            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                        October 2006 Session


            ANTHONY KESHUN GOODS v. TONY PARKER, Warden

                          Appeal from the Circuit Court for Lake County
                            No. 03-CR-8494-R1 R. Lee Moore, Judge


                       No. W2006-00849-CCA-R3-CO - Filed July 24, 2007


The State appeals the habeas court’s grant of a petition for habeas corpus relief filed by the
Petitioner, Anthony Keshun Goods. The Petitioner alleged in his petition that his sentence was
illegal because he was sentenced to concurrent terms when the law required him to be sentenced to
consecutive terms. On appeal, the State contends the statutory requirement of consecutive sentences
does not apply to the Petitioner, his petition is not yet ripe, and the remedy set out by the habeas
court is improper. Finding no error in the judgment of the habeas court, we affirm the grant of
habeas corpus relief and remand the case to the Shelby County Criminal Court for further
proceedings not inconsistent with this opinion.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which THOMAS T. WOODALL, J.,
joined. DAVID G. HAYES, J., filed a dissenting opinion.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
Phillip Bivens, District Attorney General, for the Appellant, State of Tennessee.

Patrick R. McGill, Dyersburg, Tennessee, for the Appellee, Anthony Keshun Goods.


                                                OPINION
                                                 I. Facts

       This appeal by the State arises from the granting of a writ of habeas corpus by the Lake
County Circuit Court.1 The following facts have been presented in the record. On February 17,
1995, the Petitioner, age sixteen, was brought into juvenile court upon a petition alleging


        1
         This case originally came before this Court in 2004. See Anthony K. Goods v. Tony Parker, Warden, No.
W 2003-02914-CCA-R3-HC, 2004 W L 2309901 (Tenn. Crim. App., at Nashville, Oct. 13, 2004), perm. to app. denied
(Tenn. Sept. 6, 2005), abrogated by Summers v. State, 212 S.W .3d 251, 259 (Tenn. 2007).
delinquency by theft of a vehicle of more than $1000 in value. After a detention hearing, the
Petitioner was released to his mother. On March 29, 1995, the Petitioner committed acts that led to
convictions for especially aggravated robbery, second degree murder, and attempted second degree
murder. On April 10, 1995, the Petitioner, still sixteen years of age, was again brought into juvenile
court on petitions that he committed an especially aggravated robbery on March 29.2 Finally, on
May 10, 1995, the Petitioner’s case was transferred by Mittimus from the Shelby County Juvenile
Court to the Shelby County Criminal Court for the Petitioner to stand trial as an adult for theft of
property over $1000 and especially aggravated robbery.

       On June 7, 1996, the Petitioner pled guilty to second degree murder, attempted second degree
murder, especially aggravated robbery, and theft of property over $1000 in a “global” plea
arrangement. The Petitioner alleges that the plea agreement included the requirement that these
sentences run concurrently, as opposed to consecutively. The trial court ordered that the terms run
concurrently, and the Petitioner was incarcerated in Lake County.

        In 2003, the Petitioner filed a petition for habeas corpus relief, which was denied without a
hearing by the trial court. On appeal, this Court reversed the trial court’s decision and remanded for
the appointment of counsel and a hearing. Prior to the re-hearing at the trial level, on October 17,
2005, both parties stipulated that the Petitioner was out on bail when he committed the second
degree murder and attempted second degree murder, referencing to the period of time after the
Petitioner was released to his mother on February 17, 1995, but before the Petitioner returned to the
juvenile court on April 10, 1995. The trial court found that the Petitioner’s sentences were void
pursuant to Tennessee Rule of Criminal Procedure 32(c)(3), which mandates consecutive sentences
for “a felony where the defendant was released on bail and the defendant is convicted of both
offenses.”

         On November 8, 2005, the State filed a motion for reconsideration, claiming it should not
have stipulated to the fact that the Petitioner was out on bail when he was actually out on his own
recognizance when he was released by the juvenile court to his mother. The trial court considered
the motion and determined that the Petitioner’s release on his own, or his mother’s, recognizance
should be considered bail under the statute and that any crimes committed while a defendant was out
on his or her own recognizance would be treated as if the defendant was released on bail under Rule
32(c)(3). This ruling essentially made the contested stipulation moot, as the court agreed with the
stipulated point. The trial court determined that the Tennessee Supreme Court’s ruling in McLaney
v. Bell, 59 S.W.3d 90 (Tenn. 2001), required it to find the Petitioner’s sentence void. As such, the
trial court transferred the case back to Shelby County Criminal Court for further proceedings. It is
from this order that the State now appeals.

