IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 15, 2004

ROBERT L. CLARK, JR. v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Morgan County

No. 8943 E. Eugene Eblen, Judge

No. E2004-00248-CCA-R3-HC Filed July 26, 2004

The petitioner’s judgment forms entered May 29, 1996, reflect that he pled guilty to second degree

murder, a Class A felony, committed on November 18, 1994, and possession of cocaine greater than

one-half gram with intent to sell, a Class B felony, committed on October 3, 1994. The trial court

sentenced him to twenty-five years on the murder conviction and twelve years on the cocaine

conviction. The judgments ordered the sentences to be served concurrently to each other but

consecutively to sentences for other convictions listed on the judgment forms. The petitioner filed

a petition for writ of habeas corpus relief claiming that his sentences are void because they are in

direct contravention of statutory law requiring them to be served consecutively rather than

concurrently. The trial court granted habeas corpus relief, and the State appealed. We hold that the

testimony presented by this petitioner was outside the record of the underlying convictions and

proceedings and therefore should not have been considered by the trial court. We reverse and

remand this case for a determination as to whether the record of the underlying convictions and

proceedings constitutes satisfactory proof that the petitioner was on bail for the Class B cocaine

offense when the second degree murder was committed. 

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

and Case Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and

THOMAS T. WOODALL, JJ., joined.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; J.

Scott McCluen, District Attorney General; and Roger Delp, Assistant District Attorney General, for

the appellant, State of Tennessee.

Joe H. Walker, District Public Defender, and Walter B. Johnson, II, Assistant Public Defender, for

the appellee, Robert L. Clark, Jr.
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OPINION

On May 14, 1996, the petitioner, Robert L. Clark, Jr., pled guilty to second degree murder,

a Class A felony, and possession of cocaine greater than one-half gram with intent to sell, a Class

B felony. The trial court sentenced him to twenty-five years on the murder conviction and twelve

years on the cocaine conviction. The judgments ordered the sentences to be served concurrently to

each other, but consecutively to sentences for other convictions listed on the judgment forms.

The petitioner filed a Petition for a Writ of Habeas Corpus on December 19, 2002, claiming

that his sentences are void because they are in direct contravention of statutory law requiring them

to be served consecutively to one another rather than concurrently. On June 17, 2003, the trial court

conducted a hearing to consider the matter. The petitioner testified that he was arrested for the

cocaine charge on October 3, 1994, and was released on bond the same day. The judgment form

indicates that the second degree murder was committed on November 18, 1994. The trial court

stated that it was considering the testimony of the petitioner and the dates of the offenses. On

January 26, 2004, the trial court issued an order setting aside the judgments and finding that the two

sentences are illegal in that they must run consecutively rather than concurrently. The State timely

filed notice of appeal. 

The State contends on appeal that the trial court erred in finding the judgments void and

granting habeas corpus relief. When reviewing a petition for habeas corpus relief, the determination

of whether relief should be granted is a question of law. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn.

2001) (citing Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000)). Thus, this Court’s review is de novo

with no presumption of correctness given to the findings of the court below. Id. The grounds upon

which habeas corpus relief is warranted are decidedly narrow. The writ will issue only when it

appears upon the face of the judgment or the record of the proceedings upon which the judgment is

rendered that a court lacked jurisdiction or authority to sentence a defendant or that the sentence has

expired. Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000); Archer v. State, 851 S.W.2d 157,

164 (Tenn. 1993). A habeas corpus petition may be used to challenge judgments that are void, not

merely voidable. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). “A void judgment is one in

which the judgment is facially invalid because the court lacked jurisdiction or authority to render the

judgment or because the defendant’s sentence has expired.” Id. (citations omitted). By contrast, a

voidable conviction or sentence is one which is facially valid and thusrequires proof beyond the face

of the record or judgment to establish its invalidity. Id. The burden of proof that the judgment or

sentence is “void,” rather than “voidable,” rests with the petitioner. Wyatt v. State, 24 S.W.3d 319,

322 (Tenn. 2000).

A sentence imposed in direct contravention of a statute is void and illegal. State v. Burkhart,

566 S.W.2d 871, 873 (Tenn. 1978). The petitioner alleges, and the trial court agreed, that the offense

of murder committed in case 95-97 was committed while the petitioner was out on bond for the

felony drug offense committed in case 95-271. Following guilty pleas, the trial court ordered the two

sentences to run concurrently to each other but consecutively to other, apparently unrelated, offenses.

Thus, the concurrent sentences would be in direct contravention to Tennessee Code Annotated
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section 40-20-111(b), which provides the following: “In any case in which a defendant commits a

felony while such defendant was released on bail, . . . the trial judge shall not have discretion as to

whether the sentences shall run concurrently or cumulatively, but shall order that such sentences be

served cumulatively.”

In McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001), the habeas petitioner filed a petition in the

Davidson County Criminal Court alleging that he had been released on bail on a charge in Jefferson

County when he committed two additional felonies in that county. The petitioner submitted a plea

agreement for all these charges to the Jefferson County Circuit Court. The plea agreement contained

a provision that all three of the petitioner’s sentences were to be served concurrently. The petitioner

further alleged that, because he was on bail for one felony when he committed two others, his

sentences were illegal because Tennessee Code Annotated section 40-20-111(b) and Tennessee Rule

of Criminal Procedure 32(c)(3)(C) mandated consecutive sentencing under such circumstances. In

light of this claim that his agreed concurrent sentences were illegal, the petitioner maintained his

pleas of guilty were not knowingly or voluntarily entered and should be set aside.

The Tennessee Supreme Court held that if McLaney’s allegations about being on bail when

he committed two additional felonies were true, then concurrent sentences would be in direct

contravention of the law, illegal, void, and subject to review by way of a writ of habeas corpus. The

supreme court noted that if the Davidson County habeas court determined that the allegations were

true, the Davidson County court should declare the concurrent sentences void and then transfer the

case to the Jefferson County trial court for imposition of legal sentences. McLaney, 59 S.W.3d at

92-95.

In McLaney, the petitioner had acted pro se without the assistance of appointed counsel as

requested. 59 S.W.3d at 94. 

‘Had an attorney been appointed, if the record of the underlying proceedings clearly

showed that the latter rape and burglary offenses were committed while McLaney

was on bail, appointed counsel presumably would have brought those records to the

attention of the court, and a determination whether the judgment was void could have

been resolved on the merits.’ 

Id. The petitioner in the present case was afforded the assistance of court appointed counsel.

However, counsel did not introduce any documentation contained in the record underlying these

convictions or proceedings that the petitioner was indeed out on bail when the latter offense was

committed. The petitioner’s counsel submits that he was never served with the State’s motion to

dismiss the habeas corpus petition. Therefore, “counsel had no knowledge of the State’s position

in this case” and was not aware that the necessary records would be required. We do not find the

petitioner’s argument to be persuasive. The burden was on the petitioner to prove that he was

entitled to habeas corpus relief. The only evidence contained in the record before us that the

petitioner was out on bond when the second offense was committed is his testimony at the habeas

corpus hearing. The petitioner’s testimony considered by the trial court was proof beyond the face

of the record or judgments in the underlying convictions or proceedings. Therefore, the testimony

was not properly considered in finding the judgments void. The trial court also stated that it was
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considering the dates of the offenses in determining that the petitioner was out on bond. We

conclude that the fact that the second offense was committed approximately one month after the first

offense sheds little light on his bond status. This evidence does not warrant habeas corpus relief.

However, because the petitioner may have additional evidence in the record underlying these two

convictions and the petitioner may have chosen not to introduce such evidence because the trial court

wrongfully accepted the petitioner’s testimony which is outside the record, we remand this case for

further hearing. 

CONCLUSION

 In conclusion, we reverse the judgment of the trial court granting habeas corpus relief and

remand this case for further hearing and determination as to whether satisfactory proof is contained

in the record of the underlying convictions or proceedings showing that the petitioner was on bail

for the Class B cocaine offense when the second degree murder was committed.

___________________________________ 

 JOHN EVERETT WILLIAMS, JUDGE