        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs May 1, 2012

              TONY HOOVER v. HENRY STEWARD, WARDEN

                    Appeal from the Circuit Court for Lake County
                     No. 11-CR-9636     R. Lee Moore, Jr., Judge


               No. W2011-02453-CCA-R3-HC - Filed January 18, 2013


Pro se petitioner, Tony Hoover, appeals the Lake County Circuit Court’s denial of his
petition for writ of habeas corpus. The petitioner entered a plea of nolo contendere to two
counts of rape and two counts of incest, and he received an effective sentence of twenty-one
years in the Tennessee Department of Correction. On appeal, the Petitioner argues that the
judgments were illegal because they did not impose mandatory lifetime community
supervision or a sex offender surcharge. Because the Petitioner’s judgments do not reflect
the statutory requirement of mandatory lifetime community supervision, we conclude that the
judgments for rape are illegal and void. We vacate the Petitioner’s sentences for rape only
and remand to the habeas court for an evidentiary hearing to determine whether the illegal
sentence was a bargained for element of the Petitioner’s plea agreement. In all other
respects, the judgment of the habeas corpus court is affirmed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
                     in Part and Reversed and Vacated in Part

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.

Tony Hoover, Tiptonville, Tennessee Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; C. Phillip Bivens, District Attorney General; and Rachel E. Willis, Assistant
Attorney General, for the Appellee, State of Tennessee.

                                        OPINION
        Background. The Petitioner entered “open” nolo contendere1 pleas on two counts
of rape and two counts of incest. After bifurcated sentencing hearings, he received a ten and
one-half year sentence on each rape conviction to be served consecutively as a Range I,
standard offender at one hundred percent. For each incest conviction, the Petitioner received
a four-year sentence to be served concurrently with the attendant rape convictions. The
judgment forms for each of the Petitioner’s rape convictions failed to reflect that he was
sentenced to community supervision for life following the expiration of his sentence.
Following his convictions, the Petitioner filed a direct appeal, and this Court affirmed his
convictions and sentences. State v. Tony Hoover, W2007-00326-CCA-R3-CD, 2008 WL
65266 (Tenn. Crim. App. Jan. 7, 2008), perm. app. denied (Tenn. May 27, 2008). The
Petitioner filed a timely pro se petition for post-conviction relief, and appointed counsel filed
an amended petition, which was denied. This Court affirmed the denial of post-conviction
relief. Tony Hoover v. State, W2009-01737-CCA-R3-PC, 2011 WL 2306239 (Tenn. Crim.
App. June 7, 2011), perm. app. denied, (Tenn. Sept. 21, 2011).

       On October 21 and 28, 2011, the Petitioner filed a pro se petition for writ of habeas
corpus and a first amendment thereto in the Lake County Circuit Court, claiming that his
judgments were void because they did not impose either lifetime community supervision or
the sex offender surcharge as mandated by Tennessee Code Annotated Sections 39-13-524
and -709, respectively. The Petitioner attached copies of his judgment forms and transcripts
of the bifurcated sentencing hearings to his petition. There was no plea agreement or
transcript of the guilty plea hearing attached to the petition. On November 4, 2011, the
habeas court denied the petition on the grounds that the Petitioner failed to attach a copy of
his plea agreement and the transcript of his plea hearing, citing Tennessee Code Annotated
Section 29-21-107. The court additionally found that “even if [Petitioner] was not properly
advised of lifetime supervision and the trial court did not impose the mandatory sex offender
surcharge as alleged, the sentence would still not be void. It would be only voidable.” This
appeal followed.

                                               ANALYSIS

       The Petitioner contends that the habeas court erred in determining that the omission
of the mandatory supervision for life provision would render his sentences voidable rather
than void. The State responds that the habeas court did not err in denying the petition
because it failed to comply with Tennessee Code Annotated Section 29-21-107.



        1
         The judgment forms the Petitioner submitted show his pleas as nolo contendere. In his petition he
claims he entered Alford pleas. This Court’s earlier opinions referred to Petitioner’s pleas as “Alford pleas”
and “guilty” pleas. At the sentencing hearing it was noted that the Petitioner had entered Alford pleas “to
save the children from having to go through all of this.”

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        In determining whether to grant habeas corpus relief, our review is de novo without
a presumption of correctness. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007)
(“Summers I”) (citing State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006)). A prisoner
is guaranteed the right to habeas corpus relief under Article I, section 15 of the Tennessee
Constitution. Tenn. Const. art. I, § 15; see also T.C.A. §§ 29-21-101 to -130. The grounds
upon which a writ of habeas corpus may be issued, however, are very narrow. Taylor v.
State, 995 S.W.2d 78, 83 (Tenn.1999). “Habeas corpus relief is available in Tennessee only
when ‘it appears upon the face of the judgment or the record of the proceedings upon which
the judgment is rendered’ that a convicting court was without jurisdiction or authority to
sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint has
expired.” Archer v. State, 851 S.W.2d 157, 164 (Tenn.1993) (quoting State v. Galloway, 45
Tenn. (5 Cold.) 326, 337 (1868)). “[T]he 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)
(citing State ex rel. Newsom v. Henderson, 424 S.W.2d 186,189 (Tenn.1968)). “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.” Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn.
1998); Archer, 851 S.W.2d at 161-64). However, “a voidable judgment is one that is facially
valid and requires proof beyond the face of the record or judgment to establish its invalidity.”
Summers I, 212 S.W.3d at 256 (citing Dykes, 978 S.W.2d at 529). Moreover, it is the
petitioner’s burden to demonstrate, by a preponderance of the evidence, that the judgment
is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

