        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs May 6, 2014

    THOMAS PAUL GAGNE, JR. v. MICHAEL DONAHUE, WARDEN

                 Appeal from the Circuit Court for Hardeman County
                  No. CC-13-CR-146 Joseph H. Walker, III, Judge


                 No. W2013-02403-CCA-R3-HC - Filed May 21, 2014


The Petitioner, Thomas Paul Gagne, Jr., appeals the Hardeman County Circuit Court’s
summary dismissal of his petition for habeas corpus relief from his 1998 convictions for two
counts of felony murder, aggravated burglary, and two counts of theft of property valued at
$500 or less and his effective life sentence. The Petitioner contends that the trial court erred
by dismissing his petition without an evidentiary hearing. We affirm the judgment of the trial
court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which A LAN E. G LENN and
C AMILLE R. M CM ULLEN, JJ., joined.

Thomas Paul Gagne, Jr., Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; and
D. Michael Dunavant, District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

        The Petitioner was convicted upon guilty pleas and received consecutive life sentences
for his two felony murder convictions, a concurrent six-year sentence for his aggravated
burglary conviction, and concurrent eleven-month, twenty-nine-day sentences for his two
theft of property convictions. According to the felony murder judgments, the life sentences
were consecutive to each other and to case number “59006,” but the 59006 judgment is not
included in the appellate record. The Petitioner sought post-conviction relief on the ground
that he received the ineffective assistance of counsel. The trial court denied relief, and this
court affirmed the denial. Thomas Paul Gagne, Jr. v. State, No. E2000-03073-CCA-R3-PC
(Tenn. Crim. App. July 25, 2001), perm. app. denied (Tenn. Nov. 5, 2001). The Petitioner
now seeks habeas corpus relief.

       In his habeas corpus petition, the Petitioner asserted that his six-year aggravated
burglary sentence in Count 5 was to be served concurrently with his life sentence for felony
murder in Count 3 and that it was imposed concurrently with the sentence in case number
59006, not consecutively. The trial court noted that the judgment forms were attached to the
petition but that the plea form and the transcript of the proceedings were not attached. The
court summarily dismissed the petition, finding that habeas corpus relief was not appropriate
because the Petitioner’s sentences had not expired and the court had jurisdiction to sentence
him. The court also noted that if the petition was treated as one for post-conviction relief,
the court did not have jurisdiction and that the Petitioner had previously filed a post-
conviction petition. This appeal followed.

         The Petitioner contends that his sentences are illegal. He argues that the judgment for
his aggravated burglary conviction in Count 5 shows that its six-year sentence is to be served
concurrently to his life sentence in Count 1 “in direct contravention of his guilty plea
agreement and the (1989) Sentencing Act.” He asserts that the Count 5 judgment also states
that its six-year sentence is to be served concurrently to the sentence in case number 59006,
which he argues is in direct contravention of his guilty plea. He also argues that the trial
court breached his plea agreement and that the Tennessee Department of Correction (TDOC)
illegally altered his judgments. The State responds that the trial court properly dismissed the
petition because the Petitioner failed to state a cognizable ground for habeas corpus relief.
We conclude the Petitioner is not entitled to relief.

        The determination of whether habeas corpus relief should be granted is a question of
law that is reviewed de novo with no presumption of correctness. State v. Livingston, 197
S.W.3d 710, 712 (Tenn. 2006); Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2001). In
Tennessee, habeas corpus relief is available only when it appears on the face of the judgment
or the record that the trial court was without jurisdiction to convict or sentence the defendant
or that the sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). When
applicable, the purpose of the habeas corpus petition is to contest a void, not merely a
voidable, judgment. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999); State ex rel. Newsom
v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968).

       A void judgment is “one that is facially invalid because the court did not have the
statutory authority to render such judgment.” Summers v. State, 212 S.W.3d 251, 256 (Tenn.
2007). A voidable judgment “is one that is facially valid and requires proof beyond the face
of the record or judgment to establish its invalidity.” Id. at 255-56. The burden is on the
petitioner to establish that the judgment is void or that the sentence has expired. State ex rel.

                                               -2-
Kuntz v. Bomar, 381 S.W.2d 290, 291-92 (Tenn. 1964). The trial court, however, may
dismiss a petition for writ of habeas corpus without a hearing and without appointing a
lawyer when the petition does not state a cognizable claim for relief. Hickman v. State, 153
S.W.3d 16, 20 (Tenn. 2004); State ex rel. Edmondson v. Henderson, 421 S.W.2d 635, 636-37
(Tenn. 1967); see T.C.A. § 29-21-109 (2010).

        We note that the Petitioner’s sole issue in his petition concerned Count 5 being served
concurrently to Count 3 but that in his brief, his issue concerns Count 5 being served
concurrently to Count 1. The judgments show that Count 5 is to be served concurrently to
Counts 1 and 3, not case number 59006. The judgments for Counts 1 and 3 show that they
are to be served consecutively to each other and to case number 59006. The Petitioner’s
serving the sentence for Count 5 concurrently with those for Counts 1 and 3 makes the Count
5 sentence consecutive to case number 59006, as well. We conclude that the sentence is not
illegal and that the Petitioner is not entitled to relief on the issue.

        Regarding the Petitioner’s arguments concerning TDOC and his plea agreement, the
Petitioner relies on documents attached to his brief, which were not submitted to the trial
court and were not included in the appellate record. In any event, the Petitioner’s claims of
error involving TDOC and his plea of guilty and waiver of jury trial form are not cognizable
for habeas corpus relief. We conclude that his judgments provide legal sentences and that
he is not entitled to relief.

        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.




                                           ___________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




                                              -3-
