         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs July 13, 2004

                 RICKEY HOGAN v. DAVID G. MILLS, WARDEN

                 Direct Appeal from the Circuit Court for Lauderdale County
                          No. 5806 Joseph H. Walker, III, Judge



                     No. W2004-00182-CCA-R3-HC - Filed July 21, 2004


The petitioner filed a petition for habeas corpus relief claiming that the judgments entered are void.
He contends that he was on parole when the current offenses were committed; therefore, the
concurrent sentences that he received are illegal. We conclude that in order to receive relief, the fact
that the petitioner was on parole when he pled guilty must be proved by satisfactory proof contained
in the record or proceedings underlying the convictions sought to be set aside. We reverse the trial
court’s summary dismissal and remand for appointment of counsel and a hearing to determine
whether the record of the underlying convictions or proceedings contained satisfactory proof that the
petitioner was on parole at the time he committed second degree murder and robbery with a deadly
weapon.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN , JJ., joined.

Rickey Hogan, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Kathy D. Aslinger, Assistant Attorney
General, for the appellee, State of Tennessee.


                                              OPINION

        On December 11, 2003, the petitioner, Rickey Hogan, filed a petition for habeas corpus relief
in the Lauderdale County Circuit Court. Although the petitioner used a preprinted federal habeas
corpus form to prepare his petition, he raised state claims. It appears from the judgments attached
to the petition that the petitioner pled guilty to second degree murder and robbery with a deadly
weapon on May 17, 1985. He received concurrent forty-year sentences for the offenses. In his
petition, the petitioner asserts that the judgments are void because the concurrent sentences are
illegal. The habeas court summarily dismissed the petition, finding that the petitioner had failed to
establish a claim for habeas corpus relief. The petitioner timely filed his notice of appeal.

        The petitioner claims that the trial court erred in ruling on his petition because he filed it on
a federal habeas corpus form. He asks this Court to remand the case back to the circuit court,
enabling him to file the petition in the proper form. While we acknowledge that the petitioner used
a federal form, he filed his petition in state court and raised state habeas corpus claims. “It is well
settled that a trial court is not bound by the title of the pleading, but has the discretion to treat the
pleading according to the relief sought.” Norton v. Everhart, 895 S.W.2d 317, 319 (Tenn. 1995).
We conclude that the trial court properly considered the petition.

        When reviewing a petition for habeas corpus relief, the determination of whether relief
should be granted is a question of law. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001) (citing Hart
v. State, 21 S.W.3d 901, 903 (Tenn. 2000)). Thus, this Court’s review is de novo with no
presumption of correctness given to the findings of the court below. Id. The grounds upon which
habeas corpus relief is warranted are decidedly narrow. The writ will issue only when it appears
upon the face of the judgment or the record of the proceedings upon which the judgment is rendered
that a court lacked jurisdiction or authority to sentence a defendant or that the sentence has expired.
Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000); Archer v. State, 851 S.W.2d 157, 164
(Tenn. 1993). A habeas corpus petition may be used to challenge judgments that are void, not
merely voidable. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). 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.” Id. (citations omitted). By contrast,
a voidable conviction or sentence is one which is facially valid and thus requires proof beyond the
face of the record or judgment to establish its invalidity. Id. The burden of proof that the judgment
or sentence is “void,” rather than “voidable,” rests with the petitioner. Wyatt v. State, 24 S.W.3d
319, 322 (Tenn. 2000).

        A sentence imposed in direct contravention of the law is illegal and therefore “void or
voidable depending upon whether the illegality of the sentence is evident on the face of the judgment
or the record of the underlying proceedings.” McLaney, 59 S.W.3d at 94 (citing Stephenson, 28
S.W.3d at 911). The trial court sentenced the petitioner to concurrent sentences of forty years for
second degree murder and forty years for robbery with a deadly weapon. The petitioner alleges that
the concurrent sentences are illegal in that they should be served consecutively rather than
concurrently. The petitioner submitted documentation with his habeas corpus petition indicating that
he was on parole for a felony when the current offenses were committed. Thus, the concurrent
sentences for the present offenses would be in direct contravention to Tennessee Rule of Criminal
Procedure 32(c)(3), which provides the following: “Where a defendant is convicted of multiple
offenses from one trial . . . the sentence shall be consecutive whether the judgment explicitly so
orders or not.” Rule 32(c)(3) applies “to a sentence for a felony committed while on parole for a
felony[.]”




                                                  -2-
       After reviewing the habeas corpus petition, it appears that the petitioner’s allegations should
survive summary dismissal and that appointment of counsel is appropriate.

                                          CONCLUSION

        We reverse the trial court’s summary dismissal of the petition and remand for appointment
of counsel and further hearing. The trial court, upon remand, shall determine whether the records
of the convictions of second degree murder and robbery with a deadly weapon contain satisfactory
proof that the petitioner was on parole status at the time of those offenses.




                                                       ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




                                                 -3-