        As an initial matter, the State argues that summary dismissal was proper because the
Petitioner failed to comply with the procedural requirements of habeas corpus relief. The
habeas corpus court denied relief based upon the Petitioner’s failure to attach to his petition
the guilty plea agreement and the guilty plea transcript. Without the benefit of these
documents, the habeas court reasoned that the trial court could have advised the Petitioner
of the mandatory lifetime supervision provision and the sex offender surcharge, orally, during
the acceptance of the Petitioner’s guilty plea. While we certainly understand the reasoning
of the habeas court, we respectfully conclude that summary dismissal was improper. Section
29-21-107 requires the petitioner to attach to his petition for habeas corpus a copy of the
legal documents causing his restraint “or a satisfactory reason given for its absence.” See
T.C.A. § 29-21-107(b)(2)(2000). The record shows that the Petitioner properly attached the
judgments to his petition, which constitutes the “legal process” alleged to cause the
Petitioner’s restraint as required by the statute. Accordingly, the habeas court erred in
summarily dismissing the petition.

      In his petition, the Petitioner correctly points out that his judgment forms do not
impose the statutorily mandated requirements of Tennessee Code Annotated Sections 39-13-


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524 and -709.2 As noted above, the State relies on the trial court’s summary dismissal of the
petition and does not address this issue. The Petitioner was convicted of two counts of
Tennessee Code Annotated Section 39-13-503, therefore the mandatory sentencing
provisions of section 39-13-524 apply. 3 This Court has repeatedly held that “[t]he failure
to include the community supervision for life provisions render[s] the defendants’ sentences
illegal.” State v. Bronson, 172 S.W.3d 600, 601-02 (Tenn. Crim. App. 2005). Accordingly,
we conclude that the Petitioner’s sentences for rape are illegal on the face of the judgments
because they do not include the mandatory supervision for life provision.

        “[W]hen a petitioner attaches to his petition documentation from the record showing
that his sentence is indeed illegal, the trial court must appoint counsel and hold a hearing to
determine the scope of the remedy available to the petitioner.” Summers v. Fortner, 267 S
.W.3d 1, 6-7 (Tenn. Crim. App. 2008) (“Summers II”); see also Author Ray Turner v. David
Mills, Warden, No. E2009-00194-CCA-R3-HC, 2010 WL 1949143, at *3-4 (Tenn. Crim.
App. May 13, 2010). In Summers, this court provided a procedural guideline for the habeas
corpus court on remand:

                  At such a hearing, the issue would be whether the illegal
                  sentence was a material element of a plea agreement with the
                  State, and the proof would be limited to the face of the record of
                  the underlying proceedings. If the record establishes that the
                  illegal sentence was not a bargained-for element of the plea
                  agreement, then . . . the sentence is void, but the conviction
                  remains intact, and the only remedy is correction of the

        2
            At the time of the Petitioner’s offenses, section 39-13-524 of the Tennessee Code provided:

        (a) In addition to the punishment authorized by the specific statute prohibiting the conduct,
        any person who, on or after July 1, 1996, commits a violation of § 39-13-502, § 39-13-503,
        § 39-13-504, § 39-13-522, or attempts to commit a violation of any such section, shall
        receive a sentence of community supervision for life.

        (b) The judgment of conviction for all persons to whom the provisions of subsection (a)
        apply shall include that such person is sentenced to community supervision for life.

        (c) The sentence of community supervision for life shall commence immediately upon the
        expiration of the term of imprisonment imposed upon such person by the court or upon such
        person’s release from regular parole supervision, whichever first occurs.

T. C. A. § 39-13-524 (2004) (a)-(c).
        3
          The provisions do not apply, however, to the Petitioner’s two convictions of incest, which are
violations of section 39-15-302 (2004).

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              sentence. If the record establishes that the illegal sentence was
              a material part of a package deal, then the petitioner is entitled
              to withdraw his plea if he cannot reach an agreement with the
              State. See McConnell v. State, 12 S.W.3d 795, 800 (Tenn.
              2000) (holding that withdrawal of the guilty plea is unnecessary
              when the parties agree to replace an illegal sentence with a legal
              one).

Id. at 6-7. As noted in Summers II, this Court does not serve as a fact-finding court and,
despite the woefully inadequate record in this case, we must remand to the habeas corpus
court for determination of whether lifetime community supervision was a material
bargained-for element of the petitioner’s plea agreement.

