IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 3, 2007 Session

MICHAEL DWAYNE EDWARDS v. STATE OF TENNESSEE, WAYNE

BRANDON, Warden

Appeal from the Circuit Court for Hickman County

No. 06-5020C Jeff Bivins, Judge

No. M2006-01043-SC-R11-HC - Filed September 18, 2008

GARY R. WADE, J., with whom JANICE M. HOLDER, J., joins, dissenting.

I would affirm the judgment of the Court of Criminal Appeals, and must, therefore,

respectfully dissent from the majority’s conclusion that the Petitioner has failed to establish grounds

for habeas corpus relief. Although the majority has performed an admirable analysis of the present

cases on the subject, I am of the opinion that the various principles derived from these opinions are

in conflict and, absent a reconciliation, the Petitioner is entitled to relief. Because the record of the

proceedings demonstrates that after the jury verdict, the trial court directly contravened statute by

imposing a Range III, persistent offender sentence, I would grant habeas corpus relief and remand

to the sentencing court for the imposition of a Range II sentence. 

I.

Although habeas corpus is addressed by our federal and state constitutions, the issuance of

the writ has been regulated by statute for well over one hundred years. State v. Ritchie, 20 S.W.3d

624, 629 (Tenn. 2000); Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968). The grounds for

habeas corpus relief in Tennessee appear to be broad: “Any person imprisoned or restrained of

liberty, under any pretense whatsoever, except in cases specified in § 29-21-102, may prosecute a

writ of habeas corpus, to inquire into the cause of such imprisonment and restraint.” Tenn. Code

Ann. § 29-21-101 (2000). Our case law has interpreted the statutory terminology, and we recently

defined imprisonment and restraint: 

To obtain habeas corpus relief, a petitioner must be ‘imprisoned or restrained of

liberty.’ ‘Imprisoned’ refers to actual physical confinement or detention. ‘Restrained

of liberty’ is a broader term and encompasses situations beyond actual physical

custody. However, a petitioner is not restrained of liberty unless the challenged

judgment itself imposes a restraint on the petitioner’s freedom of action or

movement.
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Summers v. State, 212 S.W.3d 251, 257 (Tenn. 2007) (citations omitted); see also May v. Carlton,

245 S.W.3d 340, 346 (Tenn. 2008). 

In practice, however, the grounds upon which habeas corpus relief may be granted are

limited. See Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004). Unlike a post-conviction petition,

for example, which may afford relief from a voidable judgment, the purpose of a state habeas corpus

petition is to contest a void judgment. Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007); State

ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968). A facially invalid or void

judgment is one that a court has no authority to enter. Dykes v. Compton, 978 S.W.2d 528, 529

(Tenn. 1998). A voidable judgment, on the other hand, appears valid on its face and always requires

proof (typically of an alleged constitutional violation) to establish its invalidity. Id. 

In making the determination as to whether a judgment is void, this Court has observed that

the writ of habeas corpus may be sustained “only when it appears upon the face of the judgment or

the record of the proceedings . . . 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); accord

Ussery, 432 S.W.2d at 658; State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (1868). Yet, this

Court has consistently added that “an illegal sentence qualifies as void and may be set aside at any

time through habeas corpus.” May, 245 S.W.3d at 346; see also Summers, 212 S.W.3d at 256. For

years, our Court has defined an illegal sentence as one that directly contravenes a statute. Summers,

212 S.W.3d at 256; see also State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978). Indeed, we have

provided specific instructions that the petition for habeas corpus, rather than a motion to correct an

illegal sentence, is the proper procedure for challenging a sentence which is not authorized by statute.

Moody v. State, 160 S.W.3d 512, 514 (Tenn. 2005).

II.

The majority has properly determined that habeas corpus relief is warranted only when the

judgment is void. Our prior opinions, however, have identified two grounds upon which a judgment

may so qualify: (1) the trial court lacked jurisdiction or authority to sentence a defendant; or (2) the

trial court imposed a sentence in direct contravention of a statute. In my view, the majority opinion

merges these previously distinct concepts by suggesting that a judgment is void, and that habeas

corpus relief is warranted, only upon showing that the trial court lacked jurisdiction. The analysis

by the majority does not address whether the record here has established that the trial court has

imposed an “illegal” and, thereby, void sentence in “direct contravention of a statute.” 

In Burkhart, the pivotal case on the subject of illegal sentences, the defendant escaped from

prison while serving a term for burglary. 566 S.W.2d at 872. He pled guilty to escape and received

a concurrent sentence even though the statute required consecutive terms. Id. When the Department

of Correction notified Burkhart that his sentence was to be served consecutively, he filed a petition

asking for relief. Id. This Court held that the concurrent sentence was imposed “in direct

contravention of the express [statutory] provisions . . . and consequently was a nullity.” Id. at 873.

Citing precedent in a number of other jurisdictions, this Court ruled that a trial judge “may correct

an illegal, as opposed to a merely erroneous, sentence at any time, even if it has become final.” Id.
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More recently, in Moody, we emphasized that habeas corpus is the only collateral remedy

for the correction of an illegal sentence. 160 S.W.3d at 514. Moody received consecutive six- and

four-year sentences for spousal sexual battery and aggravated assault. He was sentenced to an

enhanced supervised probation program, and the judgment forms required him to register as a

convicted sexual offender. He did not seek appeal of the revocation order, nor did he file a petition

for post-conviction or habeas corpus relief. When the trial court later revoked his probation, he filed

a “Motion to Correct Errors in Judgment,” challenging the legality of sentences on the basis that he

was convicted of offenses that did not require the statutorily-mandated registration. The motion was

denied, and Moody filed a petition for writ of certiorari. Id. Because the Tennessee Rules of

Appellate Procedure do not authorize a direct appeal from the denial of a motion to correct an illegal

sentence, we held that “the proper procedure for challenging an illegal sentence at the trial level is

through a petition for writ of habeas corpus.” Id. at 516. 

Having clarified that any challenge to an illegal sentence must be by a petition for habeas

corpus, we later developed procedures through which a petitioner might be permitted to establish the

illegality of a sentence where a jurisdictional defect is not apparent from the judgment. Summers,

212 S.W.3d at 261. “In the case of an illegal sentence claim based on facts not apparent from the

face of the judgment, an adequate record for summary review must include pertinent documents to

support those factual assertions.” Id. Further, “[w]hen such documents from the record of the

underlying proceedings are not attached to the habeas corpus petition, a trial court may properly

choose to dismiss the petition without the appointment of counsel and without a hearing.” Id.

Applying these principles in Summers, we arrived at the following conclusions:

Although the judgment on Summers’ escape conviction states that the sentence is to

be served concurrently with his sentences for voluntary manslaughter, aggravated

arson, and sale of cocaine, the judgment is silent as to whether Summers committed

the escape while being held for the other charges. We conclude, therefore, that no

illegality of the sentence is evident on the face of the judgment ordering a concurrent

sentence for the escape conviction. Furthermore, nothing in the record indicates that

Summers committed the escape while being held for the other charges. . . . Because

the escape judgment is facially valid and Summers failed to support his factual

assertions with pertinent documents from the record of the underlying proceedings,

we conclude that summary dismissal was proper.

Id. at 262 (emphasis added). 

Rather than mandating either summary dismissal or an evidentiary hearing where an illegal

sentence is not apparent from the face of the judgment, Summers teaches that the relevant inquiry

includes analysis of any “pertinent documents” from the record of the underlying proceedings that

are attached to the petition in support of the assertions. Thus, the procedure developed in Summers,

which directs a petitioner to attach those “pertinent documents,” necessarily recognizes a challenge

to a possible jurisdictional defect in a sentence that is “not apparent from the face of the judgment.”
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Id. at 261. That is, habeas corpus relief may be available where the illegality of a sentence must be

established by documentation other than the judgment.

Here, the Petitioner complied with the Moody guidelines by filing a habeas corpus action to

challenge his sentence for the burglary conviction in case number 12757; moreover, he followed the

procedure approved in Summers by including supporting documentation. The judgment in Henry

County case number 12757, indicating that the trial court sentenced him as a Range III, persistent

offender for the burglary conviction, is a part of the petition. Further, the Petitioner attached

documentation demonstrating: (1) that he had four prior felony convictions for offenses occurring

before the burglary in case number 12757; (2) that he had an evading arrest conviction in case

number 12756, which was referenced along with four other felony convictions on the State’s notice

of sentencing status in case number 12757; and (3) that the evading arrest conviction occurred well

after the burglary offense in case number 12757. 

Habeas corpus petitions by state prisoners are numerous and rarely have merit. In my view,

however, this is one of those rare occasions. The Petitioner has established that the trial

court directly contravened a statute by imposing a sentence that the statute did not authorize. Under

our law, the evading arrest conviction simply did not qualify as a prior offense and could not be used

in the determination of whether he qualified as a persistent offender. See Tenn. Code Ann. § 40-35-

107(b) (2006). In State v. Blouvett, 904 S.W.2d 111, 113 (Tenn. 1995), this Court stated that a prior

conviction is one “that has been adjudicated prior to the commission of the . . . offense for which

sentence is to be imposed,” and, here, it was not. Section 107 authorizes a trial court to impose

Range III, persistent offender sentencing only for defendants with five or more prior convictions.

Tenn. Code Ann. § 40-35-107(a), (c). No statute authorizes the imposition of such a sentence based

upon only four prior convictions, and/or otherwise grants a trial court the discretion to do so. See,

e.g., Tenn. Code Ann. § 40-35-210(c) (2006) (trial court’s application of enhancing and mitigating

factors). 

Unlike the majority, I see no principled distinction between this case and our decision in

Burkhart. In Burkhart, the trial court had no authority to impose concurrent sentencing, and it

directly contravened a statute by doing so. In this case, the trial court had no authority to impose a

Range III, persistent offender sentence, and it directly contravened a statute by doing so. Indeed, as

the Court of Criminal Appeals observed: “This court sees no difference between the petitioner’s

allegation regarding improper range enhancement and the improper concurrent sentences. . . . Both,

if proven true, result in an illegal sentence which warrant the granting of habeas corpus relief.”

Edwards v. State, No. M2006-01043-CCA-R3- HC, 2007 WL 92359, at *2 (Tenn. Crim. App. Jan.

11, 2007), reh’g denied (Feb. 15, 2007). In short, because a judgment is “illegal and void” when

the trial court directly contravenes a statute by imposing a sentence beyond the legislative authority,

the Petitioner, in my view, has established grounds for habeas corpus relief. 

III.

The majority treats this case, in which the trial court imposed the Petitioner’s sentence in

direct contradiction of a sentencing statute after a jury verdict, as identical to those in which the
 In McConnell v. State, the petitioner was granted relief from a sentence based upon the 1982 Criminal Sentencing

1

Reform Act rather than the 1989 Act, even though he had entered into a plea agreement; the Court explained that relief

was warranted because the plea agreement was structured pursuant to a wholly inapplicable statute, not because the

agreed sentence exceeded that available for the offender classifications. 12 S.W.3d 795, 799 (Tenn. 2000). Similarly,

in Stephenson, the petitioner was granted relief where he entered a plea of first degree murder and was sentenced to life

without the possibility of parole before the enactment of the statute authorizing that sentence. 28 S.W.3d at 911.

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judgment has been entered through a guilty plea and negotiated sentence. Here, of course, the

Petitioner neither bargained for nor agreed to a sentence higher than the permissible range, as in State

v. Mahler, 735 S.W.2d 226 (Tenn. 1987) and Hoover v. State, 215 S.W.3d 776 (Tenn. 2007). The

trial court, based upon a miscalculation of the prior offense, unilaterally imposed a sentence under

the Range III, persistent offender category rather than the Range II, multiple offender classification.

See Tenn. Code Ann. § 40-35-106 & 107. The consequence was a sentence beyond legislative

authority. 

I concede that the Court has used the term “non-jurisdictional” to describe our statutory

sentencing classifications when trying to reconcile sentencing classification errors in the context of

a plea-negotiated sentence. See, e.g., Hoover, 215 S.W.3d at 781. In Mahler, however, former Chief

Justice Harbison spoke for a unanimous Court:

It is generally true . . . that a judgment imposed by a trial court in direct contravention

of express statutory provisions regarding sentencing is illegal and is subject to being

set aside at any time, even if it has become final. In [Burkhart], the trial judge had

ordered a sentence for escape to be served concurrently with a previous sentence in

direct contravention of a statute requiring the sentence to be consecutive.

There have been other cases where sentences were imposed which were

higher or lower than that authorized by the statute designating the punishment for the

crime. In those cases the sentences have been held subject to being later vacated or

corrected.

As previously stated, that is not the situation here. The sentence imposed was

clearly within statutory limits fixed for the offense of murder in the second degree.

In our opinion any question as to the classification of appellant as a Range II offender

or as to his release eligibility was waived by the guilty plea. 

Mahler, 735 S.W.2d at 228 (citations omitted). Whatever the meaning or consequence of the term

“non-jurisdictional” in Hoover may be, we are not presented with a plea-negotiated sentence in the

present case.

Although I understand the proposition that a guilty plea cannot salvage an illegal sentence,

I am not persuaded that this maxim reconciles our existing case law. In my view, the term “non- 1

jurisdictional” is neither helpful nor clear when applied to the present case because it fails to consider

the trial court’s actions and fails to apply our traditional definition of an “illegal and void” sentence.
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Indeed, as the Court of Criminal Appeals reasoned in its order denying the State’s petition for a

rehearing:

The state cites McConnell for the proposition that offender classification and release

eligibility are non-jurisdictional. However, the state misconstrues the holding of

McConnell in which the supreme court actually commented that the use of offender

classification and release eligibility as subjects of plea bargaining are nonjurisdictional. In other words, release eligibility offender classification can be the

subject of plea negotiations and agreed to by a defendant provided that the sentence

imposed is within the statutory authority of the sentencing act. Unlike the situation

described in McConnell, the challenged judgment in this case resulted from a sentence

imposed by the trial court after a jury conviction. 

Edwards, 2007 WL 92359, at *2. Just as the concurrent sentencing for the escape in Burkhart was

in direct contravention of a statute, Range III persistent offender sentencing here also was in direct

contravention of a statute. I am unwilling to reject habeas corpus relief where the record establishes

that the trial court had no authority to impose a sentence under Tennessee Code Annotated section

40-35-107. When there is a wrong, our criminal justice system is designed so as to provide a

procedural remedy, May, 245 S.W.3d at 348, and the writ of habeas corpus, in my own assessment,

is the only cure in these circumstances.

IV.

In conclusion, I fear that the majority opinion may be read to further restrict what is already

a narrow, and yet historically vital, remedy. I would hold that the Petitioner’s sentence for burglary

as a Range III, persistent offender was illegal because the trial court lacked authority to proceed under

Tennessee Code Annotated section 40-35-107. Because the record of the proceedings demonstrates

that the Petitioner did not have the requisite number of convictions to be classified as a Range III,

persistent offender, I would grant habeas corpus relief without an evidentiaryhearing and remand this

cause to the court of conviction for the imposition of a Range II sentence.

I am authorized to state that Justice Holder joins in this dissenting opinion.

___________________________________ 

 GARY R. WADE, JUSTICE