         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs November 14, 2006

           BRIAN ROBERSON v. HOWARD CARLTON, WARDEN

                 Direct Appeal from the Criminal Court for Johnson County
                            No. 4865 Lynn W. Brown, Judge



                      No. E2006-01551-CCA-R3-HC - Filed July 12, 2007


The petitioner, Brian Roberson, appeals the Johnson County Criminal Court’s denial of his petition
for habeas corpus relief from his guilty pleas to two counts of selling cocaine and one count of
possession of cocaine. He contends that his judgments of conviction are void because his sentences
are illegal. Upon review of the record and the parties’ briefs, we reverse the judgment of the habeas
corpus court and remand this case to the Johnson County Criminal Court for the appointment of
counsel and an evidentiary hearing.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID H. WELLES, J., joined.
JOHN EVERETT WILLIAMS, J., filed a dissenting opinion.

Brian Roberson, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
and Joe C. Crumley, Jr., District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                     I. Factual Background

       On April 10, 1997, a Williamson County Criminal Court jury convicted the petitioner in case
number I-496-117 of selling cocaine, and the trial court sentenced him in June 1997 to eight and one-
half years in confinement. On August 12, 1997, the petitioner was convicted by a jury in case
number I-1196-398-A on count 7, selling cocaine. The Williamson County Criminal Court
sentenced him to nine years in prison and ordered that he serve the sentence consecutively to the
previous sentence. On January 14, 1998, the petitioner pled guilty in case number I-1196-398-A to
count 1, sale of cocaine; count 3, sale of cocaine; and count 5, possession of cocaine. The
Williamson County Criminal Court sentenced him to eight years for counts 1 and 3 and to three years
for count 5. The trial court ordered that he serve the eight-year sentences concurrently to each other
and that he serve the three-year sentence consecutively to the eight-year sentences. According to the
judgment forms for counts 1 and 3, the trial court also ordered that they be served concurrently to
“ALL OTHER PREVIOUSLY IMPOSED SENTENCES.” The judgment forms for counts 1, 3, and
5 show that the appellant committed those offenses on August 8, 1996; August 26, 1996; and
September 13, 1996, respectively.

        On April 3, 2006, the petitioner filed a pro se petition for a writ of habeas corpus in the
Johnson County Criminal Court, alleging that his sentences for counts 1, 3, and 5 in case number I-
1196-398-A are illegal because he committed those offenses while he was on bail for the offense in
case number I-496-117 and, therefore, must serve the sentences consecutively to the sentence in case
number I-496-117. In support of his argument, the petitioner filed the following exhibits with his
petition: the judgment forms for counts 1, 3, 5, and 7 from case number I-1196-398-A; the judgment
form for case number I-496-117; and a copy of an appearance bond for case number I-496-117.

        On May 9, 2006, the Johnson County Criminal Court filed a written order dismissing the
petition with little explanation. The petitioner timely appealed to this court, arguing that pursuant
to Tennessee Code Annotated section 40-20-111(b) and Tennessee Rule of Criminal Procedure
32(c)(3)(C), he was required to serve the sentences for counts 1, 3, and 5 in case number I-1196-398-
A consecutively to the sentence in I-496-117 and, therefore, that the sentences are illegal.

                                             II. Analysis

         Tennessee Code Annotated section 40-20-111(b) provides that if a defendant commits a
felony while on bail “and the defendant is convicted of both offenses, the trial judge . . . shall order
that the sentences be served cumulatively.” The Tennessee Rule of Criminal Procedure 32(c)(3) also
provides that

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

               ...

               (C) to a sentence for a felony committed while the defendant was
               released on bail and the defendant is convicted of both offenses[.]

