Joey D. Herrell v. Howard Carlton, Warden

The petitioner, Joey D. Herrell, appeals the trial court's dismissal of his application for his petition for the writ of habeas corpus. In six separate cases, the petitioner pled guilty to the following: theft of property under $500, aggravated robbery, aggravated burglary, especially aggravated robbery, three counts of attempted aggravated burglary, theft of property over $1000, and evading arrest. The offenses in four of the cases were committed while the petitioner was released on bond from the remaining two cases. All pleas were entered on the same day, and the trial court imposed concurrent sentencing, which resulted in the petitioner receiving an effective sentence of twenty years. He has filed the instant habeas corpus petition alleging that the imposition of concurrent sentencing resulted in illegal sentences because they were imposed in direct contravention of a statute, as he had been released on bond at the time some of the offenses were committed. The habeas corpus court and the State agreed that the sentences were illegal, and the court found that the illegal portion of the sentences was not "a material element" of the petitioner's guilty plea agreement and that, therefore, he was not entitled to withdraw the plea. Rather, the court remanded the case to the trial court for imposition of consecutive sentencing. On appeal, the petitioner disagrees and asserts that he should be allowed to withdraw the plea. Following review of the record, we agree with the petitioner, reverse the decision of the habeas court, and remand with instruction to conduct a hearing to determine whether the illegal sentences were a material, bargained-for element of the plea agreement.