        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 3, 2014

                      JOE ROSS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 0104651    Honorable Chris Craft, Judge


                No. W2013-02555-CCA-R3-HC - Filed August 13, 2014


The Petitioner, Joe Ross, appeals the Shelby County Criminal Court’s denial of his petition
for writ of habeas corpus. The Petitioner entered guilty pleas to five counts of aggravated
robbery, four counts of especially aggravated kidnapping, and one count of aggravated rape,
for which he received an effective sentence of 25 years confinement. On appeal, the
Petitioner argues that his sentence is illegal on the face of the judgment because it does not
include mandatory supervision for life. Because the Petitioner’s judgment does not reflect
the statutory requirement of mandatory lifetime community supervision, we conclude that the
judgment for aggravated rape is illegal and void. We vacate the Petitioner’s sentence for
aggravated rape and remand to the habeas court for an evidentiary hearing to determine
whether the illegal sentence was a bargained-for element of the Petitioner’s plea agreement.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN, J.,
joined and J EFFREY S. B IVINS, J., not participating.

Blake D. Ballin, Memphis, Tennessee, for the Defendant-Appellant, Joe Ross.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and J. Ross Dyer, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

       On April 26, 2002, the Petitioner entered guilty pleas to five counts of robbery, four
counts of especially aggravated kidnapping, and one count of aggravated rape. Pursuant to
the plea agreement, the Petitioner received concurrent sentences of 8 years for each
aggravated robbery conviction, 15 years for each especially aggravated kidnapping
conviction, and 25 years for aggravated rape with all sentences to be served concurrently for
an effective sentence of 25 years.

        On April 17, 2013, the Petitioner filed his first pro se petition for writ of habeas
corpus in the Lauderdale County Circuit Court, arguing, inter alia, that his conviction for
aggravated rape is void because the trial court failed to advise him that he was subject to
community supervision for life upon the expiration of his sentence. On April 25, 2013, the
trial court entered an order summarily dismissing the petition after concluding that the
convicting court “was not without jurisdiction or authority to sentence the defendant” and
that “even if the defendant was correct in his allegations, the conviction for aggravated rape
would be voidable, not void, and the proper court would be the sentencing court to petition
to withdraw the plea of guilty.”

        On May 20, 2013, the Petitioner filed a pro se notice of appeal to this court. On June
14, 2013, this court, upon a motion by the Petitioner, entered an order remanding the matter
to the Lauderdale County Circuit Court to determine whether the petitioner should be
declared indigent for the purposes of appeal. On June 24, 2013, the Lauderdale County
Circuit Court entered an order declaring the Petitioner indigent for the purposes of appeal.
Thereafter, the Petitioner filed a timely pro se brief and subsequent response brief in this
court.1

       On August 1, 2013, while the Petitioner’s initial appeal was pending in this court, the
Petitioner, through counsel, filed a second petition for writ of habeas corpus in the Shelby
County Criminal Court, alleging that his judgment for aggravated rape is “void on its face.”
The Petitioner acknowledged that he had previously filed a petition for habeas corpus in
Lauderdale County Circuit Court but maintained that the instant petition “is clearly
distinguishable” from the previous petition, and therefore, is not barred by the prior order of
the Lauderdale County Circuit Court denying relief. The State filed a motion to dismiss on
September 25, 2013, and a hearing was held on the matter on September 27, 2013. On
November 4, 2013, the trial court entered an order finding that the Petitioner’s claims had
been “previously decided against the [P]etitioner in his petition filed in Lauderdale County.”
The court further found that even if the merits of the Petitioner’s claims were considered,


        1
           The State asserts in its brief that the Petitioner abandoned his initial appeal in case No. W2013-
01220-CCA-R3-HC because he failed to take any further action after the trial court’s order declaring the
Petitioner indigent; therefore, the State argues, the Petitioner’s initial appeal should be dismissed. We are
confounded by this argument given our review of the record. As set out above, the Petitioner timely filed
a brief in this court after being granted an extension. Thereafter, he moved to have the cases consolidated
under Rule 16(b) of the Tennessee Rules of Appellate Procedure.

                                                    -2-
“the fact that ‘community supervision for life’ is not indicated on the face of the judgment
does not render the judgment void, but merely voidable.” The court summarily dismissed
the petition but entered a corrected judgment indicating the requirement for community
supervision for life.