      The purpose of a habeas corpus petition is to contest void and not merely voidable
judgments. Archer v. State, 851 S.W.2d 157, 163 (Tenn. 1993) (citing State ex rel. Newsom v.
Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189 (1968)). Habeas corpus relief is available only when


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it appears on the face of the judgment or the record that the trial court was without jurisdiction to
convict or sentence the defendant or that his sentence has expired. Archer, 851 S.W.2d at 164. The
burden is on the petitioner to establish that the judgment is void or that the sentence has expired.
State ex rel. Kuntz v. Bomar, 381 S.W.2d 290, 291-92 (1964). A trial court may summarily dismiss
a petition for writ of habeas corpus without the appointment of counsel and without an evidentiary
hearing if there is nothing on the face of the judgment to indicate that the convictions addressed
therein are void. Passarella v. State, 891 S.W.2d 619 (Tenn. Crim. App. 1994).

        In the recent case of Summers v. State, 212 S.W.3d 251 (Tenn. 2007), our supreme court
attempted to explain when the appointment of counsel and an evidentiary hearing are necessary in
a habeas corpus case. In Summers, the petitioner filed a pro se petition for writ of habeas corpus,
alleging that he was being held in confinement for three offenses when he committed a subsequent
escape offense and, therefore, that concurrent sentencing for the escape conviction was in direct
contravention of Tenn. Code Ann. § 40-20-111(b) (2000) and Tenn. R. Crim. P. 32(c)(3)(C). Id. at
256. Concluding that the trial court properly dismissed the petition without the appointment of
counsel and an evidentiary hearing, our supreme court stated as follows:

                        Although the judgment on Summers’ escape conviction states
               that the sentence is to be served concurrently with his sentences for
               voluntary manslaughter, aggravated arson, and sale of cocaine, the
               judgment is silent as to whether Summers committed the escape
               while being held for the other charges. We conclude, therefore, that
               no illegality of the sentence is evident on the face of the judgment
               ordering a concurrent sentence for the escape conviction.
               Furthermore, nothing in the record indicates that Summers committed
               the escape while being held for the other charges. The State bears no
               burden of showing that the record of the proceedings upon which the
               judgment was rendered reveals that Summers’ factual assertions are
               false. The burden rests with Summers to prove that his allegations
               are true. Because the escape judgment is facially valid and Summers
               failed to support his factual assertions with pertinent documents from
               the record of the underlying proceedings, we conclude that summary
               dismissal was proper.

Id. at 262.

        Turning to the instant case, the judgment form in case number I-496-117 shows that the
petitioner committed that offense on December 18, 1995. According to the appearance bond for case
number I-496-117, the petitioner was released on a $10,000 bond on May 16, 1996. Although the
judgment forms for counts 1, 3, and 5 in case number I-1196-398-A are silent as to whether the
petitioner committed those offenses while he was on bond in case number I-496-117, the judgments
state that the petitioner committed those offenses on August 8, August 26, and September 13, 1996,
respectively. Thus, unlike Summers, the petitioner in this case has attached documents to his


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petition which indicate that his allegations are true and that he was on bond in case number I-496-
117 when he committed the offenses in case number I-1196-398-A. Moreover, the judgment forms
for counts 1 and 3 specifically state that the petitioner is to serve those sentences concurrently to all
previously imposed sentences. Thus, the trial court’s ordering the petitioner to serve the sentences
in counts 1 and 3 concurrently with all previous sentences would appear to contravene Tennessee
Code Annotated section 40-20-111(b) and Tennessee Rule of Criminal Procedure 32(c)(3)(C), and
the judgments of conviction in those cases would be void. The sentence for count 5, however, is not
illegal because the judgment form for that conviction only shows that the trial court ordered that the
sentence be served consecutively to counts 1 and 3. It does not state that the petitioner is to serve
that sentence concurrently with all other previous sentences and, therefore, is not void on its face.

