        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              September 28, 2011 Session

             AUTHOR RAY TURNER v. DAVID MILLS, WARDEN

                  Appeal from the Criminal Court for Morgan County
                          No. 9422   E. Eugene Eblen, Judge


                  No. E2011-00074-CCA-R3-HC - Filed April 25, 2012


The State appeals the Morgan County Criminal Court’s order granting habeas corpus relief
to the Petitioner, Author Ray Turner, and allowing him to withdraw his guilty pleas. The
State argues that the Petitioner is not entitled to withdraw his guilty pleas because the thirty
percent release eligibility for his two aggravated rape convictions was not a material element
of his plea agreement. Upon review, we affirm the habeas corpus court’s judgment allowing
the Petitioner to withdraw his guilty pleas if he cannot reach an agreement with the State and
remanding the case to the Davidson County Criminal Court for further proceedings.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R., J., joined, and J OSEPH M. T IPTON, P.J., filed a separate concurring opinion.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel,
Nashville, Tennessee, for the Appellant, David Mills, Warden.

Robert L. Vogel, Knoxville, Tennessee, for the Petitioner-Appellee, Author Ray Turner.

                                          OPINION

       Background. The Petitioner was indicted for one count of especially aggravated
kidnapping, one count of aggravated robbery, four counts of aggravated rape, and one count
of attempted aggravated rape. On November 15, 1995, in the Davidson County Criminal
Court, he pleaded guilty to especially aggravated kidnapping, aggravated robbery, and two
counts of aggravated rape, and the remaining charges were dismissed.

      At the plea submission hearing, the trial court advised the Petitioner that if he were
convicted of the charged offense of especially aggravated kidnapping, he would face a
sentence of fifteen to sixty years’ imprisonment; if he were convicted of the charged offense
of aggravated robbery, he would face a sentence of eight to thirty years’ imprisonment; if he
were convicted of the four counts of aggravated rape, he would face a sentence for each
count of fifteen to sixty years’ imprisonment; and if he were convicted of the charged offense
of attempted aggravated rape, he would face a sentence of eight to thirty years’
imprisonment. The Petitioner responded that he understood the potential sentences that he
would face if he proceeded to trial.

        The State then summarized the facts supporting the entry of the Petitioner’s guilty
plea:

               Your Honor, State versus A[u]th[o]r Ray Turner, Case No. 95-C-1691.
        The State’s proof would be that on March 16th [sic], 1995, about 10:00 a.m.,
        Rutherford County police officers called the Sex Abuse Unit of the Metro
        Police Department to report that [the victim] . . . was in Rutherford County,
        having been abducted from Davidson County. She told police that she had
        been at the Hermitage Fitness Center on Lebanon Road here in Davidson
        County when a male black approached her, forced her at gunpoint into her car,
        took her to a location near the Hermitage here in Davidson County where he
        raped her, then placed her in the trunk of the car, took her to another location
        near the Rivergate area here in Davidson County and raped her a second time.
        She was able to escape from the trunk of the vehicle in Rutherford County and
        go to a citizen’s home there to report what had happened, who called police
        and notified them.

                The police went to that location, knocked on the door where the car had
        been parked, spoke to a woman by the name of Tanya Johnston, who answered
        the door, and said that there was a male black there who was asleep, gave a
        description of him and he fit the description the victim gave [to] the police.
        They went inside, found him, placed him under arrest, advised him of his
        rights, and he gave a statement [in] which he admitted to kidnapping [the
        victim], placing her in the trunk and raping her at various locations and then
        taking her to Rutherford County.

                [The victim] did give an audiotaped statement wherein she told the
        police that she had been forced to perform oral sex on the defendant, as well
        as raped vaginally at both locations. There was physical evidence found at the
        scene, including fingerprints inside the car. The defendant did have possession
        of the keys to the car belonging to the victim, which he had stolen during the



                                              -2-
       course of the robbery. He had kept her confined in the trunk until she was able
       to escape.

The trial court asked the Petitioner if he was entering guilt pleas of his own free will, and the
Petitioner responded, “In a way.” When asked to explain this response, the Petitioner stated,
“Well, if I go to trial and get found guilty, I’ll get a h[---] of a lot more time, you know, so
why not plead guilty?” Then the following conversation took place between the trial court
and the Petitioner:

       The Court:            Well, if you’re not guilty, though, you ought to let a
                             [j]ury decide.

       [The Petitioner]:     Well, I ain’t taking that chance.