       The Petitioner filed a timely notice of appeal from the Shelby County Criminal
Court’s order on November 5, 2013. On December 11, 2013, the Petitioner filed a motion
to consolidate his previous appeal of denial of habeas corpus relief from Lauderdale County
with his subsequent appeal of the same from Shelby County. The motion to consolidate was
granted by this court on December 27, 2013.

                                         ANALYSIS

        On appeal, the Petitioner argues that his sentence is illegal on the face of the judgment
because it does not include mandatory supervision for life. The State responds that the trial
court properly dismissed the matter because it was previously litigated and decided against
the Petitioner in Lauderdale County. Additionally, the State contends that even if the merits
of the Petitioner’s claims were considered, community supervision for life was not a material
element of the Petitioner’s guilty plea, and therefore, he is not entitled to relief.

       “The determination of whether habeas corpus relief should be granted is a question
of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21
S.W.3d 901, 903 (Tenn. 2000)). Therefore, our review of the habeas corpus court’s decision
is de novo. Hart, 21 S.W.3d at 903.

        A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15
of the Tennessee Constitution. Tenn. Const. art. I, § 15; see T. C. A. § 29-21-101 to -130.
However, the grounds upon which a writ of habeas corpus may be issued are very narrow.
Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). “Habeas corpus relief is available in
Tennessee only when ‘it appears upon the face of the judgment or the record of the
proceedings upon which the judgment is rendered’ that a convicting court was without
jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of
imprisonment or other restraint has expired.” Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 337 (1868)). “[T]he purpose of
a habeas corpus petition is to contest void and not merely voidable judgments.” Potts v.
State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsom v. Henderson, 424
S.W.2d 186, 189 (Tenn. 1968)). “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.” Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton,



                                               -3-
978 S.W.2d 528, 529 (Tenn. 1998); Archer, 851 S.W.2d at 161–64). However, as the
Tennessee Supreme Court stated in Hickman v. State:

       [A] voidable judgment is facially valid and requires the introduction of proof
       beyond the face of the record or judgment to establish its invalidity. Thus, in
       all cases where a petitioner must introduce proof beyond the record to establish
       the invalidity of his conviction, then that conviction by definition is merely
       voidable, and a Tennessee Court cannot issue the writ of habeas corpus under
       such circumstances.

Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citations, quotations, and
emphasis omitted); see Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (“Summers I”)
(citation omitted). Moreover, it is the petitioner’s burden to demonstrate, by a preponderance
of the evidence, that the judgment is void or that the confinement is illegal. Wyatt v. State,
24 S.W.3d 319, 322 (Tenn. 2000). If this burden is met, the Petitioner is entitled to
immediate release. State v. Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986) (citing
Ussery v. Avery, 432 S.W.2d 656, 658 (Tenn. 1968)).

        If the habeas corpus court determines from the petitioner’s filings that no cognizable
claim has been stated and that the petitioner is not entitled to relief, the petition for writ of
habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20. Further, the
habeas corpus court may summarily dismiss the petition without the appointment of a lawyer
and without an evidentiary hearing if there is nothing on the face of the judgment to indicate
that the convictions are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994), superseded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-
00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998). “The
petitioner bears the burden of providing an adequate record for summary review of the
habeas corpus petition, including consideration of whether counsel should be appointed.”
Summers, 212 S.W.3d at 261.

        As an initial matter, the State asserts that summary dismissal was proper because the
Petitioner’s claim was previously determined by the Circuit Court of Lauderdale County. In
its brief, the State argues that “[w]hile the Petitioner attempts to differentiate his previous
filing from the instant filing . . . , the sum and substance of the [P]etitioner’s claim is
identical,” and therefore, the Petitioner is not entitled to relief. Interestingly, in the
Petitioner’s initial appeal, No. W2013-01220-CCA-R3-CD, the State argued in its brief that
this court should not address the Petitioner’s claim that his judgment is void on its face for
failing to impose the mandatory requirement of community supervision for life because “that
argument was not before the habeas corpus court.” Instead, the State maintained, the
Petitioner had originally argued that he entered an unknowing and involuntary guilty plea

                                               -4-
because he was never informed that his guilty plea would subject him to community
supervision for life. The State noted that the Petitioner “has the ability to file a new petition
for habeas corpus relief in the lower court containing this argument so the habeas corpus
court may address this issue,” but urged this court to affirm the habeas corpus court’s denial
based on the Petitioner’s original allegations.

