        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                 Assigned on Briefs at Knoxville November 17, 2015

     JOYCE WATKINS v. BRENDA JONES, WARDEN and STATE OF
                         TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                           No. 39634 Chris Craft, Judge


              No. W2015-00147-CCA-R3-HC - Filed December 9, 2015


The Petitioner, Joyce Watkins, appeals the Shelby County Criminal Court‟s denial of her
petition for habeas corpus relief from her 1988 convictions for first degree murder and
aggravated rape and her effective life sentence. The Petitioner contends that the habeas
corpus court erred by denying relief because the indictment failed to confer jurisdiction upon
the trial court. We affirm the judgment of the habeas corpus court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and ROGER A. PAGE, JJ., joined.

Michael R. Working, Memphis, Tennessee, for the appellant, Joyce Watkins.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Christopher Judson Lareau, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       A Davidson County Grand Jury indicted the Petitioner and her codefendant for first
degree murder and two counts of aggravated rape of the Petitioner‟s four-year-old niece.
They were convicted of first degree murder and one count of aggravated rape. The trial court
imposed concurrent sentences of life imprisonment and sixty years, respectively. On appeal,
this court affirmed the convictions. See State v. Charlie W. Dunn and Joyce Watkins, No. 88-
241-III, 1990 WL 40988 (Tenn. Crim. App. Apr. 11, 1990), reh’g denied (Tenn. Crim. App.
May 3, 1990), perm. app. denied (Tenn. Dec. 31, 1990). The Petitioner sought post-
conviction relief, contending that she received the ineffective assistance of counsel. The
post-conviction court denied relief, and this court affirmed the denial. See Charlie W. Dunn
and Joyce Watkins v. State, No. 01C01-9504-CR-00119, 1999 WL 799338 (Tenn. Crim.
App. Oct. 8, 1999).

       The Petitioner filed the instant petition for habeas corpus relief, contending that her
convictions were void because the district attorney general struck through “Attorney
General” beneath the signature lines on the individual pages containing Counts 1 and 2 but
signed the last page containing Count 3. Because the Petitioner‟s convictions relate to
Counts 1 and 2, she argued that the lack of signatures relative to Counts 1 and 2 rendered the
indictment insufficient, deprived the trial court of jurisdiction, and resulted in void
convictions.

        At the evidentiary hearing, the indictment and the judgments were received as
exhibits. The indictment reflects that the district attorney general only signed the last page
containing Count 3 and marked through the words “Attorney General” beneath the signature
lines on the pages containing Counts 1 and 2. Defense counsel noted for the habeas corpus
court that the Petitioner was indicted before the Tennessee Rules of Criminal Procedure were
promulgated and relied primarily upon Hite v. State, 17 Tenn. 198 (1836), to support the
argument that the Petitioner‟s convictions were void because the district attorney general did
not sign each count in the indictment. Although counsel noted Tennessee Criminal
Procedure Rule 12 required a defendant to file a pretrial motion relative to a defective
indictment, counsel noted that retroactive application of the Rules violated the prohibition
against ex post facto laws. Counsel claimed that because the Rules were approved by the
Tennessee General Assembly and part of the legislative code, application of the Rules in the
present case violated the prohibition against ex post facto laws because the issue related to
the trial court‟s jurisdiction, rendering the application of the Rules a matter of substantive,
rather than procedural, law.

       The State argued that the trial court had jurisdiction in the Petitioner‟s case, that the
indictment was properly signed by the district attorney general, and that the Rules of
Criminal Procedure applied.

       Upon the habeas corpus court‟s inquiring about why the Petitioner did not challenge
the sufficiency of the indictment earlier, the Petitioner testified that she learned in September
or October 2013 that Dr. Charles Harlen, a witness for the State at her trial, was convicted of
“nine counts of lying to help the police” in various criminal cases. She said that she
unsuccessfully attempted to obtain a copy of her indictment from her five previous attorneys.
 She said she did not contact the Davidson County Criminal Court Clerk to obtain a copy of
the indictment. She said that her attorneys “disappeared” for various reasons and that she did
not have the resources to obtain a copy of the indictment.
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       In denying relief, the habeas corpus court relied in part upon Jimmy L. Smith v. Henry
Steward, Warden, No. W2012-00708-CCA-R3-HC, 2012 WL 4120478 (Tenn. Crim. App.
Sept. 19, 2012), perm. app. denied (Tenn. Feb. 12, 2013). The court found that the
indictment was properly signed and was not defective. The court found that even if the
indictment were not properly signed, the Petitioner was not entitled to relief because the
Petitioner failed to raise the issue before the trial. The court found that the Rules of Criminal
Procedure did not exist at the time the grand jury returned the indictment. However, the
court relied upon State v. Pike, 978 S.W.2d 904, 925-26 (Tenn. 1998), in finding that
application of Criminal Procedure Rule 12, requiring the Petitioner to raise before the trial
issues related to a defect in the indictment, was procedural in nature and was retroactively
applicable and that such application did not violate the prohibition against ex post facto laws.
 This appeal followed.

        The Petitioner‟s sole contention is that the habeas corpus court erred by denying her
relief because the indictment was insufficient to confer jurisdiction upon the trial court. She
argues that her convictions are void because the district attorney general marked though
“Attorney General” under the signature lines for Counts 1 and 2 and only signed the last page
of the indictment containing Count 3. She does not argue that retroactive application of the
Tennessee Rules of Criminal Procedure violates the prohibition against ex post facto laws.
The State responds that the habeas corpus court properly denied relief and that the district
attorney general‟s signature on the last page of the indictment was sufficient to confer
jurisdiction upon the trial court.

