# FILED September 10, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT KNOXVILLE
MA RCH 1996 SESSI ON

EUGENE MONTGOMERY Appellant, V. STA TE OF TENN ESSEE Appellee,

FOR TH E APPEL LANT:
A. Ja mes A ndre ws Attorney at Law 606 W. Main St. Knoxvil le, Tn. 37902 )C.C.A. N o. 03C01-9507-C C-00189 ) ) Carter County ) ) Hon. Ard en L. Hill, Judge ) )(P ost- Conv ict ion Rel ief)

FOR THE APPELLEE:
Charles W. Burson Attorney Gen eral and Michael J. Fahey Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, Tn. 37243 Kenneth Baldwin Assistant D istrict A

ttorney 900 E. Elk Ave. Elizabethto n, Tn. 37643

OPINION FILED: ______________

________

REVERSED AND REMA NDED

CHA RLES LEE , Special Ju dge2 O P I N I O N

This is an appeal as of right from a judgment of the trial court summarily dismissing the appellant's petition for pos t-convic tion relief. The app ellant original ly filed a w rit of habeas cor pus. The trial court apparentl y treated t he writ as a petition for post convict ion relief and di smissed the peti tion wit hout appointing counsel or conduc ting an ev identiary

hearing. The judgment of the trial c ourt is rev

ersed. This matter

is remanded to t he trial cour t for an appointment of counsel and an evidenti ary heari ng.
The appellan t filed a suit for habeas corpus r

elief on October 29, 1992. The petition all eged that the appel lant entered in to a plea barg ain agreement to settle an ag gravated assault charg e. Accordingto the petition , the appellant and the S tate agreed hi s sentence for ag gravated assault would run concurrently

with a par

ole viol ation. The appella nt asserts th at he should be granted rel ief from his conv iction becausehis sentence i s illega l and the judgment is v

oid.

The state filed an answer urgingthe trial court to consi der the matter as a post conv iction petit ion, general ly deny ing the all egations of the pet ition and allegingno deprivation of a constitu tional rig ht.3 The trial court dismissed the ma tter referring to the action as a "post convicti on writ" simply st ating that the"... petitioner has not stated a cause of action that has not been already in effect..."

It is unnecess ary to address whether this matter s hould be treated as a habeas corpus or post conviction to resolve the issues. We note, however, that in this j urisdicti on a trial court has the di scretion to t reat a suit for habeas corpus as a s uit for post-c onviction relief if the remedy is adequate a nd appropriate to resolve t he grounds r aised. Tenn. Code An n. § 40-30-108. This Court has held that a trial court shou ld treat a habeas corpus suit as a suit for post-conviction relief when the plea dings of the parties do not com port with the r

equirements ap plicable to ha beas corpus sui ts, Trolinger v. Russell , 1 Tenn. Crim. App. 525 , 446 S.W .2d 538 (1969); or the limited relief in habeas corpus s uits prevents an adjudication on the gr ounds raised by

the petitioner, but

the grounds are cogniz able in a post- convicti on suit. See Porter v. State , 2 Tenn. Crim. A pp. 437, 455 S.W.2d 159 (1970); Richm ond v. Russell , 2 Tenn. Crim. A pp. 345, 454 S.W.2d 155 (1970).

The trial court wa s authoriz ed to treat thi s matter as one for post-conviction relief. The judgme nts entered by the trial court, if illegal, are voidable as

opposed to being void. See State v. Burkhart , 566 S.W.2d 871 (Tenn. 1978); Henderson v . State , 220 Tenn. 520, 419 S.W .2d 176 (1967). The writ of habeas corpus will not "lie to liberate a person imprisoned under a voidable j udgment as opposed to one whic h is voi d." State v. He nderson , 640 S.W.2d 56, 57 (Tenn. Crim. App. 1982)

.

The re solu tion of t his m atte r is co ntro lled by Henderson v . State , supra. In Henderson the defendan t committed a robbery with a deadly weapon while on parole for a previous conviction. The parties entered into a plea bargain4

agreement. It was agreed that the def endant would plead guilty to simple robbery, the maximum sentence would be five (5) years, and the sentence would be ser

ved concurr

ently w ith the prev ious sentence. Later, the appellant challenged the validity of his conviction on th e ground the sentence was ill egal. It w

as conceded that t he trial cour t was powerless to or

der that the sentences would be served concurrentl y as the appl icable statute mandated that the sentences must be se rved consecutively. The trial court set aside the conviction following an evidenti ary heari ng. The State appeal ed the judgment. In aff irming the judgment of the trial court, th e Supreme Court said:
After havi ng thought abo ut the matter, hear d able arguments , read the record and authorities, we agree that the trial judge was correct in his rulingherein. * * * * * * Here, there was no officia l misrepres entation. The arg ument is made as to what t hey thought would happen, and it just w as not rig ht. When it appears that

this is tr ue the accused sho uld be allowed to withdr aw his plea. 220 Tenn. at 525, 419 S.W.2d at 178, 179.
Upon remand the appellant shall be given the oppo rtunity to amend his pleadings with the guiding hand of counsel. Th ereafter, the trial court shall conduct an evidentiary hearing on the grounds raised in the appellant's pleadings.

_____________________________ Charles L ee, Spe cial Judge5

CONCUR:

____________________________ Paul G. S umme rs, Judge

____________________________ Joseph M. Tipto n, Judge