        Upon review of the Petitioner’s initial petition for habeas corpus relief and the trial
court’s summary dismissal of the petition, we agree with the State’s original characterization
of the Petitioner’s claims. The petition asserts that the trial court “over exceeded its
conferred jurisdiction and authority by way of sentencing the Petitioner to a sentence in direct
contravention of the statutory guidelines, and further entering a plea of guilty against the
Petitioner without fully advising the Petitioner of the punitive consequences of his plea.”
The trial court appears to have interpreted the Petitioner’s claim as one grounded on an
involuntary guilty plea, which is not a cognizable claim for habeas corpus relief. See Archer
851 S.W.2d at 163. The court concluded that “[e]ven if the [Petitioner] was correct in his
allegations, the conviction for aggravated rape would be voidable, not void, and the proper
court would be the sentencing court to petition to withdraw the guilty plea.” The court also
noted that “[i]f the petition is treated as one for post-conviction relief, this court has no
jurisdiction,” further confirming that the trial court interpreted the Petitioner’s claims as
challenging the voluntariness of his guilty plea, which is typically brought in an action for
post-conviction relief. See id. at 164 (noting that a petition for habeas corpus relief that
requests relief that may only be granted pursuant to the post-conviction statutes may properly
be treated as a petition for post-conviction relief). Accordingly, we decline the State’s
invitation to affirm the summary dismissal of the Petitioner’s claims as “previously
determined” and turn to consider the merits of the Petitioner’s claim.

        In the instant case, the Petitioner entered a guilty plea to one count of aggravated rape
under Tennessee Code Annotated section 39-13-502. Consequently, pursuant to Tennessee
Code Annotated section 39-13-524(a)(1), community supervision for life was required as part
of his sentence. As the Petitioner correctly points out in his petition, however, his judgment
form for aggravated rape does not impose the mandated community supervision for life. This
court has repeatedly held that “[t]he failure to include the community supervision for life
provisions render[s] the defendant[’s] sentences illegal.” State v. Bronson, 172 S.W.3d 600,
601-602 (Tenn. Crim. App. 2005). Accordingly, we conclude that the Petitioner’s sentence
for aggravated rape is illegal on the face of the judgment because it does not include the
mandatory supervision for life provision. See Tony Hoover v. Henry Steward, Warden, No
W2011-02453-CCA-R3-HC, 2013 WL 238196, at *3 (Tenn. Crim. App. Jan. 18, 2013)
(concluding that the Petitioner’s sentences for rape were illegal on the face of the judgments
because they did not include the mandatory supervision for life provision).



                                               -5-
        As a general rule, when a plea agreement includes an illegal sentence, a petitioner is
entitled to withdraw the guilty plea. Summers I, 212 S.W.3d at 258 (citing McLaney, 59
S.W.3d at 94-95). This rule, however, is not without exceptions. Summers I, 212 S.W.3d
at 258. In Smith, the Tennessee Supreme Court determined that despite an illegal sentencing
component contained in the plea agreement, the conviction remained intact because the
record of the underlying proceedings did not “demonstrate on its face that the illegal
provision of early release eligibility was a bargained for element of [the] plea.” Smith, 202
S.W.3d at 130. To the contrary, the Smith court found that Smith “actually bargained for”
a legal sentence but the trial court “made an error sua sponte and independent of the plea
bargain.” Id. In upholding Smith’s conviction, the court reasoned that Smith’s guilty plea
and resulting conviction were not “based on an illegal sentence and, consequently, are not
infected with the illegality.” Id. Accordingly, the court concluded that “[u]nder these
circumstances,” Smith’s sentence was void but his conviction remained intact. Id.

        Relying on Smith, the State argues that notwithstanding the illegality of the
Petitioner’s sentence, the Petitioner is not entitled to relief because he has not shown that
failure to include community supervision for life was a material element of the guilty plea.
We reject this argument. Although a petitioner must attach to his petition the “legal process”
alleged to cause the Petitioner’s restraint, see T.C.A. § 29-21-107(b)(2), “[n]o case says that
the petitioner must attach to his petition documentation showing that he is entitled to the
broader remedy of invalidating the conviction because the illegal sentence was central to the
plea agreement.” Summers II, 267 S.W.3d at 6. Rather, Summers I “separated the issue of
the proper procedure for presenting an illegal sentence claim from the remedy.” Id. Thus,
“[w]hen a petitioner attaches to his petition documentation from the record showing that his
sentence is indeed illegal, the trial court must appoint counsel and hold a hearing to
determine the scope of the remedy available.” Id.; see also, Tony Hoover, 2013 WL 238196,
at *3. Here, the record shows that the Petitioner properly attached the judgment to his
petition showing that his sentence is illegal. “The fact that the [P]etitioner has not shown by
documents attached to his petition that the illegal sentence was a material bargained-for
element of his plea agreement does not alter the fact that . . . he is entitled to some remedy
in the form of habeas corpus relief.” Summers II, 267 S.W.3d at 4. Accordingly, the habeas
court erred in summarily dismissing the petition, and we must remand to the habeas corpus
court for an evidentiary hearing on the matter.

