         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 22, 2005

             DWIGHT K. PRITCHARD v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                            No. 3612    Cheryl Blackburn, Judge



                  No. M2005-00594-CCA-R3-HC - Filed December 16, 2005


The Petitioner, Dwight K. Pritchard, appeals the summary dismissal of his petition for a writ of
habeas corpus. The Petitioner contends that the guilty pleas he entered were not knowing and
voluntary because the sentences imposed by the trial court are illegal. Following a thorough review
of the record and applicable law, we reverse the judgment of the trial court summarily dismissing
the petition. We remand this case to the trial court for further proceedings.


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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH , J., joined.
DAVID G. HAYES, J., filed a dissenting opinion.

Dwight K. Pritchard, Pro Se.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Bret Gunn, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION


                                          BACKGROUND

        The trial court in this habeas corpus proceeding did not grant the Petitioner’s request for
counsel, and the Petitioner is proceeding pro se on appeal. The record on appeal before this Court
contains only the petition and the trial court’s order of dismissal. The Petitioner attached to his
petition copies of five judgments of conviction, each entered on a plea of guilty, rendered in the
Criminal Court of Shelby County. In the habeas corpus petition filed in the trial court, the Petitioner
argued that these guilty pleas were not knowing and voluntary because the concurrent sentences
imposed by the sentencing court as a result of the pleas were in direct contravention of Rule 32(c)(3)
of the Tennessee Rules of Criminal Procedure and Tennessee Code Annotated section 40-20-111(b).

        The copies of the judgments provided by the Petitioner reflect that he pleaded guilty in
Shelby County on September 24, 1998, to two counts of aggravated robbery, two counts of
possession with intent to sell over 0.5 grams of cocaine, and one count of vandalism. The judgments
further reflect that the Petitioner received ten year sentences for each aggravated robbery and
possession conviction and a two year sentence for the vandalism conviction, each sentence ordered
to be served concurrently for an effective ten year sentence. The offense date for each conviction
is different. According to the Petitioner, after he was charged with the first offense, aggravated
robbery (offense date of November 16, 1996), he was released on bail but was then subsequently
arrested and charged with the second offense of aggravated robbery (offense date of February 13,
1997). The Petitioner states that he was released on bail again after the second charge but was,
thereafter, arrested and charged with possession (offense date of November 14, 1997). The
Petitioner apparently was again released on bail before he was charged with vandalism (offense date
of August 30, 1997). Finally, the Petitioner states that he was on bail yet again when he was arrested
and charged with possession for the second time (offense date of March 24, 1998).

        In its order of dismissal, the trial court recounted the Petitioner’s statement of facts which
we have attempted to summarize above. The court noted that the “Petitioner is correct that sentences
are to be run consecutively when a defendant is ‘sentence[d] for a felony where the defendant was
released on bail and the defendant is convicted of both offenses.’” The trial court quoted the
controlling language from Tennessee Rule of Criminal Procedure 32(c)(3)(C), and also cited our
supreme court’s opinion in McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001). However, the court
ultimately denied habeas corpus relief to the Petitioner because the Petitioner failed to provide the
court with sufficient documentation showing that he was indeed released on bail when he committed
the subsequent offenses.

                                             ANALYSIS
        The Tennessee Constitution guarantees a convicted criminal defendant the right to seek
habeas corpus relief. See Tenn. Const. Art. I, § 15. However, the grounds upon which habeas
corpus relief will be granted are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A
petition for habeas corpus relief may only be granted when the judgment is shown to be void, rather
than merely voidable. Id. A judgment is void only when it appears upon the face of the judgment
or the record of the proceedings upon which the judgment is rendered that the convicting court was
without jurisdiction or authority to sentence the defendant or that the defendant’s sentence has
expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). A sentence imposed in direct
contravention of a statute is illegal and, thus, void. Stephenson v. Carlton, 28 S.W.3d 910, 911
(Tenn. 2000). On the other hand, a voidable judgment or sentence is one which is facially valid and
which requires evidence beyond the face of the judgment or the record of the proceedings to establish
its invalidity. Taylor, 995 S.W.2d at 83. A petitioner bears the burden of establishing a void
judgment or illegal confinement by a preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319,
322 (Tenn. 2000). Furthermore, it is permissible for a trial court to summarily dismiss a habeas


