IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Remanded by Tennessee Supreme Court February 26, 2007

DWIGHT K. PRITCHARD v. STATE OF TENNESSEE

 Appeal from the Criminal Court for Davidson County

No. 3612 Cheryl Blackburn, Judge

No. M2007-00413-CCA-RM-HC - Filed April 24, 2007

This appeal is before this Court after remand by order of the Tennessee Supreme Court. The

Petitioner, Dwight K. Pritchard, appeals the summary dismissal of his petition for a writ of habeas

corpus. The Petitioner contends that the guilty pleas he entered were not knowing and voluntary

because the sentences imposed by the trial court were illegal. A recent decision of the Tennessee

Supreme Court compels our conclusion that summary dismissal was proper. The judgment of the

Davidson County Criminal Court summarily dismissing the petition is affirmed.

On Remand By Tennessee Supreme Court; Judgment of the Criminal Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L.

SMITH, JJ., joined.

Dwight K. Pritchard, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

Factual Background

When this appeal initially reached this Court, a majority of this Court reversed the judgment

of the habeas court summarily dismissing the petition, holding that our supreme court’s decision in

McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001), required the appointment of counsel and an

evidentiary hearing. See Dwight K. Pritchard v. State, No. M2005-00594-CCA-R3-HC, 2005 WL

3487842, at *5 (Tenn. Crim. App., Dec. 16, 2005) (Hayes, J., dissenting), perm. to appeal granted,

(Tenn. Feb. 26, 2007). The State filed an application for permission to appeal with the Tennessee

Supreme Court pursuant to Rule 11(a) of the Tennessee Rules of Appellate Procedure. On February

26, 2007, the Tennessee Supreme Court granted the State’s application for the purpose of remanding

the case to this Court for reconsideration in light of Summers v. State, 212 S.W.3d 251 (Tenn. 2007).
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The relevant facts remain the same:

The trial court in this habeas corpus proceeding did not grant the Petitioner’s

request for counsel, and the Petitioner is proceeding pro se on appeal. The record on

appeal before this Court contains only the petition and the trial court’s order of

dismissal. The Petitioner attached to his petition copies of five judgments of

conviction, each entered on a plea of guilty, rendered in the Criminal Court of Shelby

County. In the habeas corpus petition filed in the trial court, the Petitioner argued

that these guilty pleas were not knowing and voluntary because the concurrent

sentences imposed by the sentencing court as a result of the pleas were in direct

contravention of Rule 32(c)(3) of the Tennessee Rules of Criminal Procedure and

Tennessee Code Annotated section 40-20-111(b).

The copies of the judgments provided by the Petitioner reflect that he pleaded

guilty in Shelby County on September 24, 1998, to two counts of aggravated robbery,

two counts of possession with intent to sell over 0.5 grams of cocaine, and one count

of vandalism. The judgments further reflect that the Petitioner received ten year

sentences for each aggravated robbery and possession conviction and a two year

sentence for the vandalism conviction, each sentence ordered to be served

concurrently for an effective ten yearsentence. The offense date for each conviction

is different. According to the Petitioner, after he was charged with the first offense,

aggravated robbery (offense date of November 16, 1996), he was released on bail but

was then subsequently arrested and charged with the second offense of aggravated

robbery (offense date of February 13, 1997). The Petitioner states that he was

released on bail again after the second charge but was, thereafter, arrested and

charged with possession (offense date of November 14, 1997). The Petitioner

apparently was again released on bail before he was charged with vandalism (offense

date of August 30, 1997). Finally, the Petitioner states that he was on bail yet again

when he was arrested and charged with possession for the second time (offense date

of March 24, 1998).

In its order of dismissal, the trial court recounted the Petitioner’s statement

of facts which we have attempted to summarize above. The court noted that the

“Petitioner is correct that sentences are to be run consecutively when a defendant is

‘sentence[d] for a felony where the defendant was released on bail and the defendant

is convicted of both offenses.’” The trial court quoted the controlling language from

Tennessee Rule of Criminal Procedure 32(c)(3)(C), and also cited our supreme

court’s opinion in McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001). However, the court

ultimately denied habeas corpus relief to the Petitioner because the Petitioner failed

to provide the court with sufficient documentation showing that he was indeed

released on bail when he committed the subsequent offenses.
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Pritchard, 2005 WL 3487842, at *1. The case is again properly before this Court.