       The Court:            Well, are you telling me that you’re not guilty?

       [The Petitioner]:     No.

       The Court:            If you’re not guilty, I’m not going to find you guilty.

       [The Petitioner]:     I don’t want to go to trial, so I’m guilty.

       The Court:            Well, I take it, General, you have witnesses who would
                             testify that these things happened?

       [The State]:          Well, not only that – I do have that, but I also have his
                             own taped statement in which he admits to abducting the
                             woman, putting her in the trunk of the car, using a gun,
                             forcing her to perform oral sex, vaginally raping her[,]
                             and attempting anal sex. So I have a pretty strong case
                             against him, not just from the witness standpoint, but
                             from his own statement.

       [The Petitioner]:     Guilty.

The trial court then accepted the guilty pleas:




                                               -3-
               All right. Mr. Turner, in Case 95-C-1691, I find there’s a factual basis
       for a finding of guilt and that your plea is voluntary. I find you guilty in Count
       I of especially aggravated kidnapping and sentence you to twenty years. I find
       you guilty in Count II of aggravated robbery and sentence you to ten years.
       Those two sentences [are] to run concurrent[ly] with each other. Count III, I
       find you guilty of aggravated rape; and, Count IV, aggravated rape[,] and
       sentence you to twenty years on each of those, the two twenty[-]year sentences
       to run concurrent[ly] with each other, but consecutive to the twenty years
       imposed in Count I and II, for a total effective sentence of [R]ange one – forty
       years as a [R]ange one offender with thirty percent for all purposes. You – it
       should be noted the offenses occurred before July 1st [sic], 1995, so the – that
       you get regular sentence credits and that you’ll get jail credit from March 16 th
       [sic], 1995, on these cases. The other counts of the indictment are dismissed.

       After entering his guilty pleas to the aforementioned offenses in 1995, the Petitioner
filed several unsuccessful petitions for post-conviction and habeas corpus relief. See
A[u]th[o]r R. Turner v. State, No. 01C01-9707-CR-00274, 1998 WL 652154 (Tenn. Crim.
App., at Nashville, Sept. 23, 1998) (affirming dismissal of the post-conviction petition),
perm. app. denied (Tenn. Mar. 22, 1999); Author R. Turner v. State, No. M2002-00541-
CCA-R3-PC, 2003 WL 1877035 (Tenn. Crim. App., at Nashville, Apr. 14, 2003) (order
affirming summary dismissal of post-conviction petition), perm. app. denied (Tenn. Sept. 2,
2003); Author Ray Turner v. State, No. M2004–02831-CCA-R3-CO, 2005 WL 1707964
(Tenn. Crim. App., at Nashville, July 21, 2005) (affirming denial of motion to reopen post-
conviction petition); Author Ray Turner v. Stephen Dotson, Warden, No. W2008-00011-
CCA-R3-HC, 2008 WL 4253644 (Tenn. Crim. App., at Jackson, Sept. 16, 2008) (affirming
summary dismissal of petition for writ of habeas corpus).

        On December 9, 2008, the Petitioner filed the instant pro se petition, his second
habeas corpus petition, in the Morgan County Criminal Court. In it, he alleged that his
aggravated rape sentences were illegal because he qualified as a “multiple rapist” under
Tennessee Code Annotated section 39-13-523 and, therefore, was required to serve those
sentences at one hundred percent. The State filed a motion to dismiss, claiming that
irregularities in offender classification or release eligibility were not cognizable claims for
habeas corpus relief. The Petitioner’s response to the motion to dismiss argued that his
sentence was illegal because it was in direct contravention of section 39-13-523 and that the
thirty percent release eligibility for his aggravated rape sentences was a material bargained-
for element of his plea agreement. The habeas corpus court summarily dismissed the
petition, and the Petitioner filed a timely notice of appeal.




