        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON

            DAVID WAYNE BRITT v. JERRY LESTER, WARDEN



                 Appeal from the Circuit Court for Hardeman County
                        No. 5242    J. Weber McGraw, Judge


               No. W2013-00148-CCA-R3-HC - Filed January 13, 2014


The Petitioner, David Wayne Britt, appeals the Hardeman County Circuit Court’s denial of
his petition for writ of habeas corpus. The State has filed a motion requesting that this Court
affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal
Appeals. Following our review, we grant the State’s motion and affirm the judgment of the
trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
        Pursuant to Rule 20 of the Rules of the Court of Criminal Appeals

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OGER A. P AGE and
J OHN E VERETT W ILLIAMS, JJ., joined.

David Wayne Britt, Pro Se.

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

                               MEMORANDUM OPINION

       On April 9, 1990, the Petitioner entered a guilty plea to first degree murder,
conspiracy to commit first degree murder, and possession of a deadly weapon with the intent
to employ it in the commission of an offense. According to the plea documents, the State
recommended life imprisonment for first degree murder, three years for conspiracy to commit
murder, and one year for possession of a deadly weapon, with the sentences to be served
concurrently. The trial court accepted the Petitioner’s guilty plea, and sentenced the
Petitioner in accordance with the State’s recommendation.

       On April 27, 1994, the Petitioner filed a petition for post-conviction relief, alleging
ineffective assistance of counsel. Following a hearing, the trial court denied the petition and
this Court affirmed the trial court’s decision.1 David Wayne Britt v. State, No. 02C01-9607-
CC-00224, 1997 WL 409519 (Tenn. Crim. App. July 23, 1997) perm. app. denied (Tenn.
Mar. 16, 1998). In 2002, the Petitioner filed a petition for habeas corpus in the Morgan
County Criminal Court, alleging that his judgments and sentences were void. The trial court
found that the Petitioner’s three year sentence for conspiracy to commit first degree murder
was “facially void” and vacated the sentence. The court denied relief for the other two
convictions, and ordered that the case be returned to Hardeman County for resentencing on
the conspiracy conviction.2

        On May 18, 2004, the Petitioner filed a “Motion to Withdraw Plea” in Hardeman
County Circuit Court, alleging that his guilty plea was unknowing and involuntary because
he pleaded guilty to an illegal sentence. The trial court dismissed the Petitioner’s conviction
for conspiracy to commit murder as facially void, but determined that the remaining
convictions were valid and denied the Petitioner’s motion. This Court affirmed the decision
of the trial court on December 8, 2004. David Wayne Britt v. Ricky Bell, No. W2004-01524-
CCA-R3-HC, 2004 WL 2821225 (Tenn. Crim. App. Dec. 8, 2004) perm. app. denied (Tenn.
May 2, 2005).

        On April 18, 2012, the Petitioner filed a pro se petition for habeas corpus relief, in
which he alleges that his entire guilty plea is illegal and void. On June 14, 2012, he filed an
amended petition after the appointment of counsel incorporating the same grounds for relief.
A hearing was held on November 30, 2012, the Honorable J. Weber McGraw presiding.
Following the hearing, the trial court made oral findings on the Petitioner’s claims and denied
relief, reasoning “that the decision by the trial court back in 2004 [that dismissed his
conspiracy conviction as void] did not void the plea . . . [the dismissal] did not constitute a
material element or factor of the guilty plea.” On December 14, 2012, the court entered an
order denying relief. The Court concluded:



        1
          Initially, the Petitioner’s post-conviction petition was dismissed as having been barred by the
three-year statute of limitations; however, this Court reversed the dismissal on appeal, holding that the
statute of limitation was tolled while the Petitioner was a minor pursuant to Tennessee Code Annotated
section 28-1-106. See State v. David Wayne Britt, No. 02C01-9410-CC-00234 (Tenn. Crim. App. July
26, 1995).
        2
          The Petitioner appealed the Morgan County Criminal Court decision, asserting that the court
erred in refusing to grant him relief on his remaining convictions; however, the Petitioner filed a motion
to voluntarily dismiss his appeal, which was granted on July 13, 2004. See David Wayne Britt v. Ricky
Bell, No. W2004-01524-CCA-R3-HC, 2004 WL 281225, at *2 (Tenn. Crim. App. Dec. 8, 2004)
(discussing the procedural history of the Petitioner’s case in detail).

                                                    -2-
       [T]he May 28, 2004 decision of this Court finding the [conspiracy] sentence
       in Count Four to be illegal and therefore void and dismissing the conviction
       in Count Four did not void the plea agreement and further that Count Four did
       not constitute a material element of the plea agreement. Petitioner is not
       entitled to relief.

On December 21, 2012, the Petitioner filed a notice of appeal to this Court. On August 13,
2013, the State filed a motion to affirm the habeas court’s judgment pursuant to Rule 20 of
Rules of the Court of Criminal Appeals.

