         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 19, 2003

            JOHNNY L. McGOWAN, JR. v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Davidson County
                        No. 00C-3729    Thomas W. Brothers, Judge



                     No. M2003-00268-CCA-R3-CO - Filed April 7, 2004


The petitioner directly appeals the dismissal of his petition of writ of habeas corpus. The judgment
of the habeas court summarily dismissing the petition for writ of habeas corpus is reversed, and this
case is remanded to the Circuit Court of Davidson County for appointment of counsel and an
evidentiary hearing. If the habeas corpus court finds the sentence to be illegal, the court must then
remand the case to the Rutherford County Criminal Court, where the convictions occurred. On
remand to the original convicting court, the petitioner’s guilty plea may be withdrawn if concurrent
sentencing was a condition of his plea agreement.

     Tenn. R. App. 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 JOSEPH M. TIPTON and
ALAN E. GLENN , JJ., joined.

Johnny McGowan, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; and Mark A. Hudson, Senior Counsel, for the appellee, State of Tennessee.

                                            OPINION

         On January 24, 1994, the petitioner, Johnny L. McGowan, Jr., pled guilty to the following
offenses: aggravated arson, arson, six counts of reckless endangerment with a deadly weapon, and
two counts of vandalism. The petitioner received a sentence of twenty years for aggravated arson,
five years for arson, and one year on each of the eight remaining counts. All sentences were ordered
to run concurrently with the twenty-year sentence for aggravated arson. The judgment also reflects
that the twenty-year sentence was ordered to run concurrently with a prior, apparently unrelated case
in Rutherford County, bearing case number 27110. The record is devoid of any details concerning
case number 27110.
         On December 28, 2000, the petitioner filed a writ of habeas corpus, alleging three grounds
for relief:
         a. The sentence was void because it was ordered to run concurrent to the prior
             unrelated offense, in contravention of statutory law;
         b. Counsel was ineffective for coercing the petitioner to enter into an illegal plea;
             and
         c. The petitioner’s continued incarceration is unconstitutional.

        The trial court, on October 11, 2001, entered an order dismissing the petitioner’s writ of
habeas corpus. The order characterized the sentence in this cause as void and illegal, due to its
contravention of statutory law which mandated consecutive sentencing to the prior, unrelated
offense. However, the trial court noted that the petitioner had not challenged the validity of the
sentence in case number 27110 and presumed it valid. The trial court further noted that the Criminal
Court of Rutherford County retained authority to correct the illegal sentence. The petitioner filed
a notice of appeal on January 24, 2003.

        The State contends that the petitioner’s appeal should fail due to the untimely filing of the
notice of appeal. See Tenn. R. App. P. 3(e) and 4(a). However, in the interest of justice, we have
decided to waive the timely filing of the notice of appeal. See id. 4(a).

         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 a statute is void and illegal. State v. Burkhart,
566 S.W.2d 871, 873 (Tenn. 1978). The petitioner alleges, and the trial court apparently agreed, that
the felony offenses in case 27457 were committed while the petitioner was out on bond for case
27110. Thus, the concurrent sentences would be in direct contravention to Tennessee Code
Annotated section 40-20-111(b), which provides the following: “In any case in which a defendant
commits a felony while such defendant was released on bail, . . . 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.”




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         In McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001), the habeas petitioner filed a petition in the
Davidson County Criminal Court alleging that he had been released on bail on a charge out of
Jefferson County when he committed two additional felonies in that county. The petitioner
submitted a plea agreement for all these charges to the Jefferson County Circuit Court. The plea
agreement contained a provision that all three of the petitioner’s sentences were to be served
concurrently. The petitioner further alleged that, because he was on bail for one felony when he
committed two others, his sentences were illegal, because Tennessee Code Annotated section 40-20-
111(b) and Tennessee Rule of Criminal Procedure 32(c)(3)(C) mandated consecutive sentencing
under such circumstances. In light of the fact that his agreement to serve concurrent sentences was
illegal, the petitioner maintained his pleas of guilty were not knowingly or voluntarily entered and
should be set aside.

        The Tennessee Supreme Court held that if McLaney’s allegations about being on bail when
he committed two additional felonies were true, then concurrent sentences would be in direct
contravention of the law, illegal, void, and subject to review by way of a writ of habeas corpus. The
supreme court therefore remanded the case to the Davidson County Circuit Court and directed that
the court appoint counsel and conduct a hearing with respect to whether McLaney was indeed free
on bail at the time he alleged. The court noted that if the Davidson County habeas court determined
that the allegations were true, the Davidson County court should declare the concurrent sentences
void and then transfer the case to the Jefferson County trial court for imposition of a legal sentence
should the petitioner agree, or if no legal plea agreement could be reached, the petitioner must be
allowed to withdraw the original plea. McLaney, 59 S.W.3d at 92-95.

        We are unable to ascertain from the record before us whether the petitioner was out on bond
for case 27110 when any of the other felony offenses were committed. Additionally, the petitioner
alleges that his guilty plea was a result of a plea bargain. Included in the plea agreement was the
provision that all of the sentences would be served concurrently. However, as the trial judge did not
hold a hearing on this issue, we cannot resolve it on the record before us. Therefore, the judgment
of the habeas court summarily dismissing the petition for writ of habeas corpus is reversed, and this
case is remanded to the Circuit Court of Davidson County for appointment of counsel and an
evidentiary hearing. The habeas court noted in its order that the “only relief afforded a petitioner
when seeking habeas corpus relief is discharge from custody.” See Tenn. Code Ann. § 29-21-122(a).
However, “although the commitment of the person detained may have been irregular, still, if the
court or judge is satisfied, from the examination, that the person ought to be held to bail, or
committed, either for the offense charged, or any other, the order shall be made accordingly.” Id.
§ 29-21-123. Apparently, the habeas court concluded that the petitioner was being validly held under
the sentence in case 27110. However, the petitioner alleges that the sentence in that case expired
before the filing of his habeas corpus petition. The record before us does not contain any
information as to the specifics of the sentence in case 27110. The petitioner filed a motion for
appointment of counsel and clearly had a right to appointed counsel if the court found him to be
indigent. Tenn. Sup. Ct. R. 13, § 1(d)(4); Tenn. Code Ann. § 8-14-205. Had counsel been
appointed, presumably he would have brought forth documentation concerning sentence 27110.
Upon our remand, if the habeas corpus court finds the sentence to be illegal and finds that the


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sentence in case 27110 has expired, the court must then remand the case to the Rutherford County
Criminal Court, where the convictions occurred. On remand to the original convicting court, the
petitioner’s guilty plea may be withdrawn if concurrent sentencing was a condition of his plea
agreement. See e.g. McConnell v. State, 12 S.W.3d 795, 798 (Tenn. 2000); Henderson v. State, 220
Tenn. 520, 419 S.W.2d 176 (1967).




                                                    ___________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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