                                                  II. Analysis


        2
           There is no documentation in the record that would indicate the Petitioner was summoned to juvenile court
for the second degree murder and attempted second degree murder. It appears the Petitioner was charged with second
degree murder and attempted second degree murder after his transfer to Shelby County Criminal Court.

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         On appeal, the State contends the trial court erred in: (1) finding the Petitioner was out on
bail at the time of the subsequent offense; (2) finding the Petitioner was entitled to habeas corpus
relief when the portion of his uncontested sentence had yet to expire; and (3) ordering the case
remanded to address the void sentence and voidable conviction.

         The Petitioner claims: (1) the State stipulated to the fact that the Petitioner was out on bail
at the time of the subsequent offenses; (2) the trial court was correct in finding “bail” as used in Rule
32(c)(3) included “out on own recognizance;” (3) there is no portion of the sentence that is
uncontested; and (4) the remand was proper under current Tennessee law.

                                         A. The Stipulation

       The Petitioner argues the State stipulated to the fact that the Petitioner was out on bail at the
time of his subsequent offenses, and the State does not respond to this in its brief. The trial court
based its original opinion on the stipulated fact, but, in its motion for reconsideration, the State
argued that the Petitioner was out on his own recognizance at that time, which was different from
being on “bail.” In other words, the State argued that the word “bail” should not be interpreted to
include “out on own recognizance.”

        In State v. James M. Kennedy, this Court stated:

        A stipulation is an “agreement between counsel with respect to business before the
        court.” State v. Ford, 725 S.W.2d 689, 691 (Tenn. Crim. App. 1986), perm. to
        appeal denied, (Tenn. 1987). When made, it binds the parties to the agreed facts and
        must be “rigidly enforced” by the courts. State ex rel. Weldon v. Thomason, 221 S.W.
        491, 495 (Tenn. 1920). Before a stipulation is binding it must be clear from the
        record that both parties agreed to it. 73 Am. Jur. 2d Stipulations § 2 (1974). The
        terms of oral stipulations must be “definite and certain in order to render the proper
        basis for a judicial decision.” Id.

No. 02C01-9207-CC-00168, 1993 WL 102002, at *1 (Tenn. Crim. App., at Jackson, Apr. 7, 1993).
Further, in Thomason, which was cited by Kennedy, the Tennessee Supreme Court stated:

        But the meaning of language used in a statute from which the validity or invalidity
        of the act is to be determined is not the subject of agreement by parties or counsel,
        but is to be found by the courts. Parties cannot agree upon the unconstitutionality of
        a statute, nor by their stipulations determine for the courts the judicial question as to
        what the action or intent of the lawmaking body is. Manifestly, to uphold such
        agreements would permit litigants to nullify any enactment of the Legislature.

221 S.W. at 495.



                                                  -3-
        While normally whether one was out on bail or not would be a simple fact that could be
stipulated to, this case presents a different situation. The stipulation, although not understood as
such when the stipulation was made, was actually an interpretation of Rule 32(c)(3) – that “bail”
includes “out on own recognizance.” That type of stipulation, the effective legal interpretation of
the rule, is impermissible under Tennessee law. Thus, we give no weight to the stipulation. We will
discuss the merits of this issue below.

                                     B. Ripeness of Petitioner’s Petition

         The State contends that the Petitioner’s claim is not yet ripe because the part of his sentence
that is uncontested has not yet expired. The State argues that the first twelve years of the Petitioner’s
sentence are uncontested because he could have rightfully been sentenced to those twelve years
under his original theft crime. Thus, if the Petitioner wants to challenge his detainment, he must wait
until those twelve years have passed.3 Initially, we note that we agree with the Petitioner in his
assertion that he has contested all of his convictions and sentences. The sentences were pled
together, and we can find nothing in the record or briefs to support the State’s argument that the
Petitioner has merely contested part of his sentence.

        Taking that into account, we conclude the State is incorrect in its reliance on three Tennessee
Supreme Court cases. First, in State ex rel. Dickens v. Bomar, two petitioners petitioned for habeas
corpus relief from concurrent sentences in both Hickman and Dickson Counties. 381 S.W.2d 287,
289 (Tenn. 1964). The petitions attacked only the Hickman convictions. Id. The Tennessee
Supreme Court determined that, if the petitioners were validly held in Dickson County, they could
not attack a Hickman County detention on habeas corpus grounds. Id. Because the petitioners in
Bomar did not challenge both detentions, this case is inapplicable.

       In Ussery v. Avery, also cited by the State, a petitioner challenged one of his two counts of
armed robbery. 432 S.W.2d 656 (Tenn. 1968). The Court concluded that, until his first term of
incarceration expired, his habeas corpus petition was not ripe. Again, because the petitioner in
Ussery did not challenge all of his counts, Ussery is inapplicable to this case.

         Finally, the State argues Adams v. Russell requires a habeas petition to be ripe. 167 S.W.2d
5 (Tenn. 1942), overruled on other grounds by Franks v. State, 213 S.W.2d 105 (Tenn. 1948). In
Adams, the petitioner should have statutorily received a determinate sentence of over twenty years.
Id. at 6. Instead, the petitioner received a sentence of not less than twenty years and not greater than
thirty-six years. Id. While this was improper, the Court determined that the petitioner did not have
proper standing to proceed on a habeas corpus petition until twenty years had expired. Id. Again,

         3
          The State noted its claim that this issue is not yet ripe was, and is, also before the Tennessee Supreme Court.
See Smith v. Lewis, No. E2004-01800-CCA-R3-HC, 2005 W L 1269155 (Tenn. Crim. App., at Knoxville, May 27, 2005)
perm. app. granted (Tenn. Dec. 5, 2005); Charles G. Summers v. State, No. M2004-02806-CCA-R3-HC, 2005 W L
1950298 (Tenn. Crim. App., at Nashville, Aug. 12, 2005), rev’d on other grounds by Summers v. State, 212 S.W .3d 251,
257-58 (Tenn. 2007). Summers, as noted in footnote one, was recently decided, and the Tennessee Supreme Court
disagreed with the State’s mootness argument. Summers, 212 S.W .3d at 257-58.

                                                          -4-
we disagree with the State’s assertion that Adams makes this Petitioner’s claim not yet ripe.4 This
Petitioner alleges none of the four sentences are legal, and thus his detention is in no way legal or
legitimate.

         Thus, we conclude this case is ripe for habeas corpus review.

                              C. Whether The Petitioner Was Out On “Bail”

        Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief. Although the right is guaranteed in the Tennessee Constitution, the right is governed by
statute. T.C.A. § 29-21-101 (2003) et seq. The determination of whether habeas corpus relief should
be granted is a question of law and is accordingly given de novo review. Hart v. State, 21 S.W.3d
901, 903 (Tenn. 2000). Although there is no statutory time limit preventing a habeas corpus petition,
the grounds upon which relief can be granted are very narrow. Taylor v. State, 995 S.W.2d 78, 83
(Tenn. 1999). It is the burden of the petitioner 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). In other words, the very narrow grounds upon which a habeas corpus petition can be
based are as follows: (1) a claim there was a void judgment which was facially invalid because the
convicting court was without jurisdiction or authority to sentence the defendant; or (2) a claim the
defendant’s sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). In contrast,
a voidable judgment is “one that is facially valid and requires the introduction of proof beyond the
face of the record or judgment to establish its invalidity.” Taylor, 995 S.W.2d at 83; see State v.
Richie, 20 S.W.3d 624, 633 (Tenn. 2000).

        Per McLaney v. Bell, if one is sentenced concurrently when one should have statutorily been
sentenced consecutively, habeas relief should be granted. 59 S.W.3d 90, 94-95 (Tenn. 2001),
overruled in part on other grounds by Summers v. State, 212 S.W.3d 251, 262 (Tenn. 2007).
Pursuant to Tennessee Rule of Criminal Procedure 32(c)(3), sentences are to be run consecutively
for felonies “committed while the defendant was released on bail [if] the defendant is convicted of
both offenses.” See T.C.A. § 40-20-111(b) (2003). Thus, we must determine whether the Petitioner
was on “bail” when he was released as a juvenile, into his mother’s custody, after his appearance on
a charge of theft of property over $1000.

         “Bail” is defined in the Black’s Law Dictionary, in part, as follows:

         (1) A security such as cash or a bond; esp., security required by a court for the release
         of a prisoner who must appear at a future time.
         (2) The process by which a person is released from custody either on the undertaking

         4
          This Court also notes that the Tennessee Supreme Court’s recent line of cases on sentences that contravene
statutes may also cast some doubt on the legitimacy of the Adams decision. See Summers, 212 S.W.3d at 256 (“A
sentence imposed in direct contravention of a statute is void and illegal,” and “A trial court may correct a void and illegal
sentence at any time.”) (citing Stephenson v. Carlton, 28 S.W .2d 910, 911 (Tenn. 2000), and Moody v. State, 160 S.W .3d
512, 516 (Tenn. 2005)).

                                                            -5-
        of a surety or on his or her own recognizance.

Black’s Law Dictionary 150 (8th ed. 2004). “Recognizance” is defined as follows: “A bond or
obligation, made in court, by which a person promises to perform some act or observe some
condition, such as to appear when called, to pay a debt, or to keep the peace; . . . . Most commonly,
a recognizance takes the form of a bail bond that guarantees an unjailed criminal defendant’s return
for a court date.” Id. at 1299.

