Wiggins v. State, No. W2008-02630-CCA-R3-HC (Tenn. Crim. App. 12/7/2009), W2008-02630-CCA-R3-HC.
| Decision Date | 07 December 2009 |
| Docket Number | No. W2008-02630-CCA-R3-HC.,W2008-02630-CCA-R3-HC. |
| Parties | JOSEPH R. WIGGINS, v. STATE OF TENNESSEE. |
| Court | Tennessee Court of Criminal Appeals |
Joseph R. Wiggins, Tiptonville, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; and Cameron L. Hyder, Assistant Attorney General, for the Appellee, State of Tennessee.
OPINION
The Petitioner, Joseph R. Wiggins, was convicted by a Davidson County Criminal Court jury of two counts of armed robbery and two counts of aggravated kidnapping and received an effective sentence of sixty years in the Tennessee Department of Correction. He filed a pro se petition for writ of habeas corpus relief in the Lake County Circuit Court which was dismissed. On appeal, the Petitioner argues that his indictment was defective and violated his due process rights because each count of the indictment failed to specify the relevant code section which would have informed him of the elements, the Class, and the punishment for each offense. Upon review, we affirm the judgment summarily dismissing the petition for writ of habeas corpus.
Background.
Prior to filing the petition for writ of habeas corpus, the Petitioner filed a petition for post-conviction relief in the Davidson County Criminal Court alleging ineffective assistance of trial counsel, which was dismissed. This court affirmed the dismissal of post-conviction relief on November 15, 1985. See Joseph Ricky Wiggins v. State, 1985 WL 3664 (Tenn. Crim. App., at Nashville, Nov. 15, 1985), perm. to appeal denied (Tenn. Mar. 3, 1986). On October 13, 2008, the Petitioner filed a petition for writ of habeas corpus in the Lake County Circuit Court claiming that his indictment was defective and violated his due process rights because each count of the indictment failed to specify the relevant code section for the offense. The petition for writ of habeas corpus was dismissed by written order on November 7, 2008. The court denied habeas corpus relief on the basis that the portion of the indictment presented to the court "state[d] the facts constituting the offenses with which he [was] being charged in a manner so as to enable a person of common understanding to know what [was] intended and with that degree of certainty which [would] enable the Court on conviction to pronounce the proper judgment." The Petitioner filed a timely notice of appeal.
The Petitioner argues that the indictment is defective because each count of the indictment failed to specify the relevant code section which would have informed him of the elements, the Class, and the punishment for each offense. In response, the State contends that the indictment met all the statutory requirements and placed the Petitioner on notice as to the charged offenses. We agree with the State.
In determining whether to grant habeas corpus relief, our review is de novo without a presumption of correctness given to the lower court's findings. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006). A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15 of the Tennessee Constitution. See also T.C.A. §§ 29-21-101 to 29-21-130. The grounds upon which a writ of habeas corpus may be issued, however, are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). "Habeas corpus relief is available in Tennessee only when `it appears upon the face of the judgment or the record of the proceedings upon which the judgment is rendered' that a convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant's sentence of imprisonment or other restraint has expired." Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). "[T]he purpose of a habeas corpus petition is to contest void and not merely voidable judgments." Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968)). "A void judgment is one in which the judgment is facially invalid because the court lacked jurisdiction or authority to render the judgment or because the defendant's sentence has expired." Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998); Archer, 851 S.W.2d at 161-64). However, "a voidable judgment `is facially valid and requires the introduction of proof beyond the face of the record or judgment to establish its invalidity.'" Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (citing State v. Ritchie, 20 S.W.3d 624, 630-31 (Tenn. 2000)); see also Summers, 212 S.W.3d at 256 (Tenn. 2007) (citing Dykes, 978 S.W.2d at 529). Thus, "[i]n all cases where a petitioner must introduce proof beyond the record to establish the invalidity of his conviction, then that conviction by definition is merely voidable, and a Tennessee court cannot issue the writ of habeas corpus under such circumstances." Ritchie, 20 S.W.3d at 633 (Tenn. 2000). Moreover, it is the petitioner's burden to demonstrate, by a preponderance of the evidence, that the judgment is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).
If the habeas corpus court determines from the petitioner's filings that no cognizable claim has been stated and that the petitioner is not entitled to relief, the petition for writ of habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20. Further, the habeas corpus court may summarily dismiss the petition without the appointment of a lawyer and without an evidentiary hearing if there is nothing on the face of the judgment to indicate that the convictions are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994), perm. to appeal denied (Tenn Nov. 28, 1994), superseded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998).
The Tennessee Supreme Court has held that "the validity of an indictment . . . may be addressed in a petition for habeas corpus when the indictment is so defective as to deprive the court of jurisdiction." Dykes, 978 S.W.2d at 529. In Danny R. King v. State, a panel of this court concluded that if the offenses in the indictment occurred prior to the November 1, 1989 enactment of the new criminal code, then the requirements for sufficiency of the indictment as stated in State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) were not controlling.1 Danny R. King v. State, No. 01C01-9710-CR-00487, 1998 WL 712345, at *2 (Tenn. Crim. App., at Nashville, Oct. 13, 1998), perm. to appeal denied, concurring in results only (Tenn. Mar. 1, 1999). Instead, for pre-1989 offenses, the panel stated that "the court must review the indictment to determine whether the challenged indictment tracks the language of the statutory offense charged." Id. It added, "[e]ven if the language of the statute is not strictly pursued, the indictment remains sufficient if words of equivalent import or more comprehensive import are used." Id. (citing Campbell v. State, 491 S.W.2d 359, 361 (Tenn. 1973)). The panel also explained that it is unnecessary for the indictment to specify the particular code section for the offense:
[R]eference to the particular code section is not required; the statute portion referred to is mere surplusage. Cole v. State, 512 S.W.2d 598[, 601-02] (Tenn. Crim. App. [1974]), cert. denied, (Tenn. [July 29,] 1974) ( mistaken subsection of statute as mere surplusage); McCracken v. State, 489 S.W.2d 48, 51 (Tenn. Crim. App. 1972), cert. denied, (Tenn. [Dec. 4,] 1972) ( reference to incorrect statute as surplusage); Harris v. State, 82 Tenn. 485 (1884) ().
Id. at *4. We note that pursuant to Tennessee Code Annotated section § 40-1802 (1975), which was in effect at the time of the offenses in this case, "[t]he indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner so as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment . . . ." T.C.A. § 40-1802 (1975); see also T.C.A. § 40-13-202 (2006).
At the time of the Petitioner's offenses, the Tennessee Code Annotated section regarding armed robbery stated:
39-3901. Robbery committed with a deadly weapon a Class X felony. — (a) Robbery is the felonious and forcible taking from the person of another, goods or money of any value, by violence or putting the person in fear. Every person convicted of the crime of robbery shall be imprisoned in the penitentiary not less than five (5) nor more than fifteen (15) years; provided, that if the robbery be accomplished by the use of a deadly weapon the punishment shall be death by electrocution, or the jury may commute the punishment to imprisonment for life or for any period of time not less than ten (10) years.
Provided further, that if the robbery be accomplished by the use of a deadly weapon and the robbery be of a business establishment which sells controlled substances classified in Schedules I-VI pursuant to chapter 14 of title 52, the punishment shall be imprisonment for life or for any time not less than ten (10) years and no person convicted of such offense shall be eligible for release classification, or parole, until such time as he has served ten (10) full calendar years of such sentence. Such offense is a Class X felony.
T.C.A. § 39-3901(a) (Su...
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