ANALYSIS

Initially, we note that the determination of whether to grant habeas corpus relief is a question

of law. McLaney, 59 S.W.3d at 92, overruled in part by Summers, 212 S.W.3d at 262. The

Tennessee Constitution guarantees a convicted criminal defendant the right to seek habeas corpus

relief. See Tenn. Const. art. I, § 15. However, the grounds upon which habeas corpus relief will be

granted are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A petition for habeas

corpus relief may only be granted when the judgment is shown to be void, rather than merely

voidable. Id. A judgment is void only when it appears upon the face of the judgment or the record

of the proceedings upon which the judgment is rendered that the convicting court was without

jurisdiction or authority to sentence a defendant or that a defendant’s sentence has expired. Archer

v. State, 851 S.W.2d 157, 164 (Tenn. 1993). 

A sentence imposed in direct contravention of a statute is illegal and thus void. Stephenson

v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000). On the other hand, a voidable judgment or sentence

is one which is facially valid and which requires evidence beyond the face of the judgment or the

record of the proceedings to establish its invalidity. Taylor, 995 S.W.2d at 83. 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). Furthermore, it is permissible for a

court to summarily dismiss a habeas corpus petition, without the appointment of counsel and without

an evidentiary hearing, if there is nothing on the face of the record or judgment to indicate that the

convictions or sentences addressed therein are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn.

Crim. App. 1994).

At the outset, we note that the Petitioner has substantially complied with the pleading

requirements for filing a petition for a writ of habeas corpus relief. See Tenn. Code Ann. § 29-21-

107. Relying on our supreme court’s ruling in McLaney, as he did in the habeas court, the Petitioner

advances the same argument on appeal: his guilty pleas were not knowing and voluntary because the

concurrent sentences imposed by the sentencing court as a result of the pleas were in direct

contravention of the law. 

Assuming the Petitioner’s factual allegations are true, the sentencing court was required to

impose consecutive rather than concurrent sentences. Tennessee Code Annotated section 40-20-111

mandates, in pertinent part, as follows: 

In any case in which a defendant commits a felony while such defendant was

released on bail in accordance with the provisions of chapter 11, part 1 of this title,

and the defendant is convicted of both such offenses, 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.
The Tennessee Rules of Criminal Procedure have recently been amended, said changes becoming effective

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July 1, 2006. See Compiler’s Notes, Tenn. R. Crim. P. (2006). However, the filing of the petition, as well as the order

of summary dismissal, predate the effective date of these amendments. Therefore, we will cite to the provision as in

effect at the time.

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Tenn. Code Ann. § 40-20-111(b). Furthermore, Rule 32(c)(3) of the Rules of Criminal Procedure

provides for consecutive sentencing under the following circumstances:

Where a defendant is convicted of multiple offenses from one trial or where

the defendant has additional sentences not yet fully served 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 explicitly so orders or not. This

rule shall apply:

(A) To a sentence for a felony committed while on parole for a felony;

(B) To a sentence for escape or for a felony committed while on escape;

(C) To a sentence for a felony where the defendant was released on bail and

the defendant is convicted of both offenses; and

(D) Any other ground provided by law.

Tenn. R. Crim. P. 32(c)(3).

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The habeas court dismissed the petition in this case because the Petitioner failed to provide

“sufficient documentation” for the court “to make the determination of whether Petitioner was

actually convicted of the offenses that Petitioner was on bond for when he allegedly committed the

offenses at issue in his instant petition.” The State contends that the habeas court properly dismissed

the petition summarily because the Petitioner did not provide factual documentation to support his

argument. Although the Petitioner attached to his petition copies of the Shelby County judgments

of conviction, the Petitioner did not present any evidence to the trial court to establish that he was,

in fact, on bail during the commission of the offenses at issue. 

In McLaney, our supreme court concluded as follows:

The trial court in this case, finding no clear proof in the documents submitted

with the petition that the sentence was void, dismissed the petition. Had McLaney

been represented by counsel, we would find no error in this dismissal. 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. Indeed, McLaney filed a motion for appointment of counsel
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and clearly had a right to appointed counsel if the trial court found him to be indigent.

Tenn. Sup. Ct. R. 13, § 1(d)(4); Tenn. Code Ann. § 8-14-205 (1997). Under these

circumstances, the trial court erred in failing to consider the motion for appointment

of counsel prior to dismissal of the case.

