        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs April 11, 2006

               EARL JEROME LEE v. GLEN TURNER, WARDEN

                Direct Appeal from the Circuit Court for Hardeman County
                           No. 05-020037 Joe Walker, Judge




                     No. W2005-01601-CCA-R3-HC - Filed June 6, 2006


The petitioner, Earl Jerome Lee, pled guilty to aggravated kidnapping, attempted felony escape,
concealing stolen property, and fraudulent use of a credit card, and he received a total effective
sentence of forty years incarceration in the Tennessee Department of Correction. Subsequently, the
petitioner filed a petition for a writ of habeas corpus, alleging that the sentences imposed were
illegal. The habeas corpus court dismissed the petition without appointing counsel or conducting
an evidentiary hearing. The petitioner appeals the dismissal. Upon our review of the record and the
parties’ briefs, we affirm the judgment of the habeas corpus court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.
MCLIN , JJ., joined.

Earl Jerome Lee, Whiteville, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; and
Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                    I. Factual Background

        On February 5, 1988, the petitioner pled guilty in the Madison County Circuit Court to
concealing stolen property valued over $200, count one of indictment number 87-347; fraudulent
use of a credit card valued over $200, count two of indictment number 87-347; aggravated
kidnapping, count one of indictment number 87-467; and attempted felony escape, count two of
indictment number 87-467. He received sentences of ten years, four years, forty years, and five
years, respectively. The trial court ordered that the sentences be served concurrently.
        On May 4, 2005, the petitioner filed in the Hardeman County Circuit Court a petition for a
writ of habeas corpus. In his petition, the petitioner stated, “On April 18, 1987, petitioner was
arrested and charged with concealing stolen property and credit card fraud . . . , and made bond
within hours of his arrest. While on bond, petitioner was arrested on warrant alleging receiving
stolen property of a (truck).” The petitioner also stated that on June 14, 1987, he was arrested and
charged under indictment 87-467 with aggravated kidnapping and attempted escape. The petitioner
maintained that his guilty pleas, which provided for concurrent service of the sentences
accompanying the convictions for indictments 87-347 and 87-467, were illegal because he was on
bond when he attempted to escape and committed aggravated kidnapping, thereby making
consecutive sentencing mandatory under Tennessee Code Annotated section 40-20-111(B) (2002).

        The State filed a motion to dismiss, alleging that the record revealed that the petitioner was
not on bond when he committed the offenses in indictment 87-467. Specifically, the State argued:

               The petition should be dismissed upon the pleadings. The [petitioner]
               was in custody when he attempted to escape. The petitioner clearly
               states that while he at one time did make bond he was rearrested
               before attempting to escape. It was during this attempted escape that
               he kidnapped deputies at the jail and thus was not on bond, parole or
               escape status when new felonies were committed.

The habeas corpus court filed an order granting the State’s motion to dismiss. The petitioner now
appeals this dismissal.

                                             II. Analysis

        Initially, we note that the determination of whether to grant habeas corpus relief is a question
of law. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). As such, we will review the trial court’s
findings de novo without a presumption of correctness. Id. Moreover, it is the petitioner’s burden
to demonstrate, by a preponderance of the evidence, “that the sentence is void or that the
confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

         Article I, § 15 of the Tennessee Constitution guarantees an accused the right to seek habeas
corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). However, “[s]uch relief is
available only when it appears from the face of the judgment or the record of the proceedings that
a trial court was without jurisdiction to sentence a defendant or that a defendant’s sentence of
imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d at 322; see also Tenn. Code Ann.
§ 29-21-101 (2000). In other words, habeas corpus relief may be sought only when the judgment
is void, not merely voidable. Taylor, 995 S.W.2d at 83. “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.’ We have recognized that a sentence imposed in
direct contravention of a statute, for example, is void and illegal.” Stephenson v. Carlton, 28 S.W.3d
910, 911 (Tenn. 2000) (citations omitted).


                                                  -2-
        We acknowledge that when the petitioner was sentenced in 1988, Tennessee Code Annotated
section 40-20-111(b) (1987) provided:

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

Thus, if the petitioner committed the felonies in indictment 87-467 while on bail for the offenses in
indictment 87-347, the concurrent sentences would be illegal.

         Our review of the record reveals that the judgments of conviction reflect that the petitioner
committed the offenses underlying indictment 87-347 on April 18, 1987. In a “Petition to Vacate
Illegal Sentence” filed on February 18, 2005, the petitioner maintained that he was granted bond the
same day he was arrested for the offenses underlying indictment 87-347, and he was rearrested later
that same month. In his petition for a writ of habeas corpus, the petitioner asserted that while he was
on bond, he was arrested for receiving stolen property. In his brief, he acknowledges that his bond
was revoked after he was arrested for receiving stolen property. The judgments of conviction for
aggravated kidnapping and attempted escape, the offenses on indictment 87-467, reflect that he
committed those offenses on June 14, 1987, after his bond was revoked. Moreover, the petitioner’s
conviction for attempted felony escape reflects that he was incarcerated on June 14, 1987, the date
of that offense. Accordingly, we conclude that the petitioner’s assertion that he was on bond at the
time he committed the offenses in indictment 87-467 is disingenuous. The petitioner’s sentences
are not illegal, and he is not entitled to habeas corpus relief.

                                          III. Conclusion

       Finding no error, we affirm the judgment of the habeas corpus court.


                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




                                                 -3-
