FILED

September 14, 1998

Cecil Crowson, Jr.

Appe llate Court C lerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1998

RONALD PARKER, ) C.C.A. NO. 02C01-9711-CC-00459

)

Appellant, )

)

) LAKE COUNTY

VS. )

) HON. R. LEE MOORE, JR.

FRED RANEY, WARDEN ) JUDGE

and )

STATE OF TENNESSEE )

)

Appellee. ) (Habeas Corpus)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF LAKE COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

RONALD L. PARKER JOHN KNOX WALKUP

Pro Se Attorney General and Reporter

Route 1, Box 660

Tiptonville, TN 38079 MARVIN E. CLEMENTS, JR.

Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243

C. PHILLIP BIVENS

District Attorney General

P.O. Drawer E

Dyersburg, TN 38024

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Ronald L. Parker, appeals as of right from the dismissal

of his petition for habeas corpus relief. The Defendant is an inmate in the

custody of the Department of Correction. According to his petition and the

exhibits attached thereto, on May 1, 1995, he pleaded guilty to and was convicted

of three counts of burglary. For these convictions, he was sentenced to three

concurrent eight-year terms in the Department of Correction. His petition for

habeas corpus relief alleged that his convictions and sentences are void because

the sentences were not ordered to be served consecutively to a prior sentence

as required by law. The trial court summarily dismissed the habeas corpus

petition, finding that the judgments of conviction were not void and that the

Defendant’s sentences had not expired. We affirm the judgment of the trial court.

Habeas corpus relief is available only when a convicting court is without

jurisdiction or authority to sentence a defendant or when that defendant’s term

of imprisonment or restraint has expired. Archer v. State, 851 S.W.2d 157, 164

(Tenn. 1993).

On appeal, the Defendant argues that at the time he was sentenced for the

three burglaries, he was on parole from a prior Tennessee sentence of twentyeight years. He therefore argues that his eight-year sentences for burglary

constitute illegal sentences because they were not ordered to be served

consecutively to his twenty-eight year sentence as required by law. See Tenn.
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Code Ann. § 40-28-123. The Defendant relies upon decisions of this Court and

of our supreme court which hold that because the law requires the trial court to

impose a consecutive sentence on any defendant convicted of a felony

committed while on parole from a state prison, jail, or work house, a trial court is

without jurisdiction or authority to enter a judgment against a defendant for a

concurrent sentence. See Archer, 851 S.W.2d at 163; Henderson v. State ex rel.

Lance, 419 S.W.2d 176 (Tenn. 1967); Taylor v. Morgan, 909 S.W.2d 17, 20

(Tenn. Crim. App. 1995).

We conclude that the Defendant’s argum ents lack merit. Initially, we note

that the judgments sentencing the Defendant to eight-year term s for burglary

provide that the burglary sentences shall be served concurrent with each other

and concurrent with a sentence from the state of Texas. The judgments make

no reference to any prior Tennessee sentences. The record on appeal contains

no evidence concerning a prior Tennessee sentence other than the Defendant’s

unsupported allegations in his petition.

Secondly, we note that a sentence for a felony comm itted while the

Defendant was on parole for another felony shall be deemed to run consecutive

to the prior sentence being served on parole whether the judgment explicitly so

provides or not. Tenn. R. Crim. P. 32(c)(3)(A). Based on the allegations

contained in the Defendant’s petition and statements made in his argument, the

Board of Paroles and the Department of Correction became aware of the prior
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sentence and correctly treated the eight-year sentences as running consecutive

to the prior sentence.

Although the Defendant alleges that his plea agreement provided that the

eight-year sentences would run concurrent with his prior sentence, the judgments

do not so provide. As we have noted, the judgments make no reference to any

prior unserved Tennessee sentence. Because the Defendant’s eight-year

sentences were not ordered to be served concurrently with a prior unserved

sentence, the eight-year sentences for burglary are not illegal and the judgment

of conviction is not void.

We conclude that the convicting court had jurisdiction and authority to

sentence the Defendant, and it is clear that the Defendant’s term of imprisonment

under his eight-year sentences had not expired. For this reason, we conclude

that the trial judge did not err in denying the Defendant habeas corpus relief.

The Defendant also alleges that his guilty pleas resulting in the burglary

convictions were not knowing and voluntary because his plea agreement

provided that his burglary sentences would run concurrent with his prior

sentences. Even if these allegations were true, they would not provide the

Defendant a basis for habeas corpus relief. These allegations could provide

grounds for post-conviction relief, assuming consideration of the allegations is not

barred by the applicable statute of limitations.
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The judgment of the trial court dismissing the Defendant’s petition for

habeas corpus relief is affirmed.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JERRY L. SMITH, JUDGE

___________________________________

JOHN K. BYERS, SENIOR JUDGE