         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs November 7, 2006

                RONALD E. WALKER v. RICKY BELL, Warden

                     Appeal from the Criminal Court for Shelby County
                   No. 85-02083, 85-02084, 85-02085 W. Otis Higgs, Judge


                   No. W2006-00644-CCA-R3-HC - Filed January 18, 2007


The Petitioner, Ronald E. Walker, filed a pro se petition for a writ of habeas corpus. The habeas
corpus court denied relief, and the Petitioner filed a timely notice of appeal. On appeal, the
Petitioner contends that he received an illegal sentence that was used to enhance the sentence that
he is presently serving. He also asserts that the sentence that he is presently serving is void on its
face. Finding no reversible error, we affirm the judgment of the habeas court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES
CURWOOD WITT , JR., JJ., joined.

Ronald E. Walker, Nashville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;
William L. Gibbons, District Attorney General, for the Appellee, State of Tennessee.

                                             OPINION
                                              I. Facts

        This case arises from the denial of the Petitioner’s habeas corpus petition contending that he
received an illegal sentence that was used to enhance the sentence that he is presently serving, and
that the sentence that he is presently serving is void on its face. On March 21, 1986, the Petitioner,
Ronald E. Walker, plead guilty to the following three offenses, with each sentence to run
concurrently with the other two:
 Case                Offense          Arrest Date          Conviction Date      Sentence
 Number
 85-00269            Receiving        1-15-85              3-21-86              three years, Range I
                     Stolen
                     Property
 85-01210            Burglary         11-12-841            3-21-86              three years, Range I
 85-03572            Grand            1-15-85              3-21-86              three years, Range I
                     Larceny

       Subsequently, a Shelby County jury convicted the Defendant of aggravated kidnaping,
aggravated assault, and robbery in the following cases:

     Case              Offense          Arrest Date           Conviction Date          Sentence
  85-02083           Aggravated            1-15-85                6-26-86       life
                     Kidnaping
  85-02084           Aggravated            1-15-85                6-26-86       ten years, Range II
                      Assault
  85-02085             Robbery             1-15-85                6-26-86       fifteen years, Range II

The trial court ordered the Petitioner’s sentences for all three of these convictions to run concurrently
with one another and also concurrently with the March 21, 1986 convictions for burglary, receiving
stolen property and grand larceny. The Petitioner filed a habeas corpus petition arguing that the trial
court lacked authority to impose concurrent sentences for his burglary, receiving stolen property, and
grand larceny offenses because he was released on a $2,500 bail bond for his burglary charge when
he committed the offenses of grand larceny and receiving of stolen property. The habeas court
dismissed the Petition holding that despite the apparent illegality the sentences, the Petitioner was
not imprisoned or restrained of his liberty by the subject convictions, and the sentences had expired
and were not subject to habeas corpus relief.

                                                   II. Analysis

       On appeal, the Petitioner contends he is being restrained of his liberty by a sentence which
was enhanced by an illegal sentence. He argues that his sentences for his receiving stolen property,
burglary, and grand larceny became illegal when the trial court accepted his guilty pleas and ran these
sentences concurrently in violation of Tennessee Code Annotated section 40-20-111(b) because
when he committed these offenses he was out on bail for the burglary charge of which he was


        1
            The Petitioner was released on a $2,500 bond on 11-13-1984.

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subsequently convicted. He contends that these illegal sentences were improperly used to enhance
his sentences for aggravated kidnaping, aggravated assault, and robbery from Range I to Range II.
The Petitioner also argues that the judgment running his sentences for the aggravated kidnaping,
aggravated assault, and robbery convictions concurrently with the burglary conviction violates
Tennessee Code Annotated section 40-20-111(b) because when he committed these offenses he was
out on bail for the burglary charge of which he was subsequently convicted.

