IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 25, 2009 Session

TRACY LYNN HARRIS v. JIM WORTHINGTON, WARDEN

 Appeal from the Criminal Court for Morgan County

No. 9240 E. Eugene Eblen, Judge

No. E2008-02363-CCA-R3-HC - Filed June 29, 2010

The Petitioner, Tracy Lynn Harris, appeals as of right from the Morgan County Criminal

Court’s denial of his petition for habeas corpus relief. Following our review, we affirm the

judgment of the habeas corpus court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court

is Affirmed.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN, J., joined. JOSEPH M. TIPTON, P.J., filed a separate concurring opinion.

Robert L. Vogel, attorney for appellant, Tracy Lynn Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; and John H. Bledsoe, Senior Counsel,

attorneys for appellee, State of Tennessee.

OPINION

The record reflects that the Petitioner’s convictions concern the October 30, 1998

death of Madelyn Ruth Bomar. In January 2000, the Petitioner was indicted for premeditated

first degree murder, first degree felony murder, especially aggravated burglary, and

aggravated rape. Pursuant to a plea agreement, the State dismissed the premeditated murder

and especially aggravated burglary counts and the Petitioner pled guilty to felony murder and

aggravated rape. The judgments correctly reflect the terms of the agreement that the

Petitioner would serve a sentence of life without the possibility of parole for the felony

murder conviction concurrently with a twenty-year sentence at one hundred percent for the

aggravated rape conviction. However, the judgment for aggravated rape does not include the
condition of community supervision for life as mandated by Tennessee Code Annotated

section 39-13-524.

On July 13, 2006, the Petitioner filed a petition for habeas corpus relief alleging that

the aggravated rape judgment is void because the trial court failed to impose as a condition

of his aggravated rape sentence community supervision for life. The habeas corpus court

appointed counsel and held an evidentiary hearing. See Summers v. Fortner, 267 S.W.3d 1,

6 (Tenn. Crim. App. 2008) (“when a petitioner attaches to his petition documentation from

the record showing that his sentence is indeed illegal, the trial court must appoint counsel and

hold a hearing to determine the scope of the remedy available to the petitioner”). Following

the hearing, the habeas corpus court denied habeas corpusrelief but remanded the aggravated

rape case to the trial court for the entry of a corrected judgment to include the community

supervision for life requirement. See Smith v. Lewis, 202 S.W.3d 124 (Tenn. 2006) (unless

illegality is proven to be a bargained-for element of the plea agreement, proper remedy is

remand to the convicting court for correction of judgment). On appeal, the Petitioner

contends that the habeas corpus court erroneously denied his petition for habeas corpus relief

because the community supervision condition was a material element of his plea bargain and

he should be allowed to withdraw his guilty pleas. The State argues that the Petitioner failed

to show the community supervision condition was a material element of the plea agreement;

therefore, the Petitioner is only entitled to the entry of a corrected judgment on the

aggravated rape conviction. Following our review, we agree with the State.

ANALYSIS

In Tennessee, the grounds upon which habeas corpus relief may be granted are very

narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The writ will issue only when the

petitioner has established a lack of jurisdiction for the order of confinement or that he is

otherwise entitled to immediate release because of the expiration of his sentence. See Ussery

v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell,443 S.W.2d 839

(Tenn. Crim. App. 1969). The purpose of the habeas corpus petition is to contest a void, not

merely a voidable, judgment. State ex rel. Newsome v. Henderson, 424 S.W.2d 186, 189

(Tenn. 1968). A void, as opposed to a voidable, judgment is “one that is facially invalid

because the court did not have the statutory authority to render such judgment.” See

Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007). A petitioner bears the burden of

establishing a void judgment or illegal confinement by a preponderance of the evidence. See

Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). A court may summarily dismiss a petition

for habeas corpus relief, without the appointment of counsel and without an evidentiary

hearing, if the petition does not state a cognizable claim. See Hickman v. State, 153 S.W.3d

16, 20 (Tenn. 2004).

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Relevant to our analysis is Smith v. Lewis, 202 S.W.3d 124 (Tenn. 2006), wherein our

supreme court held that when a judgment imposed pursuant to a negotiated plea agreement

contains an illegal element, the Petitioner must show that the illegality was a bargained-for

element of the plea agreement in order to set aside the conviction. Conversely, if the

illegality is not proven to be a bargained-for element, then only the sentence is void and the

habeas corpus court should remand the case to the convicting court for correction of

judgment. Id. at 128-129; but see McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001) (where

defendant bargains for and receives an illegal sentence, the result on habeas corpus review

is an option to resentence or to withdraw the guilty plea and recommence prosecution).

Thus, unless the Petitioner can prove that his guilty pleas and resulting convictions are

“infected with the illegality” caused by the absence of the community supervision condition

on the aggravated rape judgment, the only relief available is the correction of judgment upon

remand to the convicting court. Smith, 202 S.W.3d at 129.

At the evidentiary hearing, the State conceded that the aggravated rape judgment was

void on its face because the trial court failed to impose community supervision for life as a

condition of release upon service of the sentence. However, the State argued that unless the

Petitioner could prove that the condition was a material element of the plea bargain, the only

appropriate relief would be correction of the judgment by the trial court. The Petitioner

testified that there was no discussion regarding the community supervision for life condition

during plea negotiations. The plea acceptance form does not include any reference to

community supervision.

Our review of the record further reveals that the Petitioner was warned by counsel that

if he were successful in obtaining a withdrawal of the plea agreement, he could potentially

face the death penalty for the felony murder charge. The plea acceptance form also confirms

that the possible sentence the Petitioner faced for the felony murder charge included the

death penalty. The record indicates that the plea negotiations focused appropriately upon the

Petitioner’s avoidance of the death penalty and convictions for the additional offenses that

were dismissed, rather than the conditions of release from the aggravated rape sentence.

Furthermore, given that the sentence for the aggravated rape was ordered to be served

concurrently with the life without parole sentence, we deem the Petitioner’s argument that

the community supervision for life condition was a bargained-for element of the plea

agreement quite disingenuous. These considerations coupled with the Petitioner’s testimony

at the evidentiary hearing that there was no discussion of the community supervision

condition during plea negotiations lead us to conclude that neither the presence nor the

absence of the community supervision condition was a bargained-for element of this plea

agreement. Accordingly, the habeas corpus court correctly denied relief and remanded the

aggravated rape case to the trial court for correction of the judgment to include community

supervision for life.

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CONCLUSION

In consideration of the foregoing, the judgment of the habeas corpus court is affirmed

in all respects.

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D. KELLY THOMAS, JR., JUDGE

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