                                              -4-
       On appeal, this court concluded that the Petitioner’s sentences for aggravated rape
were, in fact, void:1

                First, we acknowledge that the defendant’s sentences for aggravated
        rape are illegal on the face of the judgments. Our state’s multiple rapist statute
        requires that a defendant who qualifies as a multiple rapist serve 100 percent
        of his sentence. See T.C.A. § 39-13-523 [footnote ommitted]. The statute
        defines a multiple rapist as an offender convicted two or more times of rape
        or aggravated rape. See id. This court has noted that qualifying convictions
        “render [] [a petitioner] ‘“a multiple rapist” as a matter of law,’ and neither the
        prosecutor nor the judge c[an] deviate from the release eligibility
        requirement.”            A ndre L am ont M ayfield v. State, N o.
        M2004-01408-CCA-R3-HC, slip op. at 3 (Tenn. Crim. App., Nashville, July
        18, 2005) (quoting Mark A. Percy v. Tenn. Dep’t of Corr., No.
        M2001-01629-COA-R3-CV, slip op. at 2 (Tenn. Ct. App., Nashville, Feb. 26,
        2003)). Our supreme court has held that a judgment allotting for sentencing
        credits contrary to the 100 percent service mandates of Code section 39-13-523
        was “void upon its face.” Smith v. Lewis, 202 S.W.3d 124, 128 (Tenn. 2006).

Author Ray Turner v. David Mills, Warden, No. E2009-00194-CCA-R3-HC, 2010 WL
1949143, at *3 (Tenn. Crim. App., at Knoxville, May 13, 2010). This court also reiterated
the procedural guidelines for illegal sentences in plea agreements:


       1
         Effective June 11, 2009, the General Assembly amended the statute establishing the grounds for
seeking habeas corpus relief to state the following:

        (b) Persons restrained of their liberty pursuant to a guilty plea and negotiated sentence are
        not entitled to the benefits of this writ on any claim that:

        (1) The petitioner received concurrent sentencing where there was a statutory requirement
        for consecutive sentencing;

        (2) The petitioner’s sentence included a release eligibility percentage where the petitioner
        was not entitled to any early release; or

        (3) The petitioner’s sentence included a lower release eligibility percentage than the
        petitioner was entitled to under statutory requirements.

T.C.A. § 29-21-101(b) (Supp. 2010); 2009 Tenn. Pub. Acts ch. 420, § 3. This amendment does not apply
to this case because the Petitioner filed his petition for writ of habeas corpus prior to June 11, 2009.



                                                    -5-
       “At [the evidentiary] 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, as in Smith, 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 McConnell 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 *3-4 (quoting Summers v. Fortner, 267 S.W.3d 1, 6-7 (Tenn. Crim. App. 2008)
(“Summers II”)). Ultimately, this court reversed the judgment of the habeas corpus court and
remanded the case to that court for the appointment of counsel and for an evidentiary hearing
to determine whether the illegality regarding the thirty percent release eligibility was a
material bargained-for element of the Petitioner’s plea agreement that would entitle him to
withdraw his guilty plea. Id. at *4.

       Upon remand, the habeas corpus court appointed counsel, who filed an amended
petition for writ of habeas corpus alleging that the Petitioner’s sentence was illegal and that
the thirty percent release eligibility for his aggravated rape sentences was a material
bargained-for element of his plea agreement. At the evidentiary hearing, the trial court heard
arguments from the Petitioner’s counsel and the State. The trial court also allowed the
Petitioner to testify at the hearing, over the State’s objection and contrary to this court’s
directive that the proof at the evidentiary hearing was “‘limited to the face of the record of
the underlying proceedings.’” Id. at *4 (quoting Summers II, 267 S.W.3d at 6). The
Petitioner subsequently testified that he would not have entered a guilty plea in this case if
the State had offered two concurrent twenty-year sentences with a release eligibility of one
hundred percent for the aggravated rape convictions.

      Following the evidentiary hearing, the habeas corpus court entered a December 10,
2010 order granting the Petitioner habeas corpus relief:

              After reviewing (1) the petition and its attachments, (2) the
       respondent’s motion to dismiss, (3) the opinion of the Court of Criminal
       Appeals remanding the case to this Court for the appointment of counsel, (4)
       the petitioner’s amended petition, and (5) the record in this case, and after
       conducting a hearing on October 25, 2010, in Kingston by agreement of the
       parties, the Court is of the opinion that the petition for writ of habeas corpus

                                              -6-
       is well-taken and should be granted. The Court of Criminal Appeals
       previously concluded that the petitioner’s two judgments of conviction for
       aggravated rape are void because the petitioner was not ordered to serve his
       sentences at 100 percent as a multiple rapist, as required by [Tennessee Code
       Annotated section] 39-13-523. That court remanded the case for this Court to
       determine “whether the original 30 percent release eligibility was a material
       bargained-for element of the petitioner’s plea agreement.” This Court now
       finds that the petitioner’s original 30 percent release eligibility was a material
       bargained-for element of the petitioner’s plea agreement.

              Accordingly, it is ordered, adjudicated, and decreed that the petition for
       writ of habeas corpus is GRANTED, and the case is TRANSFERRED to the
       Davidson County Criminal Court for further proceedings. Since “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.” Summers v. Fortner, 267 S.W.3d 1, 7 (Tenn. Crim. App.
       2008) (citing McConnell v. State, 12 S.W.3d 795, 800 (Tenn. 2000)).

                                          ANALYSIS

        On appeal, the State concedes that the Petitioner’s aggravated rape sentences were
illegal but contends that the Petitioner is not entitled to withdraw his guilty plea because the
thirty percent release eligibility for his two aggravated rape convictions was not a material
element of his guilty plea agreement. The State argues that the only relief that the Petitioner
may receive is a remand to the convicting court for entry of amended judgments ordering one
hundred percent service as a “multiple rapist” for the two aggravated rape convictions
pursuant to Tennessee Code Annotated section 39-13-523.

        In response, the Petitioner argues that he should be allowed to withdraw his plea and
proceed to trial if he cannot reach a new plea agreement with the State because the thirty
percent release eligibility for his aggravated rape convictions was a material element of his
plea agreement. Moreover, he asserts that “[t]he State simply recites the record and then
concludes, on its own, and against the opinion of the [habeas corpus] [c]ourt, that the record
is insufficient based on [the State’s] interpretation of it.” Finally, the Petitioner contends that
this court’s refusal to allow him to withdraw his guilty plea would result in a narrowing of
the relief available to defendants who have entered a guilty plea to illegal sentences. He
argues that the remedy of allowing a withdrawal of a guilty plea is proper because it avoids
“inflict[ing] upon a misled defendant a sentence to which he or she did not agree” and
“encourage[s] trial judges and prosecutors to ensure that only legal sentences are bargained[-
]for and imposed.” Smith, 202 S.W.3d at 129. Upon review, we agree that the Petitioner

                                                -7-
should be allowed to withdraw his guilty pleas and proceed to trial if he cannot reach a new
plea agreement with the State.

        In determining whether to grant habeas corpus relief, our review is de novo without
a presumption of correctness. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007)
(“Summers I”) (citing State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006)). 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 also T.C.A. §§ 29-21-101 to -130. The grounds
upon which a writ of habeas corpus may be issued, however, 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, 978 S.W.2d 528, 529 (Tenn.
1998); Archer, 851 S.W.2d at 161-64). However, “a voidable judgment is one that is facially
valid and requires proof beyond the face of the record or judgment to establish its invalidity.”
Summers I, 212 S.W.3d at 256 (citing Dykes, 978 S.W.2d at 529). 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).

        On remand, this court ordered the habeas corpus court to appoint counsel and to
conduct an evidentiary hearing to determine whether the illegality regarding the thirty percent
release eligibility was a material bargained-for element of the Petitioner’s plea agreement that
would entitle the Petitioner to a withdrawal of his guilty plea. Author Ray Turner, 2010 WL
1949143, at *4; see also Summers II, 267 S.W.3d at 8 (“[T]he judgment of the habeas corpus
court summarily dismissing the petition for writ of habeas corpus is reversed, and the case
is remanded to that court for the appointment of counsel and an evidentiary hearing to
determine whether the petitioner is entitled to withdraw his guilty plea.”); Summers I, 212
S.W.3d at 259 (“Voluntariness of the plea . . . has no relevance in a habeas corpus
proceeding. . . . Instead, the determinative issue is whether the plea agreement included an
illegal sentence as a material element.”); Smith, 202 S.W.3d at 130 (“[W]here the illegality
infects only the sentence, only the sentence is rendered void and habeas corpus relief may be
granted to the extent of the sentence only. In such cases, the underlying conviction remains
intact.”). This court has stated that “materiality exists when ‘there is a reasonable

                                              -8-
probability’ of a change in the outcome of the proceeding.” Summers II, 267 S.W.3d at 8
(citing United States v. Bagley, 473 U.S. 667, 682 (1985)). “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.”
Id. at 6-7. However, “[i]f 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.” Id. (citing McConnell, 12 S.W.3d at 800); see Cantrell v.
Easterling, 346 S.W.3d 445, 456 (Tenn. 2011) (citing Smith, 202 S.W.3d at 129; State v.
Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)). This court has emphasized that non-material
elements of a plea agreement may not merit the withdrawal of a petitioner’s plea:

       [T]he presence of a relatively de minimis, or non-material, void component in
       the plea agreement may not justify availing the petitioner an opportunity to
       withdraw his plea agreement. To be sure, Smith denied the petitioner the
       opportunity to withdraw his guilty plea when a void component of the
       judgment was deemed not to be a component of the plea agreement. See
       generally Smith, 202 S.W.3d at 130. 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.” Michael David
       Russell v. Virginia Lewis, No. E2005–02644–CCA–R3–HC, slip op. at 3,
       2007 WL 2141546 (Tenn. Crim. App., Knoxville, July 26, 2007), no pet. for
       perm. app. filed (emphasis added). In Michael David Russell, the guilty-plea
       documents showed that, “in exchange for his package of guilty pleas [to armed
       robbery, three counts of aggravated rape, and two counts of escape], the
       defendant received a nolle prosequi on the charges of burglary, grand larceny,
       assault and battery, and habitual criminality.” Id. Also, “[d]espite the
       presence of prior convictions that warranted a more egregious sentencing
       range, the agreement provided for release eligibility of 30 percent.” Id.
       “Thus,” this court said, “the mainspring of the agreement from the defendant’s
       point of view appears to be the avoidance of additional convictions, including
       that of habitual criminality, and the benefit of a 30 percent release eligibility.”
       Id. We viewed “as untenable the claim that a void component—the escape
       conviction . . . with its one-year sentence – fouled the remainder of the
       agreement.” Id. Essentially, in Michael David Russell, the escape sentencing
       provisions were not a material part of the plea agreement.

Id. at 7-8.




                                               -9-
        Here, the State first argues that the thirty percent release eligibility was not a material
bargained-for element of the plea agreement because the Petitioner knew that he would be
facing a much greater sentence than forty years if he were convicted at trial. In support of
this argument, the State asserts that the Petitioner was charged with five Class A felonies and
two Class B felonies and was facing a potential sentence of 149 years, even as a Range I,
standard offender. The State also maintains that there was overwhelming evidence of the
Petitioner’s guilt, which included the Petitioner’s recorded confession and the victim’s
testimony regarding the offenses. Finally, the State asserts that three of the seven charges
were dismissed and the Petitioner received two sets of concurrent sentences pursuant to the
terms of the plea agreement.

       In response, the Petitioner argues that the State is trying to “muddy the waters” by
suggesting that the release eligibility part of his agreement was not material simply because
he was facing a potentially greater sentence if convicted. In addition, regarding the State’s
assertion that he was facing a potential sentence of 149 years, the Petitioner argues that, as
a Range I offender, it was unlikely that he would have been sentenced to all consecutive
sentences and, if he had been sentenced so harshly, it was unlikely that this sentence would
have survived an appeal. Instead, he asserts that because his likely sentence was between
forty and sixty years if he had been found guilty at trial, it is more likely that he would have
declined the plea agreement if he had not been given the thirty percent release eligibility for
the aggravated rape convictions.

        Alternatively, the State argues that the Petitioner failed to prove that the illegal
sentences containing the thirty percent release eligibility “fouled” the plea agreement, given
the other favorable terms of the plea agreement. See Summers II, 267 S.W.3d at 8. In
response, the Petitioner contends that the thirty percent release eligibility in his plea
agreement, which effectively amounted to a difference of fourteen years,2 cannot be
construed as a “de minimis, or non-material, void component in the plea agreement” that
would not justify the withdrawal of his plea. Id. at 7. Moreover, the Petitioner argues that,
in contrast to the narrow exception established in Smith v. Lewis, the thirty percent release
eligibility of his aggravated rape sentences was a material bargained-for element of his plea
agreement, which was thoroughly discussed during the sentencing hearing and was reflected
on the judgments. See Smith, 202 S.W.3d at 129-30 (holding that the illegal sentence was

       2
           The Petitioner accounts for this fourteen-year disparity as follows:

       By entering into a 40[-]year agreement as a Range I offender at 30%, Mr. Turner knew that
       he was eligible for parole after 12 years. Had he been offered the legal sentence, 100% of
       the 20 years on the [aggravated] rape charges, he would have had to have served twenty-six
       (26) years before he would have been eligible for parole (20 [years] on the [aggravated] rape
       charges and 6 years (30% of the second 20 years)).

                                                    -10-
not a material bargained-for element of the plea agreement where the record of the previous
proceedings showed that the illegality resulted from the trial court’s sua sponte error
regarding the unavailability of early release for child rapists).

        Initially, we note that although the habeas corpus court appointed the Petitioner
counsel and conducted an evidentiary hearing to determine whether the Petitioner was
entitled to withdraw his guilty plea, it did not follow this court’s remand directive because
it improperly relied on the Petitioner’s testimony instead of limiting the proof to the face of
the record of the underlying proceedings. We further note that we are bound to apply the
procedural guidelines for habeas corpus relief established in Summers II, 267 S.W.3d at 6-7,
because this case is binding precedent. Despite this fact, we acknowledge that there has been
some disagreement as to whether the habeas corpus court or the convicting court is the proper
forum for determining whether a guilty plea may be withdrawn. See Joey D. Herrell v.
Howard Carlton, Warden, No. E2009-01162-CCA-R3-HC, 2010 WL 2612737, at *5 (Tenn.
Crim. App., at Knoxville, June 30, 2010) (Tipton, P.J., concurring) (“I see nothing in the
supreme court cases that even hints at allowing the habeas court to bind a convicting court
by determining whether a Petitioner is entitled to withdraw a guilty plea.”); Tracy Lynn
Harris v. Jim Worthington, Warden, No. E2008-02363-CCA-R3-HC, 2010 WL 2595203, at
*4 (Tenn. Crim. App., at Knoxville, June 29, 2010) (Tipton, P.J., concurring) (“[A]lthough
the record may support a conclusion that the illegality at issue was not a material element of
the plea agreement, it is the sole authority of the convicting court, not the habeas court, to
determine the proper result.”), perm. app. denied (Tenn. Nov. 17, 2010); compare State v.
Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978) (remanding to the convicting court to conduct
an evidentiary hearing to determine whether the petitioner’s sentence for escape was illegal,
thereby entitling him to withdraw the plea, because the sentence was ordered to be served
concurrently rather than consecutively to his sentence for burglary in his plea agreement),
and McLaney v. Bell, 59 S.W.3d 90, 95-96 (Tenn. 2001) (remanding the case to the habeas
corpus court for the appointment of counsel and for a hearing to determine whether the
petitioner’s sentence pursuant to his plea agreement was void, and, if the habeas corpus court
determined that the sentence was void, ordering that the habeas corpus court transfer the case
to the convicting court “for appropriate disposition”), with Summers II, 267 S.W.3d at 7
(remanding the case to the habeas corpus court for the appointment of counsel and for an
evidentiary hearing to determine whether the petitioner was entitled to withdraw his guilty
plea). Unless the Tennessee Supreme Court decides to overrule existing precedent, a remand
to the habeas corpus court for the purpose of conducting an evidentiary hearing to determine
a petitioner’s entitlement to withdraw his guilty plea is proper.

        Upon review, we conclude that the original record, and not the Petitioner’s testimony
on remand, supports the habeas corpus court’s determination that the thirty percent release
eligibility for the aggravated rape sentences was a material bargained-for element of the

                                             -11-
Petitioner’s plea agreement. The judgment forms for the aggravated rape convictions show
that the Petitioner was sentenced as a Range I, standard offender to concurrent twenty-year
sentences with a release eligibility of thirty percent. Although the Petition to Enter Plea of
Guilty does not mention the thirty percent release eligibility for the aggravated rape
sentences, it does state that the Petitioner was requesting the court’s permission to plead
guilty to especially aggravated kidnapping, aggravated robbery, and two counts of aggravated
rape in exchange for being sentenced as a Range I offender. The transcript from the plea
submission hearing also makes it clear that the Petitioner was given an effective sentence of
“forty years as a [R]ange one offender with thirty percent for all purposes.” Moreover, we
conclude that the Petitioner’s case does not fit within the narrow exceptions established by
Smith or Michael Davis Russell precluding the withdrawal of his plea. The original record
sufficiently establishes that the illegality regarding the thirty percent release eligibility was,
in fact, a material bargained-for element of the plea agreement and that the Petitioner should
be allowed to withdraw his plea and proceed to trial if he cannot reach a new plea agreement
with the State. Accordingly, the judgment of the habeas corpus court is affirmed.

                                       CONCLUSION

       Upon review, we affirm the habeas corpus court’s judgment allowing the Petitioner
to withdraw his guilty plea if he cannot reach an agreement with the State and remanding the
case to the Davidson County Criminal Court for further proceedings.

                                                     ___________________________________
                                                     CAMILLE R. McMULLEN, JUDGE




                                              -12-