        Article I, Section 15 of the Tennessee Constitution guarantees its citizens the right to seek
habeas corpus relief. In Tennessee, a “person imprisoned or restrained of [his or her] liberty, under
any pretense whatsoever . . . may prosecute a writ of habeas corpus, to inquire into the cause of such
imprisonment . . . .” Tenn. Code Ann. § 29-21-101 (2003). The grounds upon which habeas corpus
relief will be granted are very narrow. Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004); State v.
Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000). “Unlike the post-conviction petition, the purpose of a
habeas corpus petition is to contest void and not merely voidable judgments.” Hickman, 153 S.W.3d
at 20; Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). Therefore, in order to state a cognizable claim
for habeas corpus relief, the petition must contest a void judgment. Id. “A void judgment is one in
which the judgment is facially invalid because the court did not have the statutory authority to render
such judgment . . . . A voidable judgment is one which is facially valid and requires proof beyond
the face of the record or judgment to demonstrate its voidableness.” Dykes v. Compton, 978 S.W.2d
528, 529 (Tenn. 1998) (citing Archer v. State, 851 S.W.2d 157, 161 (Tenn. 1993)). Thus, a writ of
habeas corpus is available only when it appears on the face of the judgment or the record that the
convicting court was without jurisdiction to convict or sentence the Petitioner, or that the sentence
of imprisonment or other restraint has expired. Archer, 851 S.W.2d at 164; Potts, 833 S.W.2d at 62.

       The procedural requirements for habeas corpus relief are mandatory and must be scrupulously
followed. Hickman v. State, 153 S.W.3d 15, 19-20 (Tenn. 2004); Archer, 851 S.W.2d at 165. The
formal requirements for an application or petition for writ of habeas corpus are found at Tennessee
Code Annotated section 29-21-107 (2003):

       (a) Application for the writ shall be made by petition, signed by either the party for
       whose benefit it is intended, or some person on the petitioner's behalf, and verified
       by affidavit.

       (b) The petition shall state:

       (1) That the person in whose behalf the writ is sought, is illegally restrained of
       liberty, and the person by whom and place where restrained, mentioning the name of
       such person, if known, and if unknown, describing the person with as much
       particularity as practicable;

       (2) The cause or pretense of such restraint according to the best information of the
       applicant, and if it be by virtue of any legal process, a copy thereof shall be annexed,
       or a satisfactory reason given for its absence;


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       (3) That the legality of the restraint has not already been adjudged upon a prior
       proceeding of the same character, to the best of the applicant's knowledge and belief;
       and

       (4) That it is the first application for the writ, or, if a previous application has been
       made, a copy of the petition and proceedings there shall be produced, or satisfactory
       reasons should be given for the failure to do so.

Tenn. Code Ann. § 29-21-107. “A habeas corpus court may properly choose to dismiss a petition
for failing to comply with the statutory procedural requirements . . . .” Hickman, 153 S.W.3d at 21.

         In the case under submission, the Petitioner failed to adhere to the mandatory requirements
for habeas corpus petitions under Tennessee Code Annotated 29-21-107. He did not verify the
petition by affidavit as required by section 29-21-107(a). Nevertheless, in the interest of justice, we
will consider the Petitioner’s claims. The Petitioner’s claim that he is being restrained of his liberty
by a sentence which was enhanced by an illegal sentence does not entitle him to relief. He claims
that his sentences for receiving stolen property, burglary, and grand larceny are illegal because they
violate Tennessee Code Annotated 40-20-111(b), that they were illegal when he pled guilty, and that
they were therefore improperly used to enhance his sentences for aggravated kidnaping, aggravated
assault, and robbery. A statutory prerequisite for eligibility to seek habeas corpus relief is that the
petitioner must be “imprisoned or restrained of liberty” by the challenged convictions. Tenn. Code
Ann. 29-21-101 (2003). In Hickman v. State, 153 S.W.3d 16, 23 (Tenn. 2004), our Supreme Court
explained that:

       [A] person is not “restrained of liberty” for purposes of the habeas corpus statute
       unless the challenged judgment itself imposes a restraint upon the petitioner’s
       freedom of action or movement. Use of the challenged judgment to enhance the
       sentence imposed on a separate conviction is not a restraint of liberty sufficient to
       permit a habeas corpus challenge to the original conviction long after the sentence
       on the original conviction has expired.

