         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs July 11, 2000

              MICHAEL WADE SMITH v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. P-18838    John P. Colton, Jr., Judge



                    No. W1999-01817-CCA-R3-PC - Filed October 23, 2000


The petitioner pled guilty in Shelby County Criminal Court to two counts of rape, two counts of
aggravated burglary, and five misdemeanor counts. He was sentenced, pursuant to a negotiated plea
agreement, to ten years for each of the rape counts; six years for each of the aggravated burglary
counts; and eleven months and twenty-nine days for each of the misdemeanor counts, with all
sentences to be served concurrently for an effective sentence of ten years. The sequence of the
charges was that the petitioner was arrested and charged with a rape, an aggravated burglary, and all
of the misdemeanor counts, released on bail, and later arrested for the second rape and aggravated
burglary, both of which occurred while he was on bail for the first set of charges. In this petition for
post-conviction relief, the petitioner sought to have his guilty pleas set aside on the grounds that his
pleas were not voluntarily and knowingly made and he received ineffective assistance of counsel.
It is unnecessary to address those issues because it appears from the record that the negotiated plea
agreement was in violation of Tennessee Code Annotated Section 40-20-111(b), requiring that a
sentence for a felony committed while on bail be served consecutively to the sentence for the initial
felony charge. Because we do not know whether the petitioner would have entered his pleas of
guilty had he known of the requirement regarding consecutive sentencing, on remand the petitioner
must be allowed to withdraw his pleas of guilty as to both of the rape and both of the aggravated
burglary charges.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and
                                        Remanded

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES, J., and CORNEL IA
A. CLARK, SP .J., joined.

Robert B. Gaia, Memphis, Tennessee, for the appellant, Michael Wade Smith.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
William L. Gibbons, District Attorney General; and P. T. Hoover, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                             OPINION

        The petitioner, Michael Wade Smith, pled guilty on March 13, 1997, in Shelby County
Criminal Court to two counts of rape and two counts of aggravated burglary, as well as five
misdemeanor counts. The petitioner was sentenced pursuant to a negotiated plea agreement to ten
years for each of the rape counts; six years for each of the aggravated burglary counts; and eleven
months and twenty-nine days for each of the misdemeanor counts, with all sentences to be served
concurrently for an effective sentence of ten years. In this petition for post-conviction relief, the
petitioner seeks to have his guilty pleas set aside on the grounds that his pleas were not voluntarily
and knowingly made and he received ineffective assistance of counsel. However, we find that there
are other grounds upon which the guilty pleas must be set aside.

         It appears from the record that the negotiated plea agreement was in violation of Tennessee
Code Annotated Section 40-20-111(b), in effect at the time of the offenses, because the second rape
and aggravated burglary were committed after the petitioner had been released on bail for the first
rape and aggravated burglary, and the petitioner was convicted of both rapes and both aggravated
burglaries. Accordingly, while the sentences for the rape and aggravated burglary committed on
March 19, 1995, may be served concurrently as to each other, those sentences cannot be served
concurrently as to sentences for other felony offenses committed while the petitioner was on bail for
the first set of offenses.

                                              FACTS

       The record includes the judgment for the rape charged in 96-08880 and for the aggravated
burglary charged in 96-08879, both of which were committed on March 19, 1995. Those judgment
forms show that the petitioner was jailed for those offenses from March 25, 1995, until March 29,
1995, at which time the petitioner was set free on bail.

        While free on bail on indictments 96-08879-80, the petitioner was rearrested and charged
with a rape and an aggravated burglary which occurred on July 6, 1996. These charges resulted in
indictments 96-08877 and 96-08878.