         The State makes several arguments as to why the trial court properly denied the petition for
habeas corpus relief. First, the State contends that the petitioner has failed to meet the mandatory
procedural requirements for habeas corpus relief because he failed to properly verify his petition by
affidavit as required by Tennessee Code Annotated section 29-21-107(a). However, the trial court’s
scant order denying habeas corpus relief states only that the trial court denied relief because
“[n]othing in the petition would support a finding by this court that petitioner’s conviction is void
or that his sentence has expired.” The trial court did not dismiss the petition on procedural grounds.
“In such instances, an appellate court should not then rely on such deficiencies to defeat an appeal
thereof, but should review the reasons relied upon by the lower court.” Darwin Theus v. David
Mills, Warden, No. W2005-02204-CCA-R3-HC, 2006 Tenn. Crim. App. LEXIS 253, at **6-7
(Jackson, Mar. 23, 2006) (citing Tyrone D. Conley v. Howard Carlton, Warden, No.
E2005-00049-CCA-R3-HC, 2005 Tenn. Crim. App. LEXIS 1157 (Knoxville, Nov. 2, 2005)
(Tipton, J., concurring)); see Derrick L. Brown v. State, No. W2005-01871-CCA-R3-HC, 2006
Tenn. Crim. App. LEXIS 302, at **3-4 (Jackson, Apr. 13, 2006). Therefore, we will not dismiss the
petition on procedural grounds.

        The State also contends that habeas corpus relief is not appropriate in this case because
although the judgments for counts 1 and 3 in case number I-1196-398-A state that those sentences
will run concurrently to “all other previously imposed sentences,” they do not specifically state that
the sentences will be served concurrently with the sentence in case number I-496-117. However, by
using the word “all,” it appears on the face of the judgments for counts 1 and 3 that those sentences
will run concurrently with the sentence in case number I-496-117, a previously imposed sentence.

       Next, the State claims that this issue is moot because the petitioner’s eight and one-half-year
sentence in case number I-496-117 expired in December 2005, five months before the petitioner filed
his habeas corpus petition. However, because all of the sentences for the petitioner’s challenged
convictions had not yet expired when he filed his petition, we refuse to hold that the issue is moot.
See Summers, 212 S.W.3d at 258.

        Finally, the State contends that the petitioner’s claim “is a classic voidability claim, an attack
of the guilty plea, which may only be brought in a timely-filed petition for post-conviction relief.”
However, even if the State is correct in that the petitioner is attacking the voluntariness of his pleas,


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that fact is irrelevant in a habeas corpus proceeding. Id. at 259. “Instead, the determinative issue
is whether the plea agreement included an illegal sentence as a material element. If so, the illegal
sentence renders the guilty plea, including the conviction, invalid.” Id. Therefore, having concluded
from the record that the petitioner has sufficiently attached documents to his petition that support
his claim for habeas corpus relief, the habeas corpus court’s dismissal of the petition is reversed.

        Accordingly, this case is remanded to the Johnson County Criminal Court for the
appointment of counsel and an evidentiary hearing in order to determine whether the petitioner is
entitled to relief. If the Johnson County Criminal Court concludes that habeas corpus relief if
warranted, that court must remand the case to the Williamson County Criminal Court to conduct a
hearing in order to determine whether the petitioner’s plea agreement included the illegal sentences
in counts 1 and 3 as a material element. If so, the entire guilty plea and the petitioner’s convictions
for counts 1, 3, and 5 are invalid. See id. at 258 (stating that “[w]hen a plea agreement constitutes
a package deal, an illegal sentence imposed on one of the plea offenses generally invalidates the
entire plea agreement”). The petitioner can then withdraw his guilty pleas and the underlying
convictions will be vacated, or the parties can agree to legal sentences to replace the illegal sentences
and a withdrawal of the guilty pleas will be unnecessary. See id. at 259. If, however, the trial court
determines that the illegal sentences were not a bargained-for element of the plea agreement, then
only the petitioner’s sentences are void and the underlying convictions remain intact. Id. (citing
Smith v. Lewis, 202 S.W.3d 124 (Tenn. 2006)). In that situation, the illegal sentences will be
vacated, and the Williamson County Criminal Court can resentence the petitioner.

                                           III. Conclusion

        Based upon the record and the parties’ briefs, we reverse the judgment of the Johnson County
Criminal Court and remand this case for the appointment of counsel, an evidentiary hearing, and any
further proceedings consistent with this opinion.


                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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