          The State directs our attention to the differences between the language used in Rule 32(c)(3)
and (d). In Rule 32(d), the drafters have made a distinction between “bail” and “out upon
recognizance.” Specifically, the section begins, “The setting of bail or release upon recognizance
. . . .” Tenn. R. Crim. P. 32(d). “[T]he usual rule of statutory construction [requires] giv[ing] effect,
if possible, to every clause and word of a statute.” Clark v. Arizona, — U.S. —, 126 S.Ct. 2709,
2723 n.24 (2006) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)) (quotations and citation
omitted); accord 2A N. Singer, Statutes and Statutory Construction § 46.07, pp. 194-205 (rev. 6th
ed. 2000) (“Where one section of a statute contains a particular provision, omission of the same
provision from a similar section is significant to show different legislative intent for [section two].”
(footnotes omitted)). This would logically require us to imply that when the drafters use the word
“bail” in section (c)(3), and “bail and out upon recognizance” in section (d), they specifically
intended to exclude “out upon recognizance” from the definition of “bail” in (c)(3). Otherwise, “out
upon recognizance” would be superfluous. See Hibbs v. Winn, 542 U.S. 88, 101 (2004) (reflecting
negatively on a statutory interpretation that causes words to be superfluous); Singer, § 46.06, at pp.
181-194 (“A statute should be construed so that effect is given to all its provisions, so that no part
will be inoperative or superfluous, void or insignificant . . . .” (footnotes omitted)).

        The State also argues that reading the term “bail” to include “out upon recognizance” would
be interpreting the statute against a defendant in a normal case. That is, at sentencing, it would be
to the defendant’s detriment to require consecutive sentences for crimes committed while he or she
was out on recognizance. This would go against the general rule to read statutes narrowly in favor
of defendants. State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993).

        First, the Petitioner responds that “out on recognizance” is actually a “recognizance bond,”
and there is no statute that excludes “recognizance bonds” from the general definition of “bail.”
Additionally, the Petitioner asserts that, under Tennessee case law, if a statute and a court rule are
in conflict, the statute takes precedent. See Martin v. Leer Corp., 90 S.W.3d 626, 630-32 (Tenn.
2002). The statute that lays the foundation for Rule 32(c)(3), Tennessee Code Annotated section 40-
20-111 (2003), does not make a distinction among types of bail. The statute simply says, “released
on bail.” T.C.A. § 40-20-111. The Petitioner claims that, because of this discrepancy, the statute
takes precedent over the court rule and no presumption of statutory construction applies.

        Additionally, the Petitioner claims that the Court should interpret “bail” as including “out on
own recognizance” based on public policy. The Tennessee Supreme Court stated in Gray v. State
that, “The object is to use consecutive sentencing, where appropriate, to protect society from those


                                                  -6-
who are unwilling to lead a productive life and resort to criminal activity in furtherance of their anti-
societal life style.” 538 S.W.2d 391, 393 (Tenn. 1976).

         We conclude “bail” fairly encompasses the situation at hand. Because “recognizance” is a
form of a “bond,” and “bail” is “[a] security such as a . . . bond,” a “recognizance bond” is a bail
security. The security was the Petitioner’s mother’s guarantee. Additionally, in our view, when the
Legislature passed the statute that corresponds with Rule 32(c)(3), it intended that individuals who
were out on their own recognizance, in addition to those who had to present a cash surety, would be
required to serve consecutive sentences should they commit another crime while out of jail awaiting
a disposition of their prior charge(s). This corresponds with the objectives noted in Gray. For the
purposes of consecutive sentencing pursuant to Rule 32(c)(3), this Court can find no logical reason
to distinguish between those who are allowed out of jail based on their own promise, their mother’s
promise, $1000 bail, or $1,000,000 bail. The determination of how much bail is required is generally
based on the minimum amount required to secure the defendant’s presence in court. See 8A Am.
Jur. Bail and Recognizance § 1 (2006). Whether one will be required to serve concurrent or
consecutive sentences should not hinge on a trial court’s initial impression of whether a defendant
will likely return to court to face charges.

        As such, the Petitioner was out on bail when he committed the acts that lead to the charges
for aggravated robbery, attempted second degree murder, and second degree murder. The law
requires the Petitioner serve any sentences consecutively for such a situation. The State is not
entitled to relief. Accordingly, the judgment of the habeas court is affirmed, and the case is
remanded to the Shelby County Criminal Court for further proceedings not inconsistent with this
opinion. See McLaney, 59 S.W.3d at 94-95.

                                           III. Conclusion

        In accordance with the foregoing reasoning and authorities, we affirm the judgment of the
trial court.


                                                             ________________________________
                                                             ROBERT W. WEDEMEYER, JUDGE




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