversed and the case is
remanded. The court shall appoint counsel to represent the petitioner, afford the petitioner a
hearing, and take any other actions as may be warranted by the principles enunciated in McLaney.




                                                      ___________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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