### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs A pril 7, 200 4
RONALD L. JOHN SON v. FLORA HO LLAND, Warden Direct Appeal from the Criminal Court for Davidson County

No. 3347 J. Randall Wyatt, Jr., Judge

No. M2003-01992-CCA-R3-HC - Filed May 10, 2004

The petitioner, Ronald L. Johnson, appeals as of right from the Davidson County Criminal Court’s summary dismissal of his petition for writ of habeas corpus. He arg ues that h is convictions for two counts of passing worthles s check s are void because they were not ordered to be served consecu tively to a sentenc e from wh

ich he ha d been pa roled at the time of

the chec k offens es, his parole subsequently being

revoked. The habeas c orpus cou rt dismisse d his petiti on without a hearing, and we affirm that a ction. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and R OBERT W. W EDEMEYER , J., joined. Ronald L. Johnson, Middle Tennessee Correctional Complex, Nashville, Tennessee, Pro Se.
Paul G. Summers , Attorne y G eneral and Repor

ter; Br ent C. Cher

ry , Assistan

t Attorne y G eneral ; Victor S. Johnson, I

II , Distric t Attorne

y G eneral ; and Kath

y Morante, A ssis tant D istrict Attorney General, for the appellee, State of Te nnessee.
OPINION
FACTS
OnJanuary 5, 2001, the petiti oner ple d guilty in the Ham

ilton County

Criminal Co

urt to two counts of pa ss in g w or th le ss ch ec ks , o ne a C la ss D f el on y an d o ne a C la ss E f

el on y. Pursuant t

o his negotiated

plea ag reemen t, he was sentenc ed by

the trial court as a care er offe

nder at 6 0% rele ase eligibil ity to concurrent terms of twelveye ars and s ix ye ars, re spective ly. Althoug h not ref lected in his judgmen

t forms, a

ccordin g to the t ranscr ip t of his guilty plea hea ring and his written plea agree ment, the sente

nces we re to be s erved c oncurre

ntly with “any other

sentences he already

ha[d].” However, the judg

ments do no t refer

to any other se

ntences. The petitioner’s parole status was not discu ssed a t the h earing.-2-

Several months late

r, the pe titioner s ent a

letter to the assistant district attorney who handled hi s case, assertin

g that he had lear ned from the Tennessee B oard of Pr obation a nd Parole that, because the offe nses to wh

ich he ha d just pled gu ilty inHamilton County were committed while he was on parole for a prior felony, his time would h ave to be serve d consec utively to his par

ole violation sentenc e. The pe titioner proposed t

hat, in lie u of his fil ing a mot

ion to withd

raw his g uilty pleas, his sentences be modified to concu rr ent terms

of twelve

ye ars and s ix ye ars at 45 % relea se el ig ib il it y, to be served c onsecuti vely to his parole violation sentence. There is nothing in the recor d to indicate whether the State responded to the petitioner’s letter. However, on September 6, 2001, amended judgments were entered , differing from the p revious judgments only be cause each provided the sentences were to be served a t 45%, rather than 60%. Each judgment was silent as to whether it was to be served c onsecuti

vely to any other se

ntence. The assis tant distr ict attor ney explained

to the trial court at the time he

present ed the amended jud

gments:
We’d sentenced [the petitioner] in 235192, count 1, to a 12- year sentenc e as a ca

reer of fender at 60 per cent, an d also in c ount 2 as a car eer off ender to 6 ye ars at 60

percen t.
Our und erstanding or our agre ement at the time -- and I reviewed it this morning to make sure that it’s correct -- was that we had said it would be run concurrent with any other sentence he would have.
He’s since

been sent t o the Depa rtment of C orre ction s [sic ], and I received a

letter from him last week that, of course the Department

of Cor rect ions [s ic], since he was apparently on pa role at the time of the offense s th at he picked up here, by statute, they’re insisting that it would have to be run consecutive.
Inhis le tter, he requested that I consider amending the judgment to make it a R

ange I II offende r at 45 pe rcent. It’s still going to be run consecutive, but based on his request, I ’m enter i ng an amended judgmen t in each case to r educe it to persistent

offender at 45 perce nt on, ag ain, 12 y

ears an d 6 years. And I’l l get ce

rtified c opies of t

his and se nd, forw ard him a letter that I’ve complied with his request, fore go the need for any kind of post conviction petition or any thing lik e that. Ho

pefully this will satisfy him.
THE COURT: All r

ight. Yo u’re doi ng that t o more ne arly af fe ct wh at y ou i nte nde d to do a t th e t ime ? [ASSISTANT DI STRI CT ATT ORNE Y]: Yes, sir. Yes, sir.1 Th e date stamp on this d ocu men t is illegible. -3-

