         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 16, 2005

                    JASON E. MIZE v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Davidson County
                      No. 03C-531        Hamilton V. Gaydon, Judge




              No. M2004-00737-CCA-R3-HC -             Filed December 16, 2005


The Petitioner, Jason Mize, pled guilty in the Union County Criminal Court to aggravated robbery.
In accordance with the plea agreement, the Petitioner was sentenced to an eight year sentence, to run
concurrently with “Knox and Anderson County cases.” Subsequently, the Petitioner pled guilty to
two aggravated robbery charges in the Anderson County Criminal Court and received concurrent
eight year sentences on each count. The Anderson County judgment contains the notation, “This
sentence may run concurrent with defendant’s Knox County sentence if legally possible.” The
Petitioner filed a petition for a writ of habeas corpus alleging that the Union County conviction is
illegal and void because at the time he entered his guilty plea in Union County, he had not yet been
convicted in the “Knox and Anderson cases.” The Petitioner filed an additional petition for a writ
of habeas corpus alleging that the Anderson County judgments of conviction are illegal and void
because it is not “legally possible” for the Anderson County sentences to be run concurrently with
the Knox County sentence. Both petitions were assigned the same docket number in the Morgan
County Criminal Court and subsequently were transferred to the Davidson County Circuit Court,
where they were assigned the same Davidson County docket number and ultimately summarily
dismissed. On appeal, the Petitioner contends that he is entitled to habeas corpus relief because his
sentences are illegal and the judgments from the Union County Court and the Anderson County
Court are void on their faces. After reviewing the record and relevant authorities, we affirm the
judgment of the trial court.

      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 JOSEPH M. TIPTON and
THOMAS T. WOODALL, JJ., joined.

Jason E. Mize, Pro se.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;

                                                -1-
Victor S. (Torry) Johnson III, District Attorney General, John H. Bledsoe, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION
                                       I. Procedural History

        On February 7, 1997, the Petitioner pled guilty to aggravated robbery in Union County and
received an eight-year sentence. The judgment states that this sentence was to be served concurrently
with “Knox and Anderson County cases.” In Anderson County on August 22, 1997, the Petitioner
pled guilty to two counts of aggravated robbery and received concurrent eight-year sentences. The
Anderson County judgment form contains the notation, “This sentence may run concurrent with
defendant’s Knox County sentence if legally possible.” The Petitioner filed in the Morgan County
Criminal Court two petitions for the writ of habeas corpus to challenge his convictions. He filed a
petition for the writ of habeas corpus to challenge the aggravated robbery conviction from the Union
County Criminal Court under docket number 8928. He filed a petition for the writ of habeas corpus
to challenge his two 1997 aggravated robbery convictions from the Anderson County Criminal Court
under the same docket number, 8928. Subsequently, the trial court in Morgan County transferred
“the petition for writ of habeas corpus filed herein,” under docket number 8928, to the Davidson
County Circuit Court. The trial court in Morgan County did not mention both petitions, but since
both petitions were filed on the same day under the same docket number, it appears that the Morgan
County Criminal Court intended that the petitions be consolidated. The Davidson County Circuit
Court docketed the case as number 03C531. Upon motion of t he State, the Davidson County Circuit
Court ultimately summarily dismissed the petition.

                                            II. Analysis

        On appeal, the Petitioner argues that he is entitled to habeas corpus relief on his Union
County aggravated robbery conviction, for which he received a sentence of eight years to run
concurrent with his “Knox and Anderson County cases.” The Petitioner alleges that the Union
County conviction is illegal and void because at the time he entered his guilty plea in Union County,
he had not yet been convicted in the “Knox and Anderson County cases.” He likewise argues that
he is entitled to habeas corpus relief on his two aggravated robbery convictions from the Anderson
County Criminal Court. The Petitioner alleges that the Anderson County convictions are illegal and
void because although the judgment contains the notation “This sentence may run concurrent with
the defendant’s Knox County sentence if legally possible,” it is not legally possible for the Anderson
County sentences to be run concurrently with the Knox County sentence. The Petitioner states that
the judgment from Knox County was not imposed until June 3, 1998; however, the record does not
indicate what the conviction was for, the length of sentence, or manner of service. The Petitioner
contends that his Union County and Anderson County sentences are illegal on their faces because
they purport to impose sentences that are concurrent with sentences from other convictions that had
not yet been imposed. He argues that his pleas for the aggravated robbery charges from Union
County and from Anderson County were involuntary because they were made in exchange for illegal
sentences. The Petitioner alleges that the judgment for his eight-year sentence from Union County


