        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs January 13, 2009

     MELVIN L. COFER v. WAYNE BRANDON, WARDEN, STATE OF
                          TENNESSEE

                  Direct Appeal from the Circuit Court for Wayne County
                          No. 14409       Robert L. Jones, Judge



                 No. M2008-01266-CCA-R3-HC         - Filed March 6, 2009


In 2001, a Hardeman County jury convicted the Petitioner, Melvin L. Cofer, of one count of
driving under the influence (“DUI”), third offense, one count of aggravated vehicular homicide,
and one count of vehicular homicide. The trial court sentenced the Petitioner to a twenty-one
year effective sentence. The Petitioner filed a petition for habeas corpus relief in which he
alleged that his indictment was fatally defective. The habeas corpus court summarily denied the
petition. On appeal, he contends that the habeas corpus court erred when it summarily dismissed
his petition and failed to appoint him counsel. After a thorough review of the record and
applicable authorities, we reverse the judgment of the trial court, and remand the case for the
appointment of counsel and for a hearing on the issue of the sufficiency of the indictment for
aggravated vehicular homicide.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                       Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which DAVID H. WELLES and
JERRY L. SMITH , JJ., joined.

Melvin L. Cofer, Clifton, Tennessee, for the Appellant, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Lacy Wilber, Assistant Attorney General; Mike Bottoms, District Attorney General; Doug
Dicus, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                           OPINION

                                            I. Facts

        A jury convicted the Petitioner of one count of driving under the influence (“DUI”), third
offense, one count of aggravated vehicular homicide, and one count of vehicular homicide. He
filed a direct appeal, and this Court affirmed the convictions. State v. Melvin Cofer, No. W2002-
01984-CCA0R3-CD, 2003 WL 21729450, at *1 (Tenn. Crim. App., at Jackson, July 25, 2003),
perm. app. denied (Tenn. Nov. 24, 2003). The Petitioner then filed a petition for post-conviction
relief, alleging that he had received the ineffective assistance of counsel at trial. The post-
conviction court dismissed the petition, and this Court affirmed that judgment. Melvin Cofer v.
State, No. W2006-00631-CCA-R3-PC, 2007 WL 2781718, at *1 (Tenn. Crim. App., at Jackson,
Sept. 25, 2007), perm. app. denied (Tenn. Feb. 8, 2008).

       The Petitioner filed a petition for habeas corpus relief in March 2008, arguing that the
indictment against him charged only vehicular homicide and not aggravated vehicular homicide.
He cites to the following from this Court’s opinion on his direct appeal from the denial of his
post-conviction petition:

               It does appear that the indictment in this case, as it appears in the record of
       the direct appeal presently before this court, does not contain a count alleging
       aggravated vehicular homicide. A valid indictment is an essential jurisdictional
       element to the procurement of a valid conviction. Wyatt v. State, 24 S.W.3d 319,
       323 (Tenn. 2000). In the absence of a complete record of what transpired at trial
       we are unable to determine whether the indictment was ever amended either
       explicitly or implicitly before proceeding to the portion of the proceeding wherein
       the conviction for aggravated vehicular homicide occurred. See State v. Yoricki,
       133 S.W.3d 606, 613 (Tenn. 2004). Of course, the petitioner may be entitled to
       relief on this issue in a properly pleaded and filed habeas corpus proceeding
       wherein the question of the sufficiency of the indictment can be fully litigated.
       Id. Such a proceeding should be instituted pursuant to T.C.A. § 29-21-101, et.
       seq., and should be pled in accordance with the provisions of that title and
       chapter, including attachments demonstrating that the petitioner’s conviction is
       void. See Summers v. State, 212 S.W.3d 251, 261 (Tenn. 2007).

Cofer, 2007 WL 2781718, at *12.

       The habeas corpus court dismissed the petition without holding a hearing or appointing
counsel. The habeas corpus court found:

       Specifically, the petitioner has failed to show how the indictment was fatally
       defective so as to deprive the trial court of jurisdiction. The indictment charges
       the petitioner with aggravated vehicular homicide. Even though the indictment
       references the wrong statute, the indictment clearly put the petitioner on notice
       that he would be required to defend against a charge of aggravated vehicular
       homicide.

It is from this judgment that the Petitioner now appeals.

                                           II. Analysis



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        On appeal, the Defendant contends that the habeas corpus court erred when it summarily
dismissed his petition and that he is entitled to habeas corpus relief because his indictment was
fatally defective with respect to the aggravated vehicular homicide conviction. The State
counters that the record “shows that another indictment existed that charged the petitioner with
aggravated vehicular homicide.”

       Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas
corpus relief. See Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007). Although the right is
guaranteed in the Tennessee Constitution, the right is governed by statute. T.C.A. § 29-21-101
(2006) et seq. The determination of whether habeas corpus relief should be granted is a question
of law and is accordingly given de novo review. Smith v. Lewis, 202 S.W.3d 124, 127 (Tenn.
2006); Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). Although there is no statutory limit
preventing a habeas corpus petition, the grounds upon which relief can be granted are very
narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). It is the burden of the petitioner to
demonstrate by a preponderance of the evidence that “the sentence is void or that the
confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). In other words, the
very narrow grounds upon which a habeas corpus petition can be based are as follows: (1) a
claim there was a void judgment which was facially invalid because the convicting court was
without jurisdiction or authority to sentence the defendant; or (2) a claim the defendant’s
sentence has expired. Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000); Archer v. State,
851 S.W.2d 157, 164 (Tenn. 1993). “An illegal sentence, one whose imposition directly
contravenes a statue, is considered void and may be set aside at any time.” May v. Carlton, --
S.W.3d --, 2008 WL 160695, at *3 (Tenn. 2008) (citing State v. Burkhard, 566 S.W.2d 871, 873
(Tenn. 1978)). In contrast, a voidable judgment is “one that is facially valid and requires the
introduction of proof beyond the face of the record or judgment to establish its invalidity.”
Taylor, 995 S.W.2d at 83; see State v. Richie, 20 S.W.3d 624, 633 (Tenn. 2000).

       In the case under submission, the indictment reads as follows:

               THE GRAND JURORS of Hardeman County, Tennessee, duly
       emplaneled and sworn, upon their oath, present that MELVIN L. COFER on or
       about March 12, 2001, in Hardeman County, Tennessee, and before the finding of
       this indictment, did unlawfully drive or was in physical control of a motor vehicle
       on the public roads, streets, alleys and highways while the alcohol concentration
       in the breath or blood of the said Melvin L. Cofer was twenty-hundredths of one
       percent (.20%) or more, in violation of T.C.A. 55-10-401(a)(2), against the peace
       and dignity of the State of Tennessee.

       COUNT TWO

              And the Grand Jurors on their oath aforesaid further present that in
       Hardeman county on or about March 12, 2001, before the finding of this
       indictment, the said MELVIN L. COFER did unlawfully drive a motor vehicle
       under the influence having been previously convicted of driving under the
       influence on 6-25-87 in the General Sessions Court of Hardeman County . . . and

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       on 12-8-94 in the General Sessions Court of Hardeman County . . . in violation of
       T.C.A. 55-10-403, against the peace and dignity of the State of Tennessee.

       COUNT THREE

               And the Grand Jurors on their oath aforesaid further present that in
       Hardeman County on or about March 12, 2001, before the finding of this
       indictment, the said MELVIN L. COFER did unlawfully, feloniously and
       recklessly kill Jeffery Taylor by the operation of an automobile, the killing of
       Jeffery Taylor being the proximate result of Melvin L. Cofer’s intoxication as
       operator of said automobile, in violation of T.C.A. 39-13-213, against he peace
       and dignity of the State of Tennessee.

       COUNT FOUR

               And the Grand Jurors on their oath aforesaid further present that in
       Hardeman County on or about March 12, 2001, before the finding of this
       indictment, the said MELVIN L. COFER did unlawfully, feloniously and
       recklessly cause serious bodily injury to Candice Jane Main by the operation of a
       motor vehicle, in violation of T.C.A. 39-13-106, against the peace and dignity of
       the State of Tennessee.

        Attached to the Petitioner’s petition for habeas corpus relief is an excerpt of the trial
proceedings. That transcript reflects that, after the jury returned a verdict convicting the
Petitioner of vehicular homicide, the trial court informed the jury:

       Another count of the indictment charges the Defendant with aggravated vehicular
       homicide, and that indictment alleges on that occasion that [the Petitioner] was
       convicted of . . . two prior driving under the influences of intoxicants, and alleges
       that as a result of that now, that he is now guilty of aggravated vehicular homicide
       allegedly.

               So, at this time, . . . .we will begin the proceeding of this trial to determine
       the Defendant’s guilt or innocence or whether the State can prove his guilt
       beyond a reasonable doubt of the offense of aggravated vehicular homicide. At
       this time the State will read to you the second count of the indictment.

        After reading Count 2 of the indictment, which is outlined above, the State introduced
certified copies of the Defendant’s two previous convictions for DUI. The parties then presented
their arguments to the jury. During the defense attorney’s closing argument, she stated:

       Ladies and Gentlemen of the Jury, I know it’s hard, because I think you thought
       after you rendered your verdict you’d be able to go home, and then to have a
       surprise brought upon you that you’re going to have to stay and still do something
       further, what the Judge told you when you first came back in is true, that now that

                                                 -4-
       [the Petitioner] has been found guilty of vehicular homicide, the State is reading
       another indictment and another charge against [the Petitioner] for a greater . . .
       punishment, which would be the aggravated vehicular homicide.

After presenting some argument, she asked the jury to find the Petitioner “not guilty as to the
increased offense of aggravated vehicular homicide . . . .” The trial court instructed the jury:

       Ladies and Gentlemen of the Jury, you have now found the Defendant guilty
       beyond a reasonable doubt as to vehicular homicide as a result of intoxication as
       charged in Count 1 of the indictment. It’s now your duty to determine whether
       the Defendant is guilty of aggravated vehicular homicide as charged in Count 2 of
       the indictment.

        We disagree with the State’s contention on appeal that the record included with the
Petitioner’s petition “shows that another indictment existed that charged the petitioner with
aggravated vehicular homicide.” In fact, the record clearly indicates that all the parties
considered that Count 2 of the indictment alleged aggravated vehicular homicide. However, the
language of that count of the indictment and the statute that it cites allege DUI, third offense, a
crime for which the Petitioner was convicted. Although the parties agreed that Count 2 of the
indictment alleged aggravated vehicular homicide, there