IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 29, 2005

JONATHAN ELLIS v. STATE OF TENNESSEE

 Appeal from the Criminal Court for Johnson County

No. 4639 Lynn W. Brown, Judge

No. E2005-01445-CCA-R3-HC - Filed February 10, 2006

The petitioner, Jonathan Ellis, appeals pro se from the Johnson County Criminal Court’s dismissal

of his petition for habeas corpus relief from his convictions for thirteen counts of aggravated rape,

a Class A felony, and resulting sentences of twenty-five years on each conviction to be served

concurrently as a Range I, standard offender in the Department of Correction. He claims his

judgments of conviction are void because they classify his release eligibility status at thirty percent

in violation of statute. We conclude that four of the sentences are illegal. Therefore, we affirm the

trial court’s judgment in part, reverse the judgment in part, and remand the case. 

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

Reversed in Part; Case Remanded

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

THOMAS T. WOODALL, J., joined.

Jonathan Ellis, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;

and Joe C. Crumley, Jr., District Attorney General, for the appellee, State of Tennessee.

OPINION

 This case relates to the petitioner’s convictions for thirteen counts of aggravated rape. On

May 10, 1994, pursuant to a plea agreement, the Sullivan County Criminal Court accepted the

petitioner’s guilty pleas and sentenced him to twenty-five years on each count to be served

concurrently. The trial court entered all thirteen judgments against the petitioner on one judgment

form. The petitioner filed his first petition for habeas corpus relief alleging that the Sullivan County

Criminal Court did not have jurisdiction to convict him of the offenses. The trial court summarily

dismissed the petition, and this court affirmed the trial court’s dismissal on appeal. See Ellis v.

Carlton, 986 S.W.2d 600, 601 (Tenn. Crim. App. 1998). On April 25, 2005, the petitioner filed a

second petition for habeas corpus relief alleging that his judgments of conviction were void because
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three of his sentences were in direct contravention of statute, the judge failed to sign the judgment

form, and the judgment did not comply with Tennessee Code Annotated section 40-35-209(e), which

outlines the information the uniform judgment form must contain. The trial court summarily

dismissed the petition, stating, “Nothing in the petition would support a finding by this court that

petitioner’s conviction is void or that his sentence has expired.”

On appeal, the petitioner contends that the trial court erred by summarily dismissing his

petition without appointing him counsel and that hissentences on three of the aggravated rape counts

are illegal under McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001). He claims that the Tennessee

Department of Correction processed his sentence in a manner that reflects that the offenses

committed after July 1, 1992, are to be served at one hundred percent and that the petitioner is

classified as a multiple rapist. He alleges that his plea agreement reflected that his release eligibility

date would be thirty percent. He asserts that Tennessee Code Annotated section 39-13-523 (effective

July 1, 1992) requires that the aggravated rape counts committed by petitioner in August 1992,

September 1992, and October 1992, be served at one hundred percent undiminished by sentence

reduction credits. He claims therefore that his judgments are void because they contain sentences

in direct contravention of section 39-13-523. 

The state claims that although three of the petitioner’s sentences have unauthorized release

eligibility dates, the trial court properly dismissed the petitioner’s petition because the petitioner

should have raised the issue via post-conviction. The state concedes that the sentences for the

aggravated rapes committed in August, September, and October 1992 are illegal. The state asserts

that an illegal sentence does not render an entire judgment void as long as the petitioner is being held

under a valid conviction. The state asserts that if this court determines the petitioner is entitled to

habeas relief, we should limit our holding to the three convictions for offenses occurring after July

1, 1992. 

The trial court may summarily dismiss a petition for writ of habeas corpus relief when the

petitioner does not state a cognizable claim. Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004).

A petition for the writ of habeas corpus may only be brought if the judgment is void or the sentence

has expired. Archer v. State, 851 S.W.2d 157, 163-64 (Tenn. 1993). However, if the claimed

illegality renders the judgment or sentence voidable, rather than void, no relief can be granted. Id.

at 161. A sentence imposed in direct contravention of a statute is illegal and void. Stephenson v.

Carlton, 28 S.W.3d 910, 911 (Tenn. 2000). The determination of whether relief should be granted

is a question of law which this court reviews de novo. Hart v. State, 21 S.W.3d 901, 903 (Tenn.