        In light of the mounting criticism of this procedure, we are compelled to note that we
are bound to apply the procedural guidelines for habeas corpus relief established in Summers
II, even if we disagree, because this case is binding precedent. Despite this fact, we
acknowledge this court’s disagreement as to whether the habeas corpus court or the
convicting court is the proper forum for determining whether a guilty plea may be withdrawn.
See Joey D. Herrell v. Howard Carlton, Warden, No. E2009-01162-CCA-R3-HC, 2010 WL
2612737, at *5 (Tenn. Crim. App. June 30, 2010) (Tipton, P.J., concurring) (“I see nothing
in the supreme court cases that even hints at allowing the habeas court to bind a convicting
court by determining whether a Petitioner is entitled to withdraw a guilty plea.”); Tracy Lynn
Harris v. Jim Worthington, Warden, No. E2008-02363-CCA-R3-HC, 2010 WL 2595203, at
*4 (Tenn. Crim. App. June 29, 2010) (Tipton, P.J., concurring) (“[A]lthough the record may
support a conclusion that the illegality at issue was not a material element of the plea
agreement, it is the sole authority of the convicting court, not the habeas court, to determine
the proper result.”), perm. app. denied (Tenn. Nov. 17, 2010); Michael Shane Benson v.
State, No. E2011-00786-CCA-R3-HC, 2011 WL 6813185 *3-4, (Tenn . Crim. App. Dec. 22,
2011) (noting procedural “conundrum” faced by the court and remanding to the habeas court
for evidentiary hearing); compare State v. Burkhart, 566 S.W.2d 871, 873 (Tenn.1978)
(remanding to the convicting court to conduct an evidentiary hearing to determine whether
the petitioner’s sentence for escape was illegal, thereby entitling him to withdraw the plea,
because the sentence was ordered to be served concurrently rather than consecutively to his
sentence for burglary in his plea agreement), and McLaney v. Bell, 59 S.W.3d 90, 95-96
(Tenn. 2001) (remanding the case to the habeas corpus court for the appointment of counsel
and for a hearing to determine whether the petitioner’s sentence pursuant to his plea
agreement was void, and, if the habeas corpus court determined that the sentence was void,
ordering that the habeas corpus court transfer the case to the convicting court “for appropriate
disposition”), with Summers II, 267 S.W.3d at 7 (remanding the case to the habeas corpus
court for the appointment of counsel and for an evidentiary hearing to determine whether the
petitioner was entitled to withdraw his guilty plea). Unless the Tennessee Supreme Court

                                              -5-
decides to overrule existing precedent, a remand to the habeas corpus court for the purpose
of conducting an evidentiary hearing to determine the Petitioner’s entitlement to withdraw
his guilty plea is proper.

        Accordingly, based on the above authority, we hold that the Petitioner’s sentences for
rape are illegal and therefore void. We reverse the summary denial of the petition on this
issue, vacate the Petitioner’s rape sentences, and remand the case to the habeas corpus court
for an evidentiary hearing. The evidentiary hearing is limited to whether the illegal sentence
was a material bargained-for element of a plea agreement with the State, and the proof would
be limited to the record of the underlying proceedings.

       Next, the Petitioner urges this court to find that his convictions and sentences are void
based on the omission of the sex offender surcharge from his judgment. Unlike the omission
of the mandatory lifetime community supervision, Tennessee courts have not addressed
whether the omission of the sex offender surcharge from a judgment renders the judgment
void. In 2004, Tennessee Code Annotated Section 39-13-709 provided in pertinent part:

       (b) On and after July 1, 1996, each person who is convicted of a sex offense
       as defined in this part shall pay a tax to the clerk of the court in which the
       conviction occurs in an amount not to exceed three thousand dollars ($3,000)
       as determined by the court for each conviction as defined by this part.

       ....

       (e) The court may waive all or any portion of the tax required by this section
       if the court finds that a person convicted of a sex offense is indigent or
       financially unable to pay.

T. C. A. § 39-13-709(b),(e) (2004). Section 39-13-703(3) defined “sex offense” as, among
other things, a felony offense of rape under section 39-13-503 and incest under section 39-
15-302. Accordingly, the surcharge applies to all of the Petitioner’s offenses. Because
section 39-13-709(e) allows the court to waive the surcharge, we conclude that the
judgments’ failure to impose the surcharge does not render the judgments illegal per se.
Therefore, the Petitioner’s complaint with regard to the surcharge is without merit and we
affirm the habeas court’s dismissal of the petition on this ground.

                                  CONCLUSION

       The judgment of the Lake County Circuit Court is affirmed in part and reversed in
part. We reverse the judgment of the habeas court and grant habeas corpus relief by vacating
the Petitioner’s sentences for rape only. We remand the matter to the habeas court for an

                                              -6-
evidentiary hearing to determine whether the illegal rape sentences were a material
bargained-for element of the Petitioner’s plea agreement. In all other respects, the judgment
of the habeas court is affirmed.


                                                   ______________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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