                                                 -2-
is void on its face because it is not “legally possible” to run this sentence concurrently with his
sentences from Knox County and Anderson County. The Petitioner also contends that his Anderson
County sentence is illegal on its face because the judgment states that the sentence may run
concurrently with the Petitioner’s Knox County sentence if “legally possible.” Finally, the
Petitioner alleges that he would not have pled guilty to the charges from Union County or Anderson
County had he known this, and, therefore, his pleas were involuntary. The State argues that the
judgment of the trial court should be affirmed because none of the Petitioner’s judgments on their
faces or the records of the underlying proceedings establish that the Petitioner is presently confined
by virtue of a void judgment or an expired sentence. We agree with the State.

         Article I, section 15 of the Tennessee Constitution guarantees its citizens the right to seek
habeas corpus relief. Tenn. Const. art. I, § 15. The grounds upon which our law provides relief are
very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). “Unlike the post-conviction petition,
the purpose of a habeas corpus petition is to contest void and not merely voidable judgments.” Potts
v. State, 833 S.W.2d 60, 62 (Tenn. 1992). Therefore, in order to state a cognizable claim for habeas
corpus relief, the petition must contest a void judgment. Id. “A void judgment is one in which the
judgment is facially invalid because the court did not have the statutory authority to render such
judgment . . . [a] voidable judgment is one which is facially valid and requires proof beyond the face
of the record or judgment to demonstrate its voidableness.” Dykes v. Compton, 978 S.W.2d 528,
529 (Tenn. 1998) (citing Archer v. State, 851 S.W.2d 157, 161 (Tenn. 1993)). A sentence imposed
in direct contravention of a statute is illegal and therefore “void or voidable depending upon whether
the illegality of the sentence is evident on the face of the judgment or the record of the underlying
proceedings.” McLaney v. Bell, 59 S.W.3d 90, 94 (Tenn. 2001) (citing Stephenson v. Carlton, 28
S.W.3d 910, 911 (Tenn. 2000)); see also State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978). The
petitioner bears the burden of showing by a preponderance of the evidence that the conviction is void
or that the prison term has expired. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994), superceded by statute as stated in State v. Newman, No. 02C01-9707-CC-00266, 1998 WL
104492, at *1 n. 2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998), no Tenn. R. App. P. 11 application
filed.

          The procedural requirements for habeas corpus relief are mandatory and must be
scrupulously followed. Archer, 851 S.W.2d at 165. It is permissible for a trial court to summarily
dismiss a petition of habeas corpus without the appointment of a lawyer and without an evidentiary
hearing if there is nothing on the face of the judgment to indicate that the convictions addressed
therein are void. See Passarella, 891 S.W.2d at 627. The formal requirements for an application or
petition for writ of habeas corpus are found at Tennessee Code Annotated section 29-21-107 which
mandates, inter alia, that the petition shall state that “it is the first application for the writ, or, if a
previous application has been made, a copy of the petition and proceedings there shall be produced,
or satisfactory reasons should be given for the failure to do so.” Tenn. Code Ann. § 29-21-107(b)(4)
(2003). “A habeas corpus court may properly choose to dismiss a petition for failing to comply with
the statutory procedural requirements . . . .” Hickman v. State, 153 S.W.3d 16, 21 (2004). Because
the determination of whether habeas corpus relief should be granted is a question of law, our review
is de novo with no presumption of correctness. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000).