        A guilty plea submission hearing was held on March 13, 1997, at which time the petitioner
entered an Alford plea, that is, one in his best interest without admitting guilt. The petitioner pled
guilty to each of the following:

               96-00140        Resisting official detention
               96-00141        Misdemeanor assault
               96-00142        Misdemeanor assault
               96-00143        Misdemeanor assault
               96-08878        Aggravated burglary [7/6/95]
               96-08879        Aggravated burglary [3/19/95]
               96-08880        Rape [3/19/95]


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               96-08877       Rape [7/6/95]
               96-08881       Aggravated criminal trespass

Although the bond documents are not included in the record, the testimony of his trial counsel, who
served as co-defense counsel through the plea submission hearing, confirms this sequence. Trial
counsel, responding to direct questioning at the post-conviction hearing held on May 13, 1999,
concerning the number of times he met with the petitioner prior to the plea submission hearing,
stated the following:

               I don’t want to speculate because I do not remember. I know we saw
               him when he was on bond at the office. And then while he was on
               bond for a first rape, he was alleged to have committed another rape
               which was then a revocation of the bond and he was in Shelby County
               jail.

        In its Findings of Fact and Conclusions of Law, the court found that the petitioner had not
received ineffective assistance of counsel and that his guilty pleas were not unknowing and
involuntary. However, it is unnecessary for us to determine the correctness of this ruling, for we
conclude that other grounds require this matter to be remanded to allow the petitioner to withdraw
his guilty pleas as to both of the rape and both of the aggravated burglary charges.

                                            ANALYSIS

       Tennessee Code Annotated Section 40-20-111(b) states:

               In any case in which a defendant commits a felony while such
               defendant was released on bail in accordance with the provisions of
               chapter 11, part 1 of this title, and the defendant is convicted of both
               such offenses, the trial judge shall not have discretion as to whether
               the sentences shall run concurrently or cumulatively, but shall order
               that such sentences be served cumulatively.

      This section is specifically referred to in the Sentencing Commission Comments to
Tennessee Code Annotated Section 40-35-115 as follows:

               Subsection (d) provides that while consecutive sentences are
               discretionary, in a few instances, consecutive sentences are mandated
               either by statute or by Tenn. R. Crim. P. 32. For example, see § 39-
               16-605, which requires consecutive sentences for escape from a penal
               institution, and § 40-20-111(b), which requires consecutive sentences
               for felonies committed while the defendant was released on bail.




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        Here, the judgments show that the petitioner received jail credit of four days on both the rape
committed on March 19, 1995, and the aggravated burglary committed on March 19, 1995, and that
he was released on March 29, 1995. The record shows that the petitioner subsequently committed
another rape and aggravated burglary on July 6, 1995. The record shows that the petitioner was
convicted of all four offenses on March 13, 1997, and that the sentences were order to be served
concurrently, by agreement of the parties. Because this sentence is in direct contravention of
statutory law, even if agreed to by the parties, the judgment of the trial court is void.

           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 v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A sentence imposed in direct contravention of a
statute is void and illegal. See Jonathan Stephenson v. Howard Carlton, Warden, No. E1998-00202-
SC-R11-CD, slip op. at 3 (Tenn. Sept. 21, 2000) (citing State v. Burkhart, 566 S.W.2d 871, 873
(Tenn. 1978)). In such instances, a trial court lacks statutory authority to render the judgment.
Furthermore, “the parties cannot by agreement salvage an illegal sentence or otherwise create
authority for the imposition of a sentence that has not been authorized by statute.” Id. (citing
McConnell v. State, 12 S.W.3d 795, 799 (Tenn. 2000). A void or illegal sentence may be corrected
“at any time, even if it has become final.” Burkhart, 566 S.W.2d at 873 (citations omitted). The trial
judge, therefore, has “both the power, and the duty, to correct the judgment . . . as soon as its
illegality [is] brought to his attention.” Id.

       Since the petitioner entered his pleas of guilty with the belief that all sentences would be
served concurrently, we do not know whether he would have done so had he known of the
requirement regarding consecutive sentencing. See State v. Vinton T. Maclin, No. W1999-01845-
CCA-R3-CD, 1999 WL 1532155, at *2 (Tenn. Crim. App., Jackson, Dec. 16, 1999). Accordingly,
we remand this matter to the trial court to allow the petitioner to withdraw his pleas of guilty as to
both of the rape and both of the aggravated burglary charges.




                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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