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concluding that lifetime community supervision was not a material bargained-for element of the plea agreement where plea negotiations focused on the petitioner's avoidance of the death penalty and where his rape sentence was to be served concurrently with his sentence for life without parole
Summary of this case from Ross v. StateOpinion
No. E2008-02363-CCA-R3-HC.
August 26, 2009 Session. August 25, 2009 Session.
Filed June 29, 2010.
Appeal from the Criminal Court for Morgan County; No. 9240; E. Eugene Eblen, Judge.
Judgment of the Criminal Court is Affirmed.
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.
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.
OPINION
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.
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 corpus relief 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).
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.
CONCLUSION
In consideration of the foregoing, the judgment of the habeas corpus court is affirmed in all respects.
I concur with the result reached in the majority opinion, given existing precedent. I write separately, though, to express my dissatisfaction with the result reached. I believe that once the habeas court concludes that a judgment is void, whether for an illegal conviction or illegal sentence, it should transfer the case to the convicting court — a court of equal jurisdiction — for further proceedings. The habeas court should not be allowed to act further regarding the convicting case by limiting the options available to the Petitioner or the convicting court after transfer of the case.
The procedure followed in the present case stems from the interpretation this court made in Summers v. Fortner, 267 S.W.3d 1 (Tenn. Crim. App. 2008), regarding two Tennessee Supreme Court opinions. See Summers v. State, 212 S.W.3d 251 (Tenn. 2007); Smith v. Lewis, 202 S.W.3d 124 (Tenn. 2006). In Smith, the supreme court was confronted with a sentence resulting from an agreed guilty plea to rape of a child, and offense for which the statute provides for no parole. The judgment, however, reflected a fifteen-year sentence with release eligibility after serving eighty percent of the sentence. This was deemed to be an illegal and void sentence. The record before the supreme court, though, contained the entire record of the guilty plea proceedings. This record showed that the State noted to the trial court that the offense carried no release eligibility, and it also showed that such eligibility was not a part of the plea agreement. Under these circumstances, the supreme court concluded that the Petitioner was not entitled to withdraw his guilty plea because the illegal provision was not a "bargained-for element" of the plea. 202 S.W.3d at 130. The supreme court remanded the case to the convicting court to enter a legal sentence.Id.
In Summers v. State, the supreme court noted that its denial in Smith was "under the unique facts of the case," but it reaffirmed that a Petitioner was entitled to withdraw his guilty plea "when the bargained-for sentence is illegal." 212 S.W.3d at 259. Most of the Smith opinion is concerned with explaining the procedures to follow in habeas corpus cases and the need to apply sufficient information by records and other documents — not just a mere claim of an illegal sentence — when the claim is based on facts not apparent from the face of the judgment. The court concluded that the trial court's summary dismissal was proper given the Petitioner's lack of support for his assertions.
In Summers v. Fortner, this court recognized that the supreme court's decision in Smith was unique and reflected a "narrow exception to the general rule that a Petitioner is entitled to withdraw his plea when he receives an illegal sentence." 267 S.W.3d at 5. It also recognized that the supreme court'sSummers opinion clarified the procedures required when an illegal sentence is not apparent from the face of a judgment.Id. at 6.
The problem for me, though, is this court's inherent conclusion that the determination of whether a Petitioner is entitled to withdraw a guilty plea is to be made by the habeas court, not the convicting court. I see nothing in the supreme court cases that even hints at such a process being required. I believe that upon a determination by the habeas court that a conviction or a sentence is void, its duty is to vacate the judgment of conviction and to remand the case to the convicting court. Any further proceedings are within the jurisdiction of the convicting court. Thus, in this case, although the record may support a conclusion that the illegality at issue was not a material element of the plea agreement, it is the sole authority of the convicting court, not the habeas court, to determine the proper result.
Because Summers v. Fortner is binding precedent, I must concur in this case. See Tenn. Sup. Ct. R. 4(G)(2). I believe, however, that its holding should be reviewed by the Tennessee Supreme Court in this case and that the convicting court should be determined to be the forum for deciding whether or not a guilty plea may be withdrawn.