                                                    -3-
       Both Tennessee Code Annotated section 40-20-111(a) and Tennessee Rule of Criminal
Procedure 32(c)(2) provide the trial court judge with discretion to decide whether a defendant’s
sentence should run concurrently or consecutively with sentences that he received for prior
convictions. According to Tennessee Code Annotated section 40-20-111(a):

       When any person has been convicted of two (2) or more offenses, judgment shall be
       rendered on each conviction after the first, providing that the terms of imprisonment
       to which such person is sentenced shall run concurrently or cumulatively in the
       discretion of the trial judge. The exercise of the discretion of the trial judge shall be
       reviewable by the supreme court on appeal.

According to Tennessee Rule of Criminal Procedure 32(c)(2):

       If the defendant has additional sentences not yet fully served as the result of
       convictions in the same court or in other courts of this state and if this fact is made
       known to the court prior to sentencing, the court shall recite this in the judgment
       setting sentence, and the sentence imposed shall be deemed to be concurrent with the
       prior sentence or sentences, unless it affirmatively appears that the new sentence
       being imposed is to be served consecutively with the prior sentence or sentences.

        The Petitioner has failed to establish by a preponderance of the evidence that either the Union
County or the Anderson County judgment is void.1 Nor has the Petitioner established by a
preponderance of the evidence that his sentence has expired. Nothing on the face of the Petitioner’s
judgments establishes that the trial court lacked authority and jurisdiction to render these sentences.
Even if, as the Petitioner asserts, the sentences from Union County and Anderson County were
ordered to be served concurrently with sentences that had not yet been imposed, it does not
necessarily follow that the Union County and Anderson County judgments are void. Both judgments
are facially valid, and any illegality of the sentences is not evident from the faces of the judgments.
Further, if portions of the records from the convicting courts in Union County or Anderson County
could establish that either or both of those courts lacked jurisdiction to impose the sentences as
rendered, such portions of the records from the convicting courts were not presented to the habeas
court, and are therefore not included in the record of this appeal. Further, in our view, even if the
record, or portions of the record, from the convicting courts revealed that the Petitioner’s claims
pertaining to the concurrent nature of the sentences are true, the judgments being attacked by the
Petitioner would, at most, be voidable and not void.

        The Petitioner argues that the ruling in McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001) entitles
him to habeas corpus relief. In McLaney, the trial court imposed a sentence that conflicted with
Tennessee Code Annotated section 40-20-111(b). Tennessee Code Annotated section 40-20-111(b)
states that the trial judge must order sentences to run cumulatively when a Petitioner commits a
felony while such Petitioner was released on bail. The petitioner in McLaney contended that his


       1
           Both convictions and sentences are contained in one judgment document in the Anderson County case.

                                                       -4-
judgment was void on its face because his sentence ran concurrently and not cumulatively with his
prior sentences even though he committed his new felony offense while out on bail. McLaney, 59
S.W.3d at 93. The Tennessee Supreme Court held that if these allegations were true and the
Petitioner’s sentence did not abide by the dictates of Tennessee Code Annotated section 40-20-
111(b), then the Petitioner’s guilty plea was involuntary because it was made in exchange for an
illegal sentence. Id. at 95. The present case is distinguishable from McLaney. Unlike the Petitioner
in McLaney, the Petitioner in the case presently before us does not claim that he was on bail for prior
offenses when he received his sentence from the Union County Court or from the Anderson County
Court. In McLaney, our Supreme Court noted that if the facts were as alleged by McLaney, the trial
court imposed a sentence in direct contravention of the sentencing act. Such is not the case here.
As previously noted, any illegality of the sentence in the case under submission is not evident from
the faces of the judgments or the records of the proceedings upon which the judgments were
rendered. Therefore, the Petitioner is not entitled to relief on this issue.

       The Petitioner has failed to establish by preponderance of the evidence that his convictions
are void or his term of imprisonment has expired. Accordingly, the judgment of the trial court is
affirmed.

                                          III. Conclusion

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


                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




                                                 -5-
