### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs November 7, 2001 ROBERT A. AT KINS v. JAM ES M. DUKES, WARDEN Direct Appeal from the Circuit Court for Lauderdale County

No. 5497 Joseph H. Walker, Judge

No. W2001-01311-CCA-R3-CD - Filed January 8, 2002

The petitioner, Robert A. Atkins, appeals thesummary dismissal of his petition for writ of habeas corpus by the Lauderdale County Circuit Court. Following a thorough review of the record and applica ble law, w e rever se the jud gment of th

e circu it court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Cir

cuit Cour

t Rever sed and Rem anded.
T HOMAS T. W OODALL , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OE G. R ILEY , J., joined. Robert A. Atkins, Henning, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; and Peter M. Coughlan, Assistant Attorney General, for the appellee, State of Te nnessee. OPINION Background
The record

on appea l is somewhat sparse. However, we have gleaned from it the following procedural history wh

ich led to Petitioner ’s reque st

for habeas corpus relief. In 1985, Petitioner was convictedof secon d degree murder and a sentence of twenty yea rs was imposed. He was sub se quently

arrested on felony drug charges, committed while he w as on parole for the murder conviction. Petitioner pled guilty to three felony drug offenses and received a sentence of three years a nd six months f

or each offense. The trial court or dered the drug offense sentence s to be served concurr ently with each other. Pe

rtinent to the habeas corpus petition, and this appeal, the convicting court further ordered that the felony drug offe nse sentences be served concurrently with his sentence for second d egree m urder. A pparent ly, his parole relating to the murder case was re voked. At

some point, the Depa

rtment of Correct ion then no tified Pet

itioner th at all thr

ee sente nces for th e felo ny drug convictions must be served consecu tively to the sentence for second degree mur der.-2-

On April 18, 2001, Petitioner filed his petitio n for wri tof habeas corpus which alleged the following: (1) the order imposing concurrent sentencing pursuant to Pet itioner’s negotiated plea agreement

directly contravenes Tennessee Code Annotate d s ect ion 40-28-123 and is, therefore, ille gal; (2) even though concurrent sentences a re illegal, the Tennessee Department of Corre ct io n is notvested w ith the authority to modify or alter his sentences to run consecutively; (3) Petitioner is entitled t

o immediat

e relea se beca

use his sentence for the murder conviction has expire d; and (4) the Tennessee Department of Correction er red by failing to apply 282 days of jail credit t o Petitioner’s sentence, a s ordere d in the jud gment per

taining to h

is felony drug posse ssion/sale convictions.
In an order dated April 20, 2001, the Lauderdale County Circuit Court dismissed the petition and concluded the following: (1) ti me credits are “internal departmental matter s” which are inapprop riate for a habeas corpus procee ding and must be ad dressed via proc edures s et forth in the Uniform Administrative Procedures Act, Tenn. Code Ann. § § 4-5-101 to -324; (2) habeas corpus relief is availa ble only in

cases where the defendant’s se ntence has expired or when it appears on the face of th e judgm ent or in the record of the underlying procee dings that a convicting court was without jurisdiction or authority to sentence a defendant, thereby rendering the judgment

void, and Peti tioner did not allege either ground in his petition; and (3) since habeas corpus re l ief i s inappropriate, and the Lauderdale County Circuit Court was not the proper c ourt in

which to file a claim for post-conviction relief, the petition must be dismissed.
In this appeal, Petitioner challenges the circuit court’s summary dismissal of his petition for writ of habeas corpus, restat ing the f ollowing allegations contained therein: (1) Petitioner was sen tenced in direct contravention of Tennessee Code Annotated se ct ion 40-28-123, which effectivel y “nullifie s” the judgme nt concerning his felony drug offenses; (2) the Tenne ssee Department of Correc tion unlawfu lly modifie d Petitione r’s sente nce to require tha

t he serv e the sen

tence f or his recent felony drug offenses consecutively to his previous sent ence, ra ther than concurrently as provided in his negotiated plea agreement; and (3) since Petitioner’s original sentence has expired and the alteration of

his sentence agreement was unlawful, his continued detention is also unlawful and immediate release is warranted. For the rea sons which follow, we reverse the judgment of the circuit court and remand this matter for further pr oceedings consistent with this opinion. Analysis
The determination whether habeas corpus relief is proper is a question of law. McLaney v. Bell , 59 S.W.3d 90, 92 (Tenn. 2001) (citing Hart v. State , 21 S.W.2d