McLaney, 59 S.W.3d at 94 (footnote omitted). In McLaney, as in this case, the petitioner stated his

claim in terms of voluntariness of the plea; however, “[v]oluntariness of the plea . . . has no

relevance in a habeas corpus proceeding.” Summers, 212 S.W.3d at 259 (citing Archer, 851 S.W.2d

at 164.) “Instead, the determinative issue is whether the plea agreement included an illegal sentence

as a material element. If so, the illegal sentence renders the guilty plea, including the conviction,

invalid.” Id. (citing McConnell v. State, 12 S.W.3d 795, 800 n.9 (Tenn. 2001) (noting that our

supreme court’s decision was consistent with decisions of other jurisdictions that have considered

the issue)). When a Petitioner raises an issue such as this issue in a petition for a writ of habeas

corpus proceeding, “a court is limited to considering the face of the judgment and the record of the

proceedings upon which the judgment was rendered.” Id. (citing Smith v. Lewis, 202 S.W.3d 124,

128 (Tenn. 2006)).

Here, the time between the offenses—aggravated robbery on November 16, 1996; aggravated

robbery on February 13, 1997; vandalism on August 30, 1997; cocaine possession on November 14,

1997; and cocaine possession on March 24, 1998—allows for the possibility that each offense was

committed while the Petitioner was out on bail for the prior offense. Moreover, from the notation

of pretrial jail credits on the judgments of conviction, it can be circumstantially inferred that the

Petitioner was on bail at the time he committed several, if not all of, the offenses. We are unable to

distinguish this case from McLaney. 

However, based upon on our supreme court’s recent decision in Summers, we conclude that

summary dismissal predicated on the ground that the Petitioner did not provide factual

documentation to support his contention that he was, in fact, on bail during the commission of the

offenses at issue was proper. See also Fredrick L. Brown, Jr. v. Virginia Lewis, Warden, No. E2005-

02549-CCA-R3-HC, 2007 WL 529926, at *6 (Tenn. Crim. App., Knoxville, Feb. 22, 2007). 

In Summers, the Tennessee Supreme Court ruled as follows: 

For the reasons stated herein, we overrule McLaney to the extent that it can be

interpreted to require the appointment of counsel and a hearing whenever a pro se

habeas corpus petition alleges that an agreed sentence is illegal based on facts not

apparent from the face of the judgment. We hold that summary dismissal may be

proper when, as in this case, the petitioner fails to attach to the habeas corpus petition

pertinent documents from the record of the underlying proceedings to support his

factual assertions. 
See, e.g., Larry Dotson v. State, No. M2005-00436-CCA-R3-HC, 2006 WL 264269, at *3 (Tenn .Crim. App.,

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Nashville, Jan. 31, 2006), perm. to appeal granted, (Tenn. Feb. 26, 2007); Pritchard, 2005 WL 3487842, at *4; Gregory

Eidson v. State, No. M2005-00150-CCA-R3-HC, 2005 WL 1353310, at *4 (Tenn .Crim. App., Nashville, June 8, 2005);

Anthony K. Goods v. Tony Parker, Warden, No. W2003-02914-CCA-R3-HC, 2004 WL 2309901, at *3 (Tenn. Crim.

App., Jackson, Oct. 13, 2004). (footnote in original). 

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Summers, 212 S.W.3d at 254. The court explained,

Although we decline . . . to modify the holding in McLaney with respect to

the scope of the remedy when habeas corpus relief is granted, we take this

opportunity to clarify McLaney with respect to the procedural requirements for

seeking such relief. McLaney has been read to dictate that whenever a pro se

petitioner fails to attach to his habeas corpus petition pertinent documents from the

record of the underlying proceedings, he must be afforded the opportunity, with the

assistance of counsel, to cure any deficiency in his filings. This reading of McLaney 2

is inconsistent with applicable statutes and prior decisions permitting summary

dismissal, without the appointment of counsel, unless the alleged illegality is

apparent from the pro se petition and the documents attached thereto.

Id. at 259. Indeed, in this Court’s first opinion on this matter, we stated that, in cases such as these,

the trial court arguably ruled appropriately under the general principles of habeas corpus law but that

the holding in McLaney mandated a different result. See Pritchard, 2005 WL 3487842, at *3. We

note that McLaney himself would not be entitled to relief under the holding in Summers because

there was “no clear proof in the documents [McLaney] submitted with the petition that the sentence

was void . . . .” McLaney, 59 S.W.3d at 94. We now conclude that, because the judgments are

“facially valid” and the Petitioner “failed to support hisfactual assertions with pertinent documents

from the record of the underlying proceeding,” summary dismissal was proper. Summers, 212

S.W.3d at 262; see also Brown, 2007 WL 529926, at *6. 

CONCLUSION

For the reasons stated herein, we conclude that the trial court did not err by summarily

dismissing the habeas corpus petition. The judgment is affirmed.

 

______________________________

DAVID H. WELLES, JUDGE