### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
PAUL BARNETT v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Unicoi County

No. 3917 Lynn W. Brown, Judge

No. E1999-01583-CCA-R3-CD - Decided June 20, 2000

J UDGE T IPTON concurring.

I concur in the resul ts rea ched in the majority opinion. However, I respec tfully disagree withits conclusion that the petitioner = s habeas corpus claim was proper ly dismissed be

cause it was filed in the wrong county. My colleagues co

nclude that the fa

ct that all potentia

l witnesses and re

levant d ocument s exist in Unicoi County does not suffice to allow the habeas corpus action to be heard in that county as opposed to Johnson County where the pe titione r is incarcerated. They rely upon a previ ous opinion by this court in Jimmy Wayn e Wilson v. State , No. 03C01-9806-CR-00206 , Sullivan Cou nty (Tenn. Crim. App. June 24, 1999), app. denied(Tenn. Nov. 22, 1999). However, in Wilson , this court relied solely upon an order which, p ursuant to Rule 20, Tenn. Ct. Crim. App. R., carries no prec edentia l value. See Ashad Rashad Abdullah Ali Muhammad v. State , No. 01C01-9707-CC-00300, Lincoln County (Tenn. Crim. App. Dec. 18, 1997) (order).

The issue of where to

bring a habeas

corpus case pur

suant to Tenn. Co

de Ann. ' 29-21- 105 is primarily

one of convenien

ce of forum, not ju

risdic tion. I n Inman Ray McAndrews v. S tate , No. 03-C-01-9107- CR-00210, Cocke Cou

nty (Tenn. Cr

im. App. June 10, 1992) , th is cour t affirmed a grant of habeas corpus relief by the tria l court in the county of the pet itioner = s conviction whe n the pe titioner was incarcerated in Morgan County. The petitioner had a lleged that he filed in Cocke County because the trial court there had heard a ll the evidence perta

ining to the case and was familiar wi th t he sentence structure. He also asserted that the witnesses to be calledwere Cocke County residents and tha

t the record of th

e judgment was in

the cust ody o f the Cocke County Circuit Court Clerk. In consider ing whether the state waived the issue of the proper county for the ha

beas corpus a

ction, the court no

ted that A

the place of filing the application involves an issue of venue as opposed to jurisdiction. @

In this respect, I believe that whether the location of the witnesses and relevant documents

in a different c

ounty justifie

s filing a habea

s corpus petit

ion i n that county should be-2-

a case- by-c ase de termin ation. The iro ny of the pre sent ca se is th at Johnson Coun ty and Unicoi County are in the same judicial d istrict and that the

same trial judge

sits in both counties. However, the trial court ruled that the petitioner ha d f iled in the wrong county, although it used the A wrong @ county = s records to conclude that the judgment was proper. Under the particular circumstances in this case , I do n ot believe that the habeas corpus c

ase was improper

ly brought

. Moreover, if the petitioner = s allegations are true, he is the subject of an illeg al sentence whic

h is noticeable at anytime by the sentenc ing court in Unicoi County.

In the present case

, the judgme

nt of convicti on for the burglary reflects a sentence of five ye ars for a Ran ge I offender. This is improper on its face. The petitioner alleg es that he A

was un derthe presumption that the sentence would be for three (3) years @ and that the word A

five @
was added without his kn owled ge. Taking these claims as true, I believe that the petitioner = s senten ce for burglary is void. To this end, the trial court may not disbelieve the pe titioner = s allegations without a hearing . In any event his allega

tions justify t

he trial court, a

t l east, ord ering that a transcript of the petitioner = s guilty plea hearing

should be prepared, because if the transcript and the court minutes conflict, the transcript controls. See State v. Moor e , 814 S.W.2d 381, 383 (Tenn. Cri

m. App. 1991); State v. Zy la , 628 S.W.2d 39, 42 (Tenn. Crim. App. 1981).

Othe rwise, I a gree that the case should be remanded for a determination of the
corr ect nes s of the reco rd o f a fi ve-ye ar s ent ence for a Ra nge I, Cla ss D fel ony.