        Habeas corpus relief is generally available to “[a]ny person imprisoned or restrained
of liberty” whose judgment is void or whose sentence has expired. T.C.A. § 29-21-101
(2012); see Tucker v. Morrow, 335 S.W.3d 116, 119-20 (Tenn. Crim. App. 2009). A
petitioner has the burden of proving by a preponderance of the evidence that a judgment is
void or that a sentence has expired. State v. Davenport, 980 S.W.2d 407, 409 (Tenn. Crim.
App. 1998). A void judgment exists if it appears from the face of the judgment or the record
that the convicting court lacked jurisdiction or authority to sentence the defendant or that the
defendant‟s sentence has expired. Archer v. State, 851 S.W.2d 157, 161 (Tenn. 1993); see
Moody v. State, 160 S.W.3d 512, 515 (Tenn. 2005). In contrast, “[a] voidable judgment is
one that is facially valid and requires proof beyond the face of the record or judgment to
establish its invalidity.” Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007); see State v.
Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000).

       Post-conviction relief, not habeas corpus relief, is the appropriate avenue of relief for
certain voidable judgments. T.C.A. § 40-30-103 (2012); see Vaughn v. State, 202 S.W.3d
106, 115 (Tenn. 2006). A habeas corpus court may dismiss a petition for relief without an
evidentiary hearing or the appointment of counsel when the petition fails to state a cognizable
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claim. Yates v. Parker, 371 S.W.3d 152, 155 (Tenn. Crim. App. 2012); see T.C.A. § 29-21-
109 (2012). The question of whether habeas corpus relief should be granted is a question of
law, and this court will review the matter de novo without a presumption of correctness.
Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005).

        The record reflects that the Davidson County Grand Jury returned a three-page, three-
count indictment against the Petitioner and her codefendant. Each page of the indictment
contains one count and one signature line for the “Attorney General.” On the first two pages,
containing Counts 1 and 2 respectively, a line is marked through the words “Attorney
General.” The third and final page, which contains Count 3, reflects the signature of the
district attorney general. The Petitioner was convicted of the offenses alleged in Counts 1
and 2.

        The Petitioner again relies upon Hite to support her argument that the failure of the
district attorney general to sign Counts 1 and 2 results in a defective indictment. The
defendant in Hite was originally indicted for one theft-related offense, and the indictment
reflected the signature of the district attorney general. Later, two additional theft-related
counts were added to the indictment at the behest of an individual “purporting to have been
appointed pro tem[] by the court,” although nothing in the record showed the district attorney
general was absent. Hite, 17 Tenn. at 201-02. The purported pro tem district attorney
general signed Counts 2 and 3 of the indictment. Our supreme court concluded that Counts 2
and 3 were nullities because although it was not “absolutely necessary that [the district
attorney general‟s] signature . . . be at the conclusion of the bill,” the signature must be on the
indictment and “must show that it is intended to cover all the counts contained therein.” Id.
at 202. The court stated that because Counts 2 and 3 were not obtained by the district attorney
general, were added at a later date by the purported pro tem district attorney general, and
were nullities, no evidence showed the district attorney general‟s signature on Count 1 was
intended to apply to Counts 2 and 3. Id. at 202-03.

       We believe Jimmy L. Smith is also instructive. The petitioner in Jimmy L. Smith was
indicted and convicted of five violent crimes and received an effective 115-year sentence.
After his 1988 convictions, the petitioner sought habeas corpus relief on the ground that
although the district attorney general signed the last count in the indictment, the district
attorney general did not sign Counts 1 through 4, rendering those counts defective and void.
Jimmy L. Smith, 2012 WL 4120478, at *1. This court concluded that the indictment was not
void because the constitutional and statutory purposes were satisfied. Id. at *3 (citing State v.
Hill, 954 S.W.2d 725, 279 (Tenn. 1997) (stating that an indictment is constitutional when it
provides notice of the charges against the accused, provides an adequate basis for the entry of
proper judgments, and protects the accused against violations of double jeopardy); see T.C.A.
§ 40-13-202 (1990) (stating the statutory requirements that an indictment state the facts of the
                                               -4-
offense in ordinary and concise language)). The court further concluded that the lack of a
district attorney general‟s signature on each count of the indictment did not deprive the trial
court of jurisdiction because although “a signature is required, it is „not necessarily required
to be on each count of an indictment.‟” Id. at *4 (quoting James E. Martin v. Howard
Carlton, No. 03C01-9807-CR-00253, 1999 WL 360147, at *3 (Tenn. Crim. App. June 7,
1999)); see T.C.A. § 40-13-103 (2012). The court concluded that the district attorney
general‟s signature on the last page of the consecutively-numbered, five-page indictment
applied to the indictment in its entirety. Id. at *4.

        Hite and Jimmy L. Smith conclude that a district attorney general‟s signature is not
required for each count in an indictment but that the district attorney general‟s signature must
be on the indictment and must show that the signature is intended to apply to all counts in the
indictment. In Hite, the district attorney general‟s signature was intended only to apply to the
first count in the indictment. In Jimmy L. Smith, the district attorney general‟s signature was
intended to apply to all counts in the indictment. In the present case, the marking through
“Attorney General” under the signature line on the pages containing the first two counts of
the indictment and the signature on the page containing the third and final count in the
indictment reflects an intention that the signature apply to all three counts in the indictment.
As a result, we conclude that the indictment is sufficient and that the trial court had
jurisdiction in the Petitioner‟s case. The Petitioner is not entitled to relief on this basis.

       In consideration of the foregoing and the record as a whole, we affirm the judgment of
the habeas corpus court.



                                            ______________________________________
                                            ROBERT H. MONTGOMERY, JR., JUDGE




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