        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 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, as the
Tennessee Supreme Court stated in Hickman v. State:

       [A] voidable judgment is facially valid and requires the introduction of proof
       beyond the face of the record or judgment to establish its invalidity. Thus, in
       all cases where a petitioner must introduce proof beyond the record to establish
       the invalidity of his conviction, then that conviction by definition is merely
       voidable, and a Tennessee Court cannot issue the writ of habeas corpus under
       such circumstances.

153 S.W.3d 16, 24 (Tenn. 2004) (internal citations, quotations, and emphasis omitted); see
 Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (“Summers I”) (citation omitted).
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). If this burden is met, the Petitioner is entitled to immediate release. State
v. Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986) (citing Ussery v. Avery, 432

                                              -3-
S.W.2d 656, 658 (Tenn. 1968)).

        The Petitioner asserts that because his sentence for conspiracy to commit first degree
murder is illegal, the entire plea agreement, which was entered into and accepted by the court
as a package plea, is void and illegal. He asserts that the recommended three-year sentence
for conspiracy was a “material element” of the plea agreement, and thus, he is entitled to
withdraw his guilty plea. In its Rule 20 motion, the State asserts that we should affirm the
trial court’s dismissal of the petition for habeas corpus because the Petitioner has failed to
prove that the conspiracy sentence was a negotiated part of his plea, and even if this Court
concludes that it was a negotiated part of his plea, it was de minimus to the entire plea and
does not entitle the Petition to relief. Based on the record presented, the trial court did not
err in denying relief.

        “[W]hen a plea agreement constitutes a package deal, an illegal sentence imposed on
one of the plea offenses generally invalidates the entire plea agreement.” Summers I, 212
S.W.3d at 258 (citing McLaney v. Bell, 59 S.W.3d 90, 94-95 (Tenn. 2001)). However,
“[t]his general rule is not without exceptions.” Summers I, 212 S.W.3d at 258. The
Tennessee Supreme Court explained that the “determinative issue is whether the plea
agreement included an illegal sentence as a material element. If so, the illegal sentence
renders the guilty plea, including the conviction, invalid.” Id. at 259 (emphasis added).
However, “[i]f the record establishes that the illegal sentence was not a bargained-for
element of the plea agreement . . . the sentence is void, but the conviction remains intact, and
the only remedy is correction of the sentence.” Summers v. Fortner, 267 S.W.3d 1, 6-7
(Tenn. Crim. App. 2008) (“Summers II”). In Summers II, this Court stated as guidance that
“materiality exists when ‘there is a reasonable probability’ of a change in the outcome of the
proceedings.” Id. at 8 (citing Brady v. Maryland, 373 U.S. 83 (1963); United States v.
Bagley, 473 U.S. 667, 682 (1985)). The Court cautioned, however, that proof of materiality
is “strictly limited to the face of the judgment and the record of the underlying proceedings.”
Summers II, 267 S.W.3d at 7.

        In the present case, the judgments and record of underlying proceedings do not prove
materiality. The record contains only the Guilty Plea documents indicating the Petitioner’s
desire to plead guilty and stating that the State will “recommend a sentence of three (3)
years.” The record does not include a transcript of the guilty plea hearings nor any other
document that proves that the three year sentence was a “material element” of the plea
agreement. Moreover, we are persuaded by the State’s argument that the three-year sentence
is de minimus in light of the overall plea agreement. The Petitioner entered a guilty plea to
first degree murder, conspiracy to commit murder, and possession of a deadly weapon, and
received concurrent sentences of life, three years, and one year, respectively. As noted by
the State in its motion, the length of the sentences for conspiracy and possession of a deadly

                                              -4-
weapon were immaterial to the effective length of the Petitioner’s overall sentence because
they are to be served concurrently to the Petitioner’s life sentence.3 Thus, “[w]e view as
untenable the claim that the void component - the [conspiracy] conviction . . . with its [three-
year] sentence – fouled the remainder of the agreement.” See Michael David Russell v.
Virginia Lewis, No. E2005-02644-CCA-R3-HC, 2007 WL 2141546, at *2 (Tenn. Crim. App.
July 26, 2007) no pet. for perm. app. filed. The Petitioner has not proven that there is a
“reasonable probability” that the proceedings would have been different had the conspiracy
sentence been legal. See Summers II, 267 S.W.3d at 7. Thus, although the Petitioner’s
conspiracy sentence is void, his only remedy is the correction of the sentence. See id. The
trial court has already dismissed the void conspiracy sentence, and the Petitioner is entitled
to no further relief. The trial court properly denied the Petitioner relief.

        When an opinion would have no precedential value, the Court of Criminal Appeals
may affirm the judgment or action of the trial court by memorandum opinion when the
judgment is rendered or the action taken in a proceeding without a jury and such judgment
or action is not a determination of guilt, and the evidence does not preponderate against the
finding of the trial judge. See Tenn. Ct. Crim. App. R. 20. We conclude that this case
satisfies the criteria of Rule 20. Accordingly, it is ordered that the State’s motion is granted.
The judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court
of Criminal Appeals.




                                                      ___________________________________
                                                      CAMILLE R. McMULLEN, JUDGE




       3
        First degree murder carries a mandatory minimum sentence of life imprisonment. See T.C.A.
§39-13-202(c)(3).

                                                -5-