As in Hickman, the Petitioner is not currently imprisoned or restrained of liberty by his convictions
for receiving stolen property, burglary, and grand larceny. Although these convictions were used to
enhance the sentences he is currently serving, Hickman makes it clear that this is not an adequate
basis for habeas corpus relief when the sentences complained of were served and expired before the
Petitioner filed a habeas corpus petition to challenge them. Consequently, the Petitioner is not
presently “imprisoned or restrained of liberty” by his convictions for receiving stolen property,
burglary, and grand larceny. Accordingly, the Petitioner is not entitled to habeas corpus relief on this
issue.

        Similarly, we respectfully disagree with the Petitioner’s assertion that the sentence that he
is presently serving is void because it violates Tennessee Code Annotated 40-20-111(b) (2003) and
Tennessee Rule of Criminal Procedure 32(c)(3). Pursuant to Tennessee Code Annotated 40-20-
111(b):

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        “any case in which a Petitioner commits a felony while such Petitioner was released
        on bail . . . and the Petitioner 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.”

Pursuant to Tennessee Rule of Criminal Procedure Rule 32(c)(3):

        When a Petitioner is convicted of multiple offenses from one trial or when the
        Petitioner has additional sentences not yet fully served as the result of convictions in
        the same or other courts and the law requires consecutive sentences, the sentence
        shall be consecutive whether the judgment explicitly so orders or not. This rule shall
        apply: . . . (C) to a sentence for a felony committed while the Petitioner was released
        on bail and the Petitioner is convicted of both offenses.

The record indicates that the Petitioner was released on bail for his burglary conviction when he
committed the aggravated kidnaping, aggravated assault, and robbery offenses. Therefore, the
judgment ordering these sentences to be served concurrently with the prior burglary conviction
violates the provisions of Tennessee Code Annotated 40-20-111 (2003). However, the Petitioner
relies on McClaney v. Bell, 59 S.W.3d 90, 94 (2001), for the proposition that a sentence issued in
contravention of a statute “is subject to being set aside at any time, even if it has become final.”
Under McLaney, an illegal sentence that results from guilty plea proceedings warrants habeas corpus
relief because the plea agreement includes provisions that cannot be legally honored. Id. In contrast,
in the case under submission, the Petitioner was convicted by a jury and sentenced by the trial court,
and the trial court’s failure to properly mark the judgment did not deprive the Petitioner of any
expectations pursuant to a plea agreement. This differs from a case in which a petitioner is extended
a plea agreement offer and accepts a negotiated illegal sentence to his detriment. This Court has
previously held that an illegal sentence may serve as a basis for habeas relief only if the illegality of
the sentence is egregious to the point of voidness. Coleman v. Morgan, 159 S.W.3d 887, 890 (2004).
While the sentences are illegal on their face in this case, the illegality is not so egregious as to void
the sentences. Therefore, the appropriate remedy is to amend the judgment so as to comply with the
statute, not to void the judgment. State v. Thomas Braden, No. M2004-01381-CCA-R3-HC, 2005
WL 2008200, at *4 (Tenn. Crim. App., at Nashville, Aug. 19, 2005), no Tenn. R. App. P. 11
application filed, see also Barry Sotherland v. State, No. 2006 WL 407775, at *4 (Tenn. Crim. App.,
at Nashville, Feb., 17, 2006), no Tenn. R. App. P. 11 application filed. The trial court’s error is
clerical in nature and does not merit habeas relief. Therefore, the order of the habeas court
dismissing the Petitioner’s petition should be affirmed. As in Thomas Braden, the Petitioner’s
appropriate remedy is for the trial court to amend the judgments to reflect that the Petitioner must
serve his sentences in cases 85-02083, 85-02084, and 85,02085 consecutively to the sentence in his
case 85-01210.


                                           III. Conclusion

        Based upon the aforementioned reasoning and authorities, we affirm the habeas court’s

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dismissal of the Petitioner’s writ of habeas corpus, and remand for the entry of corrected judgments
as indicated above.

                                                          ________________________________
                                                          ROBERT W. WEDEMEYER, JUDGE




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