2000).

In McLaney, our supreme court stated that a petitioner’s sentence could be set aside at any

time as a void judgment if the face of the judgment or underlying proceedings establish that the

sentence is in direct contravention of statute. McLaney, 59 S.W.3d at 93-94 (citing McConnell v.

State, 12 S.W.3d 795, 798 (Tenn. 2000)). When “a void sentence is based upon a guilty plea, the

habeas corpus court declares void and vacates the judgment but defers to the conviction court to

address the petitioner’s guilty plea that is left pending in the wake of the vacated judgment.”
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Coleman v. Morgan, 159 S.W.3d 887, 892 (Tenn. Crim. App. 2004) (citing McLaney, 59 S.W.3d

at 94). Upon remand to the conviction court, the petitioner may withdraw the plea or the conviction

may remain. Id. (citing McLaney, 59 S.W.3d at 94-95).

In Mark L. Grimes v. Fred Rainey, Warden, No. W2002-01583-CCA-R3-CO, Lake County,

slip op. (Tenn. Crim. App. Aug. 5, 2003), a case similar to the present one, the petitioner entered

guilty pleas to three counts of rape and was sentenced to an effective thirty-six year sentence with

a thirty percent release eligibility date. Grimes, slip op. 1-2. Seven years later, the trial court

modified the petitioner’s sentence to reflect that he was a multiple rapist who must serve one

hundred percent of his thirty-six year sentence pursuant to Tennessee Code Annotated section 39-13-

523. Id., slip op. 1. Relying on McLaney, this court concluded that the petitioner’s original sentence

which provided for a thirty percent release eligibility date was in direct contravention of statute and

therefore, void and illegal. Id., slip op. 4.

The consolidated judgment form in the present case reflects thirteen convictions with the

offense dates of October 1990, November 1990, December 1990, January 1991, February 1991,

March 1991, April 1992, May 1992, June 1992, July 1992, August 1992, September 1992, and

October 1992. A multiple rapist is “a person convicted two (2) or more times of violating the

provisions of § 39-13-502 [aggravated rape] . . . .” T.C.A. § 39-13-523(a)(2) (1992). Tennessee

Code Annotated section 39-13-523 became effective on July 1, 1992, and requires that multiple

rapists “shall be required to serve the entire sentence imposed by the court undiminished by any

sentence reduction credits.” T.C.A. § 39-13-523(b) (1992). It also states, “The provisions of this

section requiring multiple rapists to serve the entire sentence imposed by the court shall only apply

if at least one (1) of the required offenses occurs on or after July 1, 1992.” T.C.A. § 39-13-523(e)

(1992) (emphasis added). 

Therefore, four of the petitioner’s convictions, not three as alleged by the petitioner and

conceded by the state, are in direct contravention of statute. The conviction for aggravated rape

occurring in July 1992 is also subject to being served at one hundred percent under Tennessee Code

Annotated section 39-13-523(e) (1992). It occurred “on or after July 1, 1992" and falls under the

reach of the statute when coupled with any and all of the nine convictions for the offenses occurring

before July 1992. We conclude that the sentences imposed for case numbers S35,427 (offense date

July 1992), S35,428 (offense date August 1992), S35,429 (offense date September 1992), and

S35,430 (offense date October 1992) are illegal and void.

The sentences for the first nine counts of aggravated rape with offense dates ranging from

October 1990 to June 1992, are not in direct contravention of a statute. Before July 1, 1992,

aggravated rape, a Class A felony, resulted in a sentence of fifteen to twenty-five years for a Range

I, standard offender to be served at thirty percent. See T.C.A. § 40-35-101 (1990). Therefore, the

sentences of twenty-five years with release eligibility at thirty percent for those nine counts of

aggravated rape are valid. 
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We remand this case to the Johnson County Criminal Court to vacate the petitioner’s rape

sentences in case numbers S35,427, S35,428, S35,429, and S35,430. The trial court should transfer

the matter to the Sullivan County Criminal Court, as the convicting court, for further proceedings

in accordance with McLaney. 

CONCLUSION

Based on the foregoing and the record as a whole, the judgment of the trial court is affirmed

in part and reversed in part, and the case is remanded to the trial court.

___________________________________ 

JOSEPH M. TIPTON, JUDGE