        Although the court summarily dismissed the Petitioner’s petition, the court, sua
sponte, entered a corrected judgment form. The court correctly noted that a trial court may
correct an illegal sentence at any time. See State v. Nagele, 353 S.W.3d 112, 119-120 (Tenn.
2013). In the particular circumstances of this case, however, the correction was improper.
First, although the Shelby County Criminal Court is also the court of conviction, the court
was acting within its capacity as the habeas corpus court when it entered the corrected

                                              -6-
judgment. The proper procedure upon a finding of a void judgment by the habeas corpus
court is to transfer the case to the convicting court for entry of a corrected judgment. See
Smith v. Lewis, 202 S.W.3d 124, 130 (Tenn. 2006) (remanding to the “original court of
conviction for entry of a corrected judgment”); McLaney v. Bell, 59 S.W.3d 90, 95-96 (Tenn.
2001), rev’d on other grounds Summers I, 212 S.W.3d at 262 (directing the habeas corpus
court to “promptly transfer” the case to the convicting court upon a finding that the judgment
is void). Thus, correction of the sentence by the habeas corpus court was improper. Further,
as discussed at length in our opinion, upon a showing that the judgment was void, the
Petitioner was entitled to an evidentiary hearing to determine the proper remedy, withdrawal
of the guilty plea or entry of a corrected judgment. The court’s correction of the judgment
was premature.

      In Summers II, this court provided a procedural guideline for the habeas corpus court
on remand:

       At such a hearing, the issue would be whether the illegal sentence was a
       material element of a plea agreement with the State, and the proof would be
       limited to the face of the record of the underlying proceedings. If the record
       establishes that the illegal sentence was not a bargained-for element of the plea
       agreement, then . . . the sentence is void, but the conviction remains intact, and
       the only remedy is correction of the sentence. If the record establishes that the
       illegal sentence was a material part of a package deal, then the petitioner is
       entitled to withdraw his plea if he cannot reach an agreement with the State.
       See McConnel v. State, 12 S.W.3d 795, 800 (Tenn. 2000) (holding that
       withdrawal of the guilty plea is unnecessary when the parties agree to replace
       an illegal sentence with a legal one).

Id. at 6-7.

       We acknowledge the difficulty facing the habeas corpus court in determining
materiality within the context of a bargained-for plea agreement. Further, we recognize that
this court “has perhaps enlarged the exceptions to the ‘general rule’ of remedy in McLaney-
Smith-Summers by holding that ‘the presence of a void component of a plea agreement does
not necessarily equate to the invalidity of the entire agreement.’” Id. at 7-8 (quoting Michael
David Russel v. Virginia Lewis, No. E2005-02644-CCA-R3-HC, 2007 WL 2141546, at *3
(Tenn. Crim. App. July 26, 2007), no pet. for perm. app. filed (finding “untenable the claim
that a void component – the escape conviction . . . with its one-year sentence – fouled the
remainder of the agreement” where the petitioner received an effective sentence of 50 years
in exchange for his package plea agreement). Notwithstanding, we emphasize that the
holdings of Smith and Michael David Russell represent “narrow exceptions” to the general

                                              -7-
rule. See, e.g., Summers II, 267 S.W.3d at 7 (“In Summers [I], the supreme court noted that
Smith represented a narrow exception to the general rule that a petitioner is entitled to
withdraw his guilty plea when he receives an illegal sentence.”); Author Ray Turner v. David
Mills, Warden, No. E2011-00074-CCA-R3-HC, 2012 WL 1431220, at *8 (Tenn. Crim. App.
April 25, 2012) (“[W]e conclude that the Petitioner’s case does not fit within the narrow
exceptions established by Smith or Michael David Russell precluding the withdrawal of his
plea.”); Joey D. Herrell v. Howard Carlton, Warden, No. E2009-01162-CCA-R3-HC, 2010
WL 2612737, at *3 (Tenn. Crim. App. June 30, 2010) (“We must note that, in Summers [I],
our supreme court noted that Smith represented a narrow exception to the general rule[.]”).
The general rule remains that “when a defendant bargains for and receives an illegal
sentence, the defendant will have the option of resentencing on the original plea or
withdrawal of the plea and recommencement of the prosecution.” Smith, 202 S.W.3d at 129.

