Author Ray Turner v. David Mills, Warden - Concurring

I concur with the majority opinion. As indicated in the opinion, I have criticized Summers v. Fortner, 267 S.W.3d 1 (Tenn. Crim. App. 2008), for its holding that a habeas court, not the convicting court, is to determine from the existing record if a petitioner subjected to an illegal sentence should be allowed to withdraw a guilty plea. I believe it misinterprets Smith v. Lewis, 202 S.W.3d 124 (Tenn. 2006). In Smith, a habeas corpus case, after the court concluded that an illegal sentence had been imposed, it determined from the guilty plea record that the plea to the relevant charge was not material to the “bargained-for” agreement and resulting effective sentence and held that the petitioner was not entitled to withdraw that guilty plea. Id. at 130. It distinguished the case from one in which the illegal sentence materially resulted from a plea agreement. See Henderson v. State ex rel. Lance, 419 S.W.2d 176, 178-79 (Tenn. 1967) (holding that defendant was entitled to withdraw guilty plea upon habeas corpus proceedings where he pled guilty in exchange for an illegal sentence).