901, 903 ( Tenn. 200 0)). Thu s, our review is de novo , with no presumption of correctness given to the findings of the lower court. Id.
The grounds upon which habeas corpus relief is warran ted are decided ly narro w. The wr

it will issue only when it appears upon the face of the judgment or the re cord 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 (Te nn. 2000) ; Archer v. State , 851 S.W.2d 157, 16 4 (T enn. 1993). A habeas corpus petition may be used to challenge-3-

judgments that are void, and 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 inva lid because the court lacked jurisdiction or author

ity to rend

er the ju dgment or

because th e defendant's sentence has expired.” Id. (citations omitted). By contra st, a voida ble convi ction or s entence is one whic

h is facially valid, and thus requires 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 tha n “voida ble,” rests with the petitioner. Wyatt v. St

ate , 24 S.W.3d 319, 322 (Tenn. 2000).
As relevant here, our supreme court ha s recogni zed that a s entence imposed in direct contravention of a

statute, for example, is void and illegal. Statev. Burkhart , 566 S.W.2d 871, 873 (Tenn. 1978). Th

us, we fir st note tha

t if it was true that Petitioner was on parole when he committed the felony dr

ug offen ses for w

hich he pl ed guilty, concurr ent sentence s would be in direct contravention of Tennessee Code Annotated section 40-28-123, which provide s in pertinent part the following: Any prisoner

who is convicted in this state of a felony, committe d while on p arole from a state prison, jail or workhouse, shall serve the remainder of the sentence under which the prisoner was paroled, or such part of that sentence, a s the board may determine beforethe prisoner commences s erving the sentence received for the felony committed while on parole.

Tenn. Code Ann. § 40-28-1 23(a) ( 1997) (e mphasis a dded); see also

Tenn. R. Cr

im. P. 32(c)(3)(A).
The recent decision by our supreme court in McLane y v. Bell , 59 S.W.3d 90 (Tenn. 2001), is directly on point and controls disposition of the case sub judice

. In that case, the supreme court specific ally held that “if the face of the judgment or the record of the underlying proceedings shows that th e concurrent sentence is illegal, such sentenc e creates a void judgment for which habe a s corpus relief is available.” Id. at 91. According to the alle gations of the petiti on in this case, concurrent sentencing was or dered in direct contravention of a statute re quiring consecutive sentencing. This situation mirrors that presented to the supreme court in McLaney

. Thus, we conclude that the relief granted in McLaney is the relief appropriate for this case. Specific ally, the supreme court in McLaney held:
If [the pet itioner’ s] allegations that the latter offenses were committed while he was
on bail are proven in the record of the underl ying convictions, th en the se ntence i s void and the habeas corpus court is mandated by statut e to decl are it

so. If the sentence is void, then either the plea may be withdrawn or the conviction remains intact. If the plea

is withdrawn, then [t

he petitio ner] would be ord ered he ld to bail pending prosecution for

the offense; if the co nviction r emained intact, th en he wou ld be committed to custody pending resentencing. Thus, there is legal cause for-4-

continued detention pending further proceedings. Therefore, the habeas cor pus court would be required, after voiding the judgment, to remand the case to the trial court . . . for further appropriate action.
Id. at 94-95 (citations omitted).

