                                                                                       06/06/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs May 10, 2017

          DAVID HEARING v. CHERRY LINDAMOOD, WARDEN

                  Appeal from the Circuit Court for Wayne County
                        No. 15894 Robert L. Jones, Judge
                     ___________________________________

                           No. M2016-02114-CCA-R3-HC
                       ___________________________________

The Petitioner, David Hearing, filed a petition for a writ of habeas corpus, alleging that
his concurrent sentences of life for his two convictions of felony murder were illegal and
void. The habeas corpus court dismissed the petition upon finding that the issue had been
raised and addressed in prior pleadings. On appeal, the Petitioner challenges the habeas
corpus court’s ruling. Upon review, we affirm the judgment of the habeas corpus court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN
and ROBERT H. MONTGOMERY, JR., JJ., joined.

David Wayne Hearing, Clifton, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; and Brent A. Cooper, District Attorney General, for the Appellee, State of
Tennessee.

                                       OPINION

                                I. Factual Background

       In 2005, the Petitioner pled guilty to the first degree felony murders of Ance
“Pete” Pratt and his wife, Rebecca Pratt during the aggravated burglary of the Pratts’
home. See David Hearing v. State, No. E2009-02430-CCA-R3-PC, 2010 WL 3837535,
at *1 (Tenn. Crim. App. at Knoxville, Oct. 4, 2010). The Petitioner’s plea agreement
provided that he would receive concurrent sentences of “life with [the] possibility of
parole.” At the guilty plea hearing, the trial court explained that the Petitioner would
have to serve “at least a fifty-one year . . . term of imprisonment before [he could] be
considered for parole[.]” The Petitioner said that he understood the terms and accepted
the plea agreement.

        Since his guilty pleas, the Petitioner has pursued numerous avenues of relief.
First, he filed a motion to withdraw his pleas, which the trial court denied, and this court
affirmed the denial on appeal. See David Wayne Hearing v. State, No. E2007-00778-
CCA-R3-PC, 2008 WL 481781, at *1 (Tenn. Crim. App. at Knoxville, Feb. 22, 2008);
David Wayne Hearing v. State, No. E2006-00362-CCA-R3-PC, 2006 WL 3813625, at *1
(Tenn. Crim. App. at Knoxville, Dec. 28, 2006). Next, the Petitioner pursued post-
conviction relief, arguing in part that his trial counsel was ineffective by misrepresenting
the terms of the sentences; the post-conviction court denied the petition, and this court
affirmed the denial on appeal. Hearing, 2010 WL 3837535, at *1. Subsequently, the
Petitioner filed a petition for habeas corpus relief, alleging that the judgments of
conviction were void because each judgment provided that the Petitioner had a life
sentence but also provided that the sentence was fifty-one years. David Hearing v. David
Mills, Warden, No. W2011-01226-CCA-R3-PC, 2012 WL 12931580, at *1 (Tenn. Crim.
App. at Jackson, Feb. 28, 2012). The habeas corpus court held that the Petitioner’s
sentences were not illegal and void and denied the petition, and this court affirmed the
decision on appeal. Id.

       Thereafter, the Petitioner filed an untimely petition for a writ of error coram nobis,
see David Hearing v. State, No. E2013-00640-CCA-R3-ECN, 2014 WL 2547780, at *1
(Tenn. Crim. App. at Knoxville, June 3, 2014), followed by two successive petitions to
correct his “illegal sentence[s]” pursuant to Tennessee Rule of Criminal Procedure 36.1,
see State v. David Wayne Hearing, No. E2015-00173-CCA-R3-CD, 2015 WL 4710393,
at *1 (Tenn. Crim. App. at Knoxville, Aug. 7, 2015), perm. to appeal denied, (Tenn.,
Dec. 10, 2015); State v. David Wayne Hearing, No. E2014-01908-CCA-R3-CD, 2015
WL 2128600, at *1 (Tenn. Crim. App. at Knoxville, May 6, 2015), perm. to appeal
denied, (Tenn., Oct. 16, 2015) (designated not for citation). In each petition to correct the
sentences, the Petitioner contended that his sentences were illegal because he negotiated
sentences of life with the possibility of parole but his judgments of conviction reflected
that he received sentences of life. The trial court held that the Petitioner’s life sentences
were not void and illegal, and this court upheld the trial court’s rulings. Hearing, 2015
WL 2128600, at *3.