        As guidance, we again “note that the definition of material as used in the context of
claims under Brady v. Maryland, 373 U.S. 83 (1963) is helpful.” Summers II, 267 S.W.3d
at 8. There, materiality exists “only if there is a reasonable probability” of a change in the
outcome of the proceedings. See United States v. Bagley, 473 U.S. 667, 682 (1985).
Applied in this context, then, materiality exists if there is a reasonably probability that, had
the petitioner been informed that he would be subject to lifetime community supervision
upon his release, he would not have pled guilty. We caution that silence in the record should
not be interpreted, as the State seems to suggest, as proof that the omission of the community
supervision condition from the judgment was not a material bargained-for element. See
Michael Shane Benson v. State, No. E2011-00786-CCA-R3-HC, 2011 WL 6813185, at *3
(Tenn. Crim. App. Dec. 22, 2011) (rejecting a similar argument by the State “given the
supreme court’s guidance that it is ineffective assistance of counsel and constitutionally
insufficient admonition from the trial court not to advise a defendant of the mandatory
community supervision for life provision”) (citing Ward v. State, 315 S.W.3d 461, 474
(Tenn. 2010)). Indeed, in many cases, particularly those involving imposition of community
supervision, the record of the underlying proceedings is silent. This silence does not negate
the possibility that the petitioner was improperly induced to enter the plea agreement on the
basis of the illegal sentence and, in fact, may suggest just the opposite.

       To illustrate the point, we find the Tennessee Supreme Court’s analysis of the issue
in Ward to be helpful. There, the court contrasted lifetime community supervision from
parole, emphasizing that “[f]rom the perspective of someone who has served his or her entire
sentence of incarceration and/or parole, an additional sentence of lifetime supervision is an
undesirable and punitive consequence.” Ward, 315 S.W.3d at 475. It imposes “significant”
consequences on a defendant after having served his or her entire sentence, id. at 474, and
therefore, rises to the level of constitutional error where the trial court fails to advise the
defendant of the community supervision provision. Id. at 476. Although the Ward court

                                              -8-
addressed the issue within the context of a knowing and voluntary guilty plea, we believe that
the court’s analysis sheds light on the materiality of lifetime community supervision as a
component of a guilty plea. Given the “significant” consequences that lifetime community
supervision imposes on a defendant after the defendant has served his entire sentence, see
Ward, 315 S.W.3d at 474, it is entirely possible that, had the petitioner been informed of the
direct consequence of his guilty plea, he would not have pled guilty. To be sure, we do not
mean to suggest that omission of the community supervision component will always be
deemed a material part of the plea bargain, allowing withdrawal of the guilty plea. Cf. Tracy
Lynn Harris v. Jim Worthington, Warden, No. E2008-02363-CCA-R3-HC, 2010 WL
2595203 (Tenn. Crim. App. June 29, 2010), perm. app. denied (Tenn. Nov. 17, 2010)
(concluding that lifetime community supervision was not a material bargained-for element
of the plea agreement where plea negotiations focused on the petitioner’s avoidance of the
death penalty and where his rape sentence was to be served concurrently with his sentence
for life without parole). The determination of materiality is fact specific and will vary from
case to case. We simply note the serious and punitive nature of mandatory lifetime
supervision and advise that in some cases, the absence of the community supervision
component of the plea may be deemed material even where the record is silent.

                                         CONCLUSION

        Based on the above authority, we hold that the Petitioner’s sentence for aggravated
rape is illegal and therefore void. We reverse the summary denial of the petition, vacate the
Petitioner’s aggravated rape sentence, and remand the case to the habeas corpus court for an
evidentiary hearing. The evidentiary hearing is limited to whether the illegal sentence was
a material bargained-for element of a plea agreement with the State, and the proof would be
limited to the record of the underlying proceedings.


                                                   ___________________________________
                                                   CAMILLE R. McMULLEN, JUDGE




                                             -9-
