        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs December 6, 2011

                 DAVID HEARING v. DAVID MILLS, WARDEN

                Direct Appeal from the Circuit Court for Lake County
                     No. 11-CR-9583     R. Lee Moore, Jr., Judge


               No. W2011-01226-CCA-R3-PC - Filed February 28, 2012


The petitioner, David Hearing, filed a petition for a writ of habeas corpus, seeking relief from
his two convictions of felony murder and the accompanying life sentences. The habeas
corpus court denied relief, and the petitioner appeals. Upon review, we affirm the judgment
of the habeas corpus court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which A LAN E. G LENN and
J EFFREY S. B IVINS, JJ., joined.

David Hearing, Tiptonville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Clarence E. Lutz, Assistant
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                  I. Factual Background

        The petitioner was originally charged with two counts of felony murder, and the State
filed notice of intent to seek the death penalty. See David Hearing v. State, No. E2009-
02430-CCA-R3-PC, 2010 WL 3837535, at *1 (Tenn. Crim. App. at Knoxville, Oct. 4, 2010),
perm. to appeal denied, (Tenn. 2011). On September 2, 2005, the petitioner pled guilty to
the charged offenses in exchange for concurrent life sentences. Id. Within thirty days, the
petitioner filed a motion to withdraw his pleas, maintaining that trial counsel
“misrepresent[ed] the terms of the plea agreement,” especially the length of his sentences.
Id.; see also David Wayne Hearing v. State, No. E2006-00362-CCA-R3-PC, 2006 WL
3813625, at *1 (Tenn. Crim. App. at Knoxville, Oct. 24, 2006). The trial court treated the
motion as a post-conviction petition and denied relief; the petitioner appealed, and this court
“remanded to the trial court for consideration of the petitioner’s original motion to withdraw
his guilty pleas.” Hearing, No. E2006-00362-CCA-R3-PC, 2006 WL 3813625, at *1.

        On remand, the trial court denied the petitioner’s motion to withdraw his pleas under
Tennessee Rule of Criminal Procedure 32(f). See David Wayne Hearing v. State, No.
E2007-00778-CCA-R3-PC, 2008 WL 481781, at *4 (Tenn. Crim. App. at Knoxville, Feb.
22, 2008). The petitioner appealed, and this court affirmed the judgment of the trial court.
Id. at *1.

       Subsequently, the petitioner filed a petition for post-conviction relief, alleging
ineffective assistance of counsel. Among his claims, the petitioner again maintained that he
was misinformed about the length of his sentences. The post-conviction court denied relief,
and, on appeal, this court affirmed that decision. Hearing, No. E2009-02430-CCA-R3-PC,
2010 WL 3837535, at *1.

        Thereafter, the petitioner filed a petition for a writ of habeas corpus in which he
essentially reiterated his previous complaints about the length of his sentences and alleged
that his judgments of conviction were void on their face. The petitioner specifically stated
that on each judgment, a box was checked to reflect that he received a life sentence.
However, each judgment additionally provided that the length of the sentence was fifty-one
years. The petitioner argued that the trial court did not have the authority to impose a
sentence of fifty-one years for a conviction for felony murder because Tennessee Code
Annotated section 40-35-501(i)(2) provides that a life sentence is sixty years to be served at
one hundred percent. Copies of the petitioner’s judgments of conviction were attached to his
habeas corpus petition; however, the bottom portion of the judgments, which contained the
special conditions section, was omitted from each copy.

       The habeas corpus court denied the petition, finding that Tennessee Code Annotated
section 40-35-501(i)(2) states that while there is no release eligibility for a person convicted
of felony murder, the sentence may be reduced by up to fifteen percent for sentencing credits
earned. The habeas corpus court noted that “[a] fifteen percent (15%) reduction in the
sentence for sentence credits would be a total of fifty-one (51) years.” The court said, “The
judgment states clearly that the sentence is a life sentence[;] whether or not it is actually fifty-
one (51) or sixty (60) years or less would depend on the petitioner’s conduct while in prison.
Although the sentences may be voidable, they are not void on their face.”

        Thereafter, the petitioner filed a “Motion For Relief From Judgment,” requesting
relief “from the order dismissing his habeas corpus petition.” To this motion, the petitioner
attached complete copies of the judgments of conviction as well as his written plea

                                                -2-
agreement. The habeas corpus court denied this motion, upholding its earlier denial of
habeas corpus relief. Moreover, the post-conviction court noted

              that the term of sentence shown on the negotiated plea
              agreement is “life with possibility of parole.” It is clear that the
              agreement at the time of the plea was entered was that the
              petitioner would receive life sentences with the possibility of
              parole whether that be fifty-one (51) or sixty (60) years.

       On appeal, the petitioner challenges the denial of habeas corpus relief, arguing that
his judgments are facially void because they “simultaneously contain markings in the
sentence length sections which are both logically and statutorily irreconcilable (i.e. life . . .
and 51 years).”

                                         II. Analysis

        Initially, we note that the determination of whether to grant habeas corpus relief is a
question of law. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we will
review the trial court’s findings de novo without a presumption of correctness. Id. Moreover,
it is the petitioner’s burden 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).

        Article I, section 15 of the Tennessee Constitution guarantees an accused the right to
seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). However,
“[s]uch relief is available only when it appears from the face of the judgment or the record
of the proceedings that a trial court was without jurisdiction to sentence a defendant or that
a defendant’s sentence of imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d
at 322; see also Tenn. Code Ann. § 29-21-101 (2000). In other words, habeas corpus relief
may be sought only when the judgment is void, not merely voidable. Taylor, 995 S.W.2d at
83. “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.’ We have recognized that a sentence imposed in direct contravention of a
statute, for example, is void and illegal.” Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn.
2000) (quoting Taylor, 995 S.W.2d at 83).

      As the habeas corpus court found, the petitioner’s plea agreement and his judgments
provide that the petitioner received concurrent life sentences for his convictions of felony
murder. Although the judgments also contain markings indicating that the length of the
sentences is fifty-one years, the habeas corpus court correctly noted that “[t]he judgment

                                               -3-
states clearly that the sentence is a life sentence[;] whether or not it is actually fifty-one (51)
or sixty (60) years or less would depend on the petitioner’s conduct while in prison.” Because
the bargained-for life sentence is a valid sentence for the petitioner’s felony murder
conviction, the reference to a sentence length of fifty-one years is superfluous, a clerical error
that does not entitle the petitioner to habeas corpus relief. See Stephen Lajuan Beasley v.
State, No. E2005-00367-CCA-MR3-HC, 2005 WL 3533265, at *3 (Tenn. Crim. App. at
Knoxville, Dec. 27, 2005). Therefore, we, like the habeas corpus court, conclude that the
petitioner’s judgments are not facially void.

                                        III. Conclusion

      In sum, we conclude that the habeas corpus court did not err in denying the petitioner
habeas corpus relief. Accordingly, we affirm the judgment of the habeas corpus court.




                                                      _________________________________
                                                      NORMA McGEE OGLE, JUDGE




                                                -4-