We note that even though the defendant in McLaney was granted concurrent sentence s for
a felony committed while on bail for another felony conviction, the result is the s ame under the statute providing

for conv iction of a felony c ommitted wh

ile on parole for a prior

felony conviction. Compare Tenn. Code An n. § 40-20-111(b), and Tenn. R. Crim. P. 32(c)(3)(C), withTenn. Code Ann. § 40-28-123(a), and Tenn. R . Crim. P. 32(c)(3)(A). Further, we note that the order of concurrent

sentenc in g i n the felony drug convictions would not affect the validity of the murder conviction. Therefore, the judgment of the trial court summarily dismissing the petition for writ of habeas corpus in

Peti tio ner’s case is reversed, and this case is remanded to the Circuit Court of Lauder dale County for appointment of co uns el and an evidentiary hearing. At the evidentiary hearing, the trial court must determine whether Petitioner committed the felo ny drug of

fenses w hile he was on parole fo r the pri or felony conviction of murder. If the trial court is satisfied that Petitioner c om mitted the felony drug offenses while on parole for a pr ior felony conviction, then the sentences for the felony drug convictions are void a nd the habeas corpus court is mandate d to declare it so. In do ing such, t he habe as corpu s court mu st th en remand the case to the Criminal Courtof Shelby County, where the drug convictions arose. In that court, Petitioner may withdraw his guilty pleas to the felony drug offenses. If the pleas are withdrawn, he may be ordere d held to bail pending p rose cution for those offenses. If he chooses not to withdraw his guilty pleas, the convictions shall remain intact, and the Petitioner would be committed to custody pending resentencing.
Petitioner also argues in his brief that the trial cou rt erre d by failing to rule

that the Tennessee Department

of Correction illegally “altered” his sentence in direct contra vention of the judgment ordering concurrent sentences. However , Rule 32(c)(3) of the Tennessee Rules of Crimi nal Procedu re, cap tioned “M andator

y Consecu

tive Sente nces,” p rovides a s follows:
Where a defendant is convicted of multiple offenses from one trial or whe re the defendant has additional sentences not yet fully ser ved as the result of the convictions in the same or other court and the law requires consecutive sentences, the sentence shall be consecutive whether the judgment explicit ly so orders or not . This rule shall apply: (A) to a sentence for a felony committed while on parole f or a felony; (B) to
a s entence for escape or for a felony committed while on escape; (C) to a sentence-5-

for a felony where the defendant wa s released on bail and the defenda nt is convicted of both offenses; and (D) any other ground provided by la w. (Emphasi s added). Therefore, by rule, the Depar tment of Correction was required to treat the sentences as consecutive, “whether the judgment explicitly so orders or not.” Finally, Petitioner argues that both his sentences for murder and for the felony d rug sentences have “expired.” However, the record, in its present status, does not reflect same.
While Petitioner

states in his brief that he was “indicted and sentenced” (emphasis added), to serve tw enty yea

rs for a second d

egree m urder of fense on April 30, 1 985, ther

e is no oth e r documentation in the record which clearly reflects the date of his conviction for second degree murder. In fact, certain documents attached to the pe tition as “exhibits” indicate the second degree murder offense was commi

tted in April 1985. In any event, the record does not permit a conclusive determination that the sentence for second degree murder has expired. Given that the law requires consecutive sentencing, the additional three and one-half yea r sentences for

the felony drug offenses received for thes e convic tions in Apr il 1999 hav e, likewi se , not expired . There fore, D efenda nt is not entitled to relief on this issue.
CONCLUSION
The judgment of

the Laud erdale Circuit Court summarily dismissing the petition for writ of habeas corps is reversed. This case is remanded f or appointment of counsel and for an evidentiary hearing in compliance with McLane y v. Bell , 59 S.W.3d 90 (Tenn. 2001). If, following thehearing, the trial court determines that the felony drug conviction judgments are void pursuant to McLaney , the habeas corpus court must remand the felony drug cases to the Criminal Court of Shelby Coun

ty for proceedings consistent with the supreme court’s opinion in McLaney

.

_ ___________

_________________________ _ THOMAS T. WOODALL, JUDGE