IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 13, 2013

ROGER BRENT BANKS v. CHERRY LINDAMOOD, WARDEN 

Appeal from the Circuit Court for Hardeman County

No. CC-13-CR-23 Joseph H. Walker, III, Judge

No. W2013-00458-CCA-R3-HC - Filed January 17, 2014

The pro se petitioner, Roger Brent Banks, appeals the summary dismissal of his petition for

writ of habeas corpus, arguing that the trial court lacked jurisdiction to sentence him as a

child sexual predator and that he therefore should be allowed to withdraw his guilty pleas to

aggravated sexual battery. The State acknowledges that the petitioner is entitled to habeas

corpus relief because he was erroneously sentenced as a child predator but argues that the

appropriate remedy is the entry of corrected judgments to reflect that the petitioner is to serve

his three sentences for aggravated sexual battery at 100% as a violent offender, rather than

as a child predator. We agree with the State. Accordingly, we reverse the judgment of the

habeas court and remand for entry of corrected judgments to reflect the petitioner’s correct

sentencing status.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and

Remanded for Entry of Corrected Judgments

ALAN E. GLENN, J., delivered the opinion of the Court, in which ROBERT W. WEDEMEYER

and ROGER A. PAGE, JJ., joined.

Roger Brent Banks, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Rachel E. Willis, Senior Counsel,

for the appellee, State of Tennessee.

OPINION

FACTS

On August 13, 2009, the petitioner pled guilty in the Davidson County Criminal Court

to three counts of aggravated sexual battery, a Class B felony, in exchange for a Range I
sentence of eight years at 100% release eligibility for each conviction. Pursuant to the terms

of his negotiated plea agreement, two of the sentences were ordered to be served

consecutively, for an effective sentence of sixteen years in the Department of Correction.

On the petitioner’s uniform judgment forms, the “Child Predator 100%” boxes were checked,

reflecting that his 100% release eligibility was due to his status as a child predator. In

addition, the special conditions box of the judgments contained the notation that the

petitioner was subject to lifetime supervision upon release from prison.

On January 23, 2013, the petitioner filed a petition for writ of habeas corpus in the

Hardeman County Circuit Court, alleging that his judgments were illegal and void because

the trial court lacked jurisdiction to sentence him as a child predator when he had no prior

qualifying felonies and his plea agreement did not include any provisions for sentencing as

a child predator and lifetime supervision. On January 29, 2013, the habeas court entered an

order summarily dismissing the petition on the basis that the trial court had jurisdiction to

enter the judgments. Among other things, the court noted in its order that the petitioner had

agreed to an effective sixteen-year sentence at 100% for his aggravated sexual battery

convictions and that “[t]he only place to indicate 100% on the judgment form under the facts

of this case is the place used by the trial judge.” Thereafter, the petitioner filed an appeal to

this court.

ANALYSIS

It is well-established in Tennessee that the remedy provided by a writ of habeas corpus

is limited in scope and may only be invoked where the judgment is void or the petitioner’s

term of imprisonment has expired. Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007);

State v. Ritchie, 20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport, 980 S.W.2d 407, 409

(Tenn. Crim. App. 1998). A void, as opposed to a voidable, judgment is “one that is facially

invalid because the court did not have the statutory authority to render such judgment.”

Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citing Dykes v. Compton, 978 S.W.2d

528, 529 (Tenn. 1998)). Thus, habeas corpus relief is available 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 . . . has expired.” Archer v. State, 851

S.W.2d 157, 162, 164 (Tenn. 1993) (citation and internal quotation marks omitted).

A petitioner bears the burden of establishing a void judgment or illegal confinement

by a preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

Whether the petitioner is entitled to habeas corpus relief is a question of law. Summers, 212

S.W.3d at 255; Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). As such, our review is de

novo with no presumption of correctness given to the findings and conclusions of the habeas

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court. Id.

The petitioner argues, and the State concedes, that the trial court lacked jurisdiction

to sentence him as a child predator. We agree. A trial court does not have the jurisdiction

to impose a sentence that “(1) is not authorized by the applicable statutes . . . or (2) directly

contravenes an applicable statute.” Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010)

(emphasis omitted); see also Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (“[A]

sentence imposed in direct contravention of a statute, for example, is void and illegal.”).

Examples of illegal sentences for which habeas corpus relief is permissible include

“(1) a sentence imposed pursuant to an inapplicable statutory scheme; (2) a sentence

designating a [release eligibility date] where . . . specifically prohibited by statute; (3) a

sentence ordered to be served concurrently where statutorily required to be served

consecutively; and (4) a sentence not authorized for the offense by any statute.” Cantrell v.

Easterling, 346 S.W.3d 445, 452 (Tenn. 2011) (citing Davis, 313 S.W.3d at 759).

The petitioner in this case pled guilty to aggravated sexual battery, which is one of the

enumerated offenses in Tennessee Code Annotated section 40-35-501 for which an offender

is required to serve 100% of the sentence, less sentence credits earned of up to 15%. See

Tenn. Code Ann. § 40-35-501(i)(1), (2)(H) (2010). The 100% release eligibility requirement

for the petitioner’s aggravated sexual battery offenses should have been noted on the

petitioner’s judgment form by a check of the “Violent 100%” offender box. See Barry C.

Melton v. Arvil Chapman, Warden, No. M2012-00322-CCA-R3-PC, 2013 WL 139561, at

*5 (Tenn. Crim. App. Jan. 11, 2013), perm. app. denied (Tenn. May 7, 2013). Instead, the

trial court apparently checked the “Child Predator 100%” box under the mistaken belief that

it was the proper place to designate the 100% release eligibility of the petitioner’s sentences.

Sentencing as a child predator, however, requires that the offender have been previously

convicted of one or more qualifying predatory offenses. See Tenn. Code Ann. § 39-13-

523(a)(3)(B) (2010).

A habeas corpus petitioner whose sentence contains an illegal component is entitled

to withdraw his guilty plea only when the illegal component was a “material element ” of the

bargained-for guilty plea. Summers, 212 S.W.3d at 259. We agree with the State that the

record shows only that the petitioner agreed to an effective sixteen-year sentence “at 100%”

and, thus, that the erroneous child predator status was not a material element of his plea

bargain agreement. Accordingly, the petitioner’s relief is limited to entry of corrected

judgment forms to reflect his 100% release eligibility as a violent offender, rather than as a

child predator, again with the requirement of lifetime supervision. Thus, he is to serve an

effective sentence of sixteen years at 100%.

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CONCLUSION

Because the petitioner was sentenced as a child predator when he did not have the

qualifying prior offenses and did not agree to such sentencing as part of his plea bargain

agreement, we grant habeas relief to the extent of remanding the case to the Davidson County

Criminal Court for entry of corrected judgments to reflect that his 100% release eligibility

is due to his status as a violent offender, rather than as a child predator, and that he is subject

to lifetime supervision.

_________________________________

ALAN E. GLENN, JUDGE

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