The file does not reflect whether the State had verified

independently the pe

titioner’s parole status or, simply, had relied on the pe titioner’s claim in his earlier letter.
Sometime in late December 2002 or early January 2003, the petitioner filed a pro se petition for a writ of habea s corpus. 1 In an amended petition filed on April 23, 2003, af ter the appointment of counsel, the petitioner

alleged that he was on parole at the time he committed at least one of the passing worthless check offenses, that the sentenc es imposed directly violated state law requiring that offenses committed while on parole be served conse cutively to a sentenc e for parole violation, and that the ju

dgments were therefore void when ente red. The petitioner further alleged ther e was no authority

for his re sentenc ing eig ht months after the

entry of his gu

ilty ple as and tha

t his sentenc es, as amended, rendered his guilty pleas unknowing and involuntary

. Although both the pro se and amended petitions recited that the petitioner was on parole whe nhe committed the offenses uponwhich the

two judg ments in question were based, neither present ed any document

ation of th

is allege d fact.
The habeas c ourt summa

rily dismissed t

he petition on July

8, 2003, ruling that

the petition did not state any g

rounds for

habeas corpus relief, and subsequently denied the petitioner’s motion to reconsider. After waiving counse l onappeal, the petitioner filed a pro se notice of appeal t o this court in which he challenges the summary dismissal of his petition.
ANALYSIS
It is well es tablish ed in

Tenness ee that the remed y pr ovided by a writ of habeas c orpus is limitedin scope a

n d may only

be invoked where the judgment is void or the petitioner’s term of imprisonmenthas expired. State v. Ritchie , 20 S.W.3d 62 4, 629 (Te nn. 2000) ; State v. Davenport , 980 S.W.2d 4 07, 409 (Tenn. Crim. App. 1998) . A void, as opposed to a voidable, judgment has been defined by our

supreme court as “one in which the judgment is fac ially invalid bec ause t he court did not have the statutory a

uthority to render suc

h judgment.” Dykes v. Compton , 978 S.W.2d 528, 529 (Ten

n. 1998); see also Taylor v. State , 995 S.W.2d 78, 83 (Tenn. 1999). Thus, habeas corpus relief is available only when “‘it appears upon the face of the judgment or

the record of the procee dings upon which the judgment is rendered’ that a convicting court was without jurisdiction or authority to sentenc e a defe

ndant, or that a defendant’s sentence of imprisonment . . . has expired.” Archer v. State , 851 S.W.2d 157, 164 (Tenn. 1993) (quot ing State v. Galloway , 45 Tenn. (5 Cold.) 326, 336-37 (1 868)). “ The burd en of pro of that the

judgmen t is ‘void,’ rather

than ‘voi dable,’ rests with the petitioner. That burden entails showing that thejurisdictional defect appears in the record of the or i ginal trial, thereby creating a void judgment.” McLa ney v. Bell , 59 S.W.3d 90, 92-93 (Tenn. 2001) (citations and footnote omitted). Because the deter mination of whether a wri t of habeas corpus should be granted is a matter of law, we review the habeas court’s summary dismissal of the petition de novo , with no presumption of correctness. Id. at 92.-4-

A sentence imposed in direct contravention of a stat ute is illegal and therefore “void or voidable depending upon whether the illegality of the se

ntence is evident on the face of the judgment or the record of the underly ing proceedings.” McLaney , 59 S.W.3d at 94 (ci ting Stephenson v. Carlton , 28 S.W.3d 910 , 911 (Te nn. 2000) ); see also State v. Burkhart , 566 S.W.2d 871, 873 (Tenn. 1978). The petitioner alleges that his offenseswere committed while he was on parole for a prior fel on y. If

such were the case, the petitioner is corre ct in asserting that his sentences could not lawfully be run concu rrent ly with t ime he was al ready serv ing on his parole violation. Tennessee Code Anno tated se ction 40- 28-123(a ) (1997 & Supp. 2001)

provides in pertine

nt part: Any prisone r w ho is co nv ic te d i n t hi s s ta te of a f el on y, committed

while on p arole from a state prison, jail or workhouse, shallserve the remainde r of th e sentence under which the prisoner was paroled, or such

part of that sentence, as the board may determine before the prisoner commences serving the sentence received for the felony committed while on par ole.
Inaddition, Tennessee Rule of Criminal Procedure 32(c)(3), “Mandator y Consecutive Sentence s,” provides : Where a defen dant is convicted o f multiple offenses from

one trial or wher

e the def endant ha s additional sente nces not y

et fully served as the result of

the convictions in the same or other court and the law requires consecutive sentence s, the sentence shall be consecutive whether the judgment explicitly so orde r s or not. Th

is rule sha ll apply : ( A) to a sentence for a felony committed while on parole for a felony [.]
The State con

tends tha t the judg ments are voidable , rather

than void, because

neither th e judgmen ts on their face nor

the record of the underly

ing proceedings revea

ls that the petitioner

was onpar ol e at th e ti me h e co mm it ted th e of fen ses . In support, the State cites the assistant district attorney’s statement to the trial court, made during the guilty plea hearing, that the plea agreement was for the petitioner’s sentences to run concurre ntly to any

other sentences he had, but he was “not sure exactly what other sente nces he ha[d].” The State add ition ally argue s that, ev en if the

facts presented by the petitioner wer

e true, the illegal sentencing issuewas appropriately resolved by the amende d judgment, which incorporated the terms proposed by the petitioner and agreed to by th e Stat e. The petitio ner res

ponds by assertin g that th e State a

nd the tria

l court e ither we

re or sho uld have been aware of his parole status at the time he committed the offense s, that a sentence in direct contravention

of a statute is illega l and void, and that he never agree d to the amended jud gments, whichwe re entered w ithout his consent or presence and without the knowledge or pr esence of counsel.-5-

In McLaney

v. Bell , our supreme court held that where the face of a judg

ment or the record of the underlying

proceedings demonstrates that a petit ioner receiv ed ill egal con curren t sent encin g, the judgme

nt of convi ction is void and habeas corpus relief is available. 59 S.W.3d at 91. The petitioner in McLaney

alleged tha

t his plea b argain agree

ment resulted in an illegal concurrent sentence, in violation of the statute that requires consecutive sentencing when a felony is committed when a defendant is on

bail from a prior felony

. Id. at 92. Our supreme court reversed the summary dismissal of the petition and remanded the case to the habea s court for the appointment of counsel and an evidentiary

hearing. Id. at

95. The c ourt instr

ucted tha t, should the habeas court determine that t he petitioner

was on bail when he committed the offenses and thus that the sentence s he received were void, it should transfer the case to the convicting court, where the peti tioner wo uld be entitled t

o withdra w his guilty pleas a

nd proceed to trial for the offenses. Id. at 95-96. The court ex plained, however, that it would have reached a diff erent result had the pro se petitioner been repres ented by

counsel:
The trial cou

rt in this c ase, fin

ding no c lear pr

oof in the document s submitted w

iththe petition that the sentence was void, dismissedth e petition. H ad McL aney been re present ed by counsel, we would find no error in this dismissal. Had an attorne y bee n appointed, if

the record of

the underlying

proceedings clearly

showed that the latte r rape a nd burg lary

offense s w ere com

mitted whil e McLaney was on bail, appointed counsel presumably woul d hav e brought those re cords to the attention of the court, and a determ in ationwhether the judgment was void could have bee n resolved on the merits.
Id. at 94.
Based upon this lang

uage f rom McLaney

, we conc lude that

the cour t was cor rect in dis missing the petition. Neither the original petition nor the amended version filed by c ounse l presented any documenta

tion that the petitioner was on parole when hecommitted the two offenses whichare the basis for this a ppeal. T he trans cript of t

he proce edings w

hen the a mended ju

dgments were entere d likewise

is unhelpful to the petitioner, for it does not reflect that the State did other than accept the petitioner’s claim before presenting th e a me nd ed ju dg me nt s t o t he co ur t. Ac co rd in gl y, the judgments are, at best, voidable and not the basis for g ranting relief.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judg ment of the habeas court dismissing the petition.

___________________________________ ALAN E. GL

ENN, JUDGE