       Afterwards, the Petitioner filed the instant petition for a writ of habeas corpus, in
which he again challenged his sentences. The Petitioner argued that the trial court did not
have the authority to sentence him to life with the possibility of parole for his felony
murder convictions; therefore, his judgments were void. The Petitioner further argued
that the sentences of life with the possibility of parole were material elements of his
guilty pleas and that he was therefore entitled to relief. The State filed a motion to
dismiss the petition, contending that the Petitioner’s sentences were not illegal and void.
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The habeas corpus court granted the State’s motion, finding that “the Petitioner’s two
concurrent life sentences are not illegal as previously determined by two courts of
competent jurisdiction and as reflected in the judgments[.]” On appeal, the Petitioner
challenges the habeas corpus court’s ruling.

                                       II. Analysis

       Initially, we note that the determination of whether to grant habeas corpus relief is
a question of law. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we
will review the trial court’s findings de novo without a presumption of correctness. Id.
Moreover, it is the petitioner’s burden to demonstrate, by a preponderance of the
evidence, “that the sentence is void or that the confinement is illegal.” Wyatt v. State, 24
S.W.3d 319, 322 (Tenn. 2000).

       Article I, section 15 of the Tennessee Constitution guarantees an accused the right
to seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999).
However, “[s]uch relief is available only when it appears from the face of the judgment
or the record of the proceedings that a trial court was without jurisdiction to sentence a
defendant or that a defendant’s sentence of imprisonment or other restraint has expired.”
Wyatt, 24 S.W.3d at 322; see also Tenn. Code Ann. § 29-21-101. In other words, habeas
corpus relief may be sought only when the judgment is void, not merely voidable.
Taylor, 995 S.W.2d at 83. “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.’ We have recognized that a sentence
imposed in direct contravention of a statute, for example, is void and illegal.”
Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (quoting Taylor, 995 S.W.2d at
83).

       The Petitioner argues that the habeas corpus court erred by holding that the issue
regarding the validity of his sentences had been determined previously, arguing that this
court had decided his various appeals on inconsistent bases. This court has repeatedly
and consistently held that the Petitioner’s plea agreement provided for a life sentence,
which meant that he would be required to serve a minimum of fifty-one years in
confinement before becoming eligible for release. See Hearing, 2015 WL 2128600, at
*1-2; Hearing, 2012 WL 12931580, at *1-2; Hearing, 2008 WL 481781, at *2-3. This
court has explained that

              “the phrase ‘life with parole’ is inaccurate because a
              defendant sentenced to life is entitled ‘to be released, as
              opposed to being paroled, after serving 100 percent of sixty
              years less any eligible credits so long as they do not operate
              to reduce the sentence by more than 15 percent, or nine
                                           -3-
             years,’ see [Kermit Penley v. State], No. E2003-00129-CCA-
             R3-PC, [2004 WL 2439287, at *3] (Tenn. Crim. App.,
             Knoxville, Nov. 1, 2004)[. Nevertheless, the] use of the term
             [does] not render the petitioner’s judgment void.”

Hearing, 2015 WL 2128600, at *3 (quoting Christopher A. Williams v. State, No.
W2013-00555-CCA-R3-HC, 2013 WL 5493568, at *2 (Tenn. Crim. App. at Jackson,
Sept. 30, 2013)). We again conclude that the habeas corpus court correctly determined
that the Petitioner’s life sentences are not illegal, that the issue has been determined
previously, and that the Petitioner is not entitled to habeas corpus relief. See State v.
Oscar C. Wells, No. W2016-00170-CCA-R3-CD, 2016 WL 7654948, at *2 (Tenn. Crim.
App. at Jackson, Sept. 26, 2016); State v. Jason Martindill, No. W2015-00207-CCA-R3-
CD, 2015 WL 6600635, at *3 (Tenn. Crim. App. at Jackson, Oct. 30, 2015), perm. to
appeal denied, (Tenn., Mar. 23, 2016); State v. Robert Guerrero, No. M2014-01669-
CCA-R3-CD, 2015 WL 2208546, at *2-3 (Tenn. Crim. App. at Nashville, May 11,
2015), perm. to appeal denied, (Tenn., Sept. 17, 2015).

                                    III. Conclusion

       In sum, we conclude that the habeas corpus court did not err by dismissing the
petition for habeas corpus relief. Thus, the judgment of the habeas corpus court is
affirmed.

                                                _________________________________
                                                NORMA MCGEE OGLE, JUDGE




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