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corpus petition, without the appointment of counsel and without an evidentiary hearing, if there is
nothing on the face of the record or judgment to indicate that the convictions or sentences addressed
therein are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

       Relying upon the ruling in McLaney, as he did in the habeas court, the Petitioner advances
the same argument on appeal: his guilty pleas were not knowing and voluntary because the
concurrent sentences imposed by the sentencing court as a result of the pleas were in direct
contravention of the law. Assuming the Petitioner’s factual allegations are true, the sentencing court
was required to impose consecutive rather than concurrent sentences. As mandated by statute:

        In any case in which a defendant commits a felony while such defendant was released
        on bail in accordance with the provisions of chapter 11, part 1 of this title, and the
        defendant 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.


Tenn. Code Ann. § 40-20-111(b). Furthermore, Rule 32(c)(3) of the Rules of Criminal Procedure
provides:

        Where a defendant is convicted of multiple offenses from one trial or where the
        defendant has additional sentences not yet fully served as the result of the convictions
        in the same or other court and the law requires consecutive sentences, the sentence
        shall be consecutive whether the judgment explicitly so orders or not. This rule shall
        apply:

                (A) To a sentence for a felony committed while on parole for a felony;
                (B) To a sentence for escape or for a felony committed while on escape;
                (C) To a sentence for a felony where the defendant was released on bail and
        the defendant is convicted of both offenses; and
                (D) Any other ground provided by law.

(Emphasis added).

         The habeas corpus court dismissed the petition in this case because the Petitioner did not
provide factual documentation to support his argument. Again, the burden rests with a petitioner to
prove by a preponderance of the evidence that his sentences are illegal. Wyatt, 24 S.W.3d 322. If
a petitioner fails to meet this burden, he or she may be denied habeas corpus relief. See Archer, 851
S.W.2d at 164. Although the Petitioner attached to his petition copies of the Shelby County
judgments of his convictions, the Petitioner did not present any evidence to the trial court to establish
that he was, in fact, on bail during the commission of the offenses at issue. Accordingly, the trial
court arguably ruled appropriately under the general principles of habeas corpus law. However, we
believe the supreme court’s holding in McLaney mandates a different result.


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        The procedural history of the habeas corpus case before us is almost identical to the history
set forth in McLaney. The petitioner in McLaney, proceeding without the benefit of counsel, filed
a habeas corpus petition challenging the constitutionality of his guilty pleas in light of the trial
court’s imposition of concurrent sentences in contravention of Tennessee Code Annotated section
40-20-111(b) and Tennessee Rule of Criminal Procedure 32(c)(3)(C). 59 S.W.3d at 92. The
petitioner asserted in his petition that he was released on bail for one charge of rape when he was
subsequently charged with third degree burglary and another offense of rape. Id. The petitioner
thereafter pled guilty to all three charges and the trial court imposed concurrent sentences. Id.

        The habeas corpus court in McLaney denied relief on the petitioner’s claim. Id. This Court
affirmed the judgment on appeal. Jackie McLaney v. State, No. M1998-00187-CCA-R3-CD, 1999
WL 1073689 (Tenn. Crim. App., Nashville, Nov. 29, 1999). This Court held that, if the facts alleged
by the petitioner were true, habeas corpus relief would not be available even though the sentences
were void because the habeas court, which was not the same court as the sentencing court, did not
possess the power under its habeas corpus jurisdiction to allow the withdrawal of the guilty pleas or
correct the illegal sentences. Id. at * 2. Our supreme court disagreed. The supreme court concluded
that the petitioner’s sentence was subject to being set aside at any time if the facts established that
the sentence imposed by the trial court was in direct contravention of the statute. McLaney, 59
S.W.3d at 94 (citing McConnell v. State, 12 S.W.3d 795, 798 (Tenn. 2000)). The court also noted,
however, that habeas corpus relief would be available only if it was evident on the face of the
judgment or the record of the underlying proceedings that the sentence was illegal. Id. Although
the petitioner in McLaney apparently did not present proof that he was, in fact, on bail during the
commission of the subsequent offenses, the supreme court decided it was error for the habeas court
to summarily dismiss the petition. Id. Our supreme court stated:

       The trial court in this case, finding no clear proof in the documents submitted with
       the petition that the sentence was void, dismissed the petition. Had McLaney been
       represented by counsel, we would find no error in this dismissal. Had an attorney
       been appointed, if the record of the underlying proceedings clearly showed that the
       latter rape and burglary offenses were committed while McLaney was on bail,
       appointed counsel presumably would have brought those records to the attention of
       the court, and a determination whether the judgment was void could have been
       resolved on the merits. Indeed, McLaney filed a motion for appointment of counsel
       and clearly had a right to appointed counsel if the trial court found him to be indigent.
       Tenn. Sup. Ct. R. 13, § 1(d)(4); Tenn. Code Ann. § 8-14-205 (1997). Under these
       circumstances, the trial court erred in failing to consider the motion for appointment
       of counsel prior to dismissal of the case.

Id. (footnote omitted). The supreme court remanded the case to the habeas court for appointment
of counsel and a determination of whether the petitioner was on bail when he committed the latter
offenses. Id. at 95. The court stated that if the record of the underlying convictions showed the
petitioner was on bail, “then the sentence is void and the habeas corpus court is mandated by statute



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to declare it so.” Id. at 94. The habeas corpus court would then transfer the case to the convicting
court to decide whether the petitioner’s guilty pleas were knowing and voluntary. Id. at 95.

        The State, in its brief in the present case, contends the trial court properly denied habeas
corpus relief because the Petitioner failed to meet his initial burden of demonstrating that his
sentence is illegal and void. The State notes that the Petitioner relies upon the holding in McLaney
in support of his claim, however, the State neglects to distinguish the facts in this case from the facts
in McLaney. Similarly, the habeas corpus court cited McLaney in its dismissal order but failed to
comment on the Tennessee Supreme Court’s specific holding. Given the similarities between
McLaney and the case currently before this Court, we must reach the same result our supreme court
reached in McLaney. We are also guided in our decision by this Court’s rulings in other similar
appeals which arose following McLaney. See, e.g., Charles G. Summers v. State, No. M2004-
02806-CCA-R3-HC, 2005 WL 1950298 (Tenn. Crim. App., Nashville, Aug. 12, 2005); Gregory
Eidson v. State, No. M2005-00150-CCA-R3-HC, 2005 WL 1353310 (Tenn. Crim. App., Nashville,
Jun. 8, 2005); Kelvin Wade Cloyd v. State, No. E2004-02283-CCA-R3-HC, 2005 WL 1330842
(Tenn. Crim. App., Knoxville, Jun. 6, 2005); Anthony K. Goods v. Tony Parker, Warden, No.
W2003-02914-CCA-R3-HC, 2004 WL 2309901 (Tenn. Crim. App., Jackson, Oct. 13, 2004);
Dewayne Cathey v. State, No. W2003-00411-CCA-R3-CO, 2004 WL 1686869 (Tenn. Crim. App.,
Jackson, Jul. 28, 2004); Robert A. Atkins v. James M. Dukes, Warden, No. W2001-01311-CCA-R3-
CD, 2002 WL 1558511 (Tenn. Crim. App., Jackson, Jan. 8, 2002).

                                           CONCLUSION
        Accordingly, the judgment of the trial court summarily dismissing the petition for a writ of
habeas corpus is reversed, and this case is remanded to the Criminal Court of Davidson County for
appointment of counsel and an evidentiary hearing in accordance with McLaney. If, following the
hearing, the trial court determines that Petitioner’s sentences are void, the court must then remand
the case to the Criminal Court of Shelby County for further proceedings consistent with McLaney.1



                                                              ___________________________________
                                                              DAVID H. WELLES, JUDGE




        1
          If this matter is eventually remanded to the Shelby County Criminal Court, that court shall determine,
depending on whether or not the guilty pleas are withdrawn, if the Petitioner shall be released on bail or remain in
custody pending further proceedings on the petition. See McLaney, 59 S.W .3d at 94-95 (citing Tenn. Code Ann. §§ 29-
21-122 and 123).

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