Opinion
C.C.A. No. M1998 00187 CCA R3 CD.
November 29, 1999.
DAVIDSON COUNTY, Hon. J. Randall Wyatt, Jr., Judge, Petition for Writ of Habeas Corpus.
AFFIRMED
For Appellant:
Jackie W. McLaney, TDOC # 113694.
For Appellee:
Paul G. Summers, Attorney General and Reporter, Kim R. Helper, Assistant Attorney General, Criminal Justice Division.
OPINION
The petitioner, Jackie McLaney, appeals the summary dismissal of his petition for a writ of habeas corpus by the Davidson County Criminal Court on June 22, 1998, without the appointment of counsel or an evidentiary hearing. Following a thorough review of the record and the parties' briefs, we affirm the judgment of the trial court.
On November 10 and 12, 1986, the petitioner pled guilty in the Jefferson County Circuit Court to aggravated rape, rape, and third degree burglary. According to the petitioner, he pled guilty in all three cases pursuant to a plea agreement which provided for concurrent sentences of forty years incarceration in the Tennessee Department of Correction for the aggravated rape conviction, twenty years incarceration for the rape conviction, and seven years incarceration for the burglary conviction. The petitioner filed the instant petition for a writ of habeas corpus on April 7, 1998. The gravamen of the petitioner's complaint is that he was released on bail in the aggravated rape case when he committed the rape and burglary offenses and, accordingly, concurrent service of his sentences directly contravenes Tenn. Code. Ann. § 40-20-111(b) (1986) and Tenn.R.Crim. P. 32(c)(3)(C). In sum, the petitioner argues that his concurrent sentences are illegal and subject to being set aside at any time.See, e. g., State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987) (citing State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)).
The petitioner also filed a petition for post-conviction relief in the aggravated rape case two months following his convictions. In his post-conviction petition, the petitioner alleged ineffective assistance of counsel and challenged the voluntariness of his guilty plea. This court affirmed the post-conviction court's denial of relief. State v. McClaney, No. 74, 1988 WL 30180 (Tenn. Crim.App. at Knoxville, March 31, 1988).
The Habeas Corpus Act requires a court to review a petition and dismiss it unless it alleges a cognizable ground for relief. Tenn. Code Ann. §§ 29-21-101 to -109 (1980). In other words, a petition for a writ of habeas corpus may be summarily dismissed by the trial court without appointment of counsel, without an evidentiary hearing, and without the opportunity to amend the petition, if the face of the petition does not present a cognizable claim. Mitchell v. Carlton, No. 03C01-9704-CR-00125, 1998 WL 8505, at *2 (Tenn.Crim.App. at Knoxville, January 12, 1998). See also State ex rel. Byrd v. Bomar, 381 S.W.2d 280, 283 (Tenn. 1964). Conversely, if necessary to the resolution of a petition for a writ of habeas corpus, the trial court should appoint counsel and conduct an evidentiary hearing. Tenn. Code. Ann. § 40-14-204 (1997); Russell v. State ex rel. Willis, 437 S.W.2d 529, 531 (Tenn. 1969).
In order to present a cognizable claim, a habeas corpus petition must allege a void and not merely voidable judgment of conviction.Archer v. State, 851 S.W.2d 157, 163 (Tenn. 1993); Passarella v. State, 891 S.W.2d 619, 628 (Tenn.Crim.App. 1994); Donald v. State, No. 01C01-9710-CR-00481, 1998 WL 468646, at *1 (Tenn.Crim.App. at Nashville, August 12, 1998), perm. to appeal denied, (Tenn. 1999). In other words, the petition must allege that the face of the judgment or the record of the proceedings upon which the judgment is rendered conclusively demonstrates that the trial court was without jurisdiction or authority to sentence the petitioner. Archer, 851 S.W.2d at 164.
In Taylor v. State, 995 S.W.2d 78, 84-85 (Tenn. 1999), our supreme court cited both Burkhart, 566 S.W.2d at 871, and Henderson v. State ex rel. Lance, 419 S.W.2d 176 (Tenn. 1967), for the proposition that, notwithstanding any plea agreement, concurrent sentencing in direct contravention of a statute requiring consecutive sentencing renders a judgment of conviction void and not merely voidable. Accordingly, assuming that the record of the underlying proceedings reflects the petitioner's release on bail in the aggravated rape case at the time of the rape and burglary offenses, concurrent service of the petitioner's sentences for the aggravated rape, rape, and burglary offenses contravenes Tenn. Code. Ann. § 40-20-211 and Tenn.R.Crim. P. 32(c)(3)(C), and the judgments of conviction in those cases are void.
The record of the underlying proceedings is not before this court.
However, our conclusion that the petitioner has alleged void and not merely voidable judgments of conviction does not alone render the petitioner's claim cognizable under Tennessee's habeas corpus statute. The petitioner must also allege that, due to the void nature of his judgments of conviction, he is eligible for discharge from custody, the sole relief available under the habeas corpus statute from which the Davidson County Criminal Court derives its jurisdiction in this case. Tenn.Code.Ann. § 29-21-122 (1980) See, e. g., Taylor v. Morgan, 909 S.W.2d 17, 20 (Tenn.Crim.App. 1995).
Even assuming once again that the record of the underlying proceedings reflects the petitioner's release on bail in the aggravated rape case at the time of the rape and burglary offenses, the petitioner is entitled to one of two remedies, neither of which the Davidson County Criminal Court possesses the power to provide under the habeas corpus statute. On the one hand, the petitioner alleges that his guilty pleas in the aggravated rape, rape, and burglary cases were conditioned upon the concurrent service of the sentences. Thus, if the appellant were to bring the illegal sentences to the attention of the convicting court, the court would need to determine if the pleas were so conditioned. If so, the petitioner would be entitled to withdraw his guilty pleas and proceed to trial. Burkhart, 566 S.W.2d at 873; State v. Ervin, No. 03C01-9707-CC-00311, 1998 WL 681299, at *2 (Tenn.Crim.App. at Knoxville, October 2, 1998). On the other hand, if the trial court determined that the guilty pleas were not so conditioned, the court would simply correct the illegal sentences to provide for consecutive sentencing. Id. Neither form of relief would entail the petitioner's discharge from custody within the meaning of Tenn. Code. Ann. § 29-21-122.
For the forgoing reasons, we affirm the judgment of the trial court dismissing the petition for habeas corpus relief.
________________________________________________________ Norma McGee Ogle, Judge
CONCUR:
__________________________________________________ David G. Hayes, Judge
__________________________________________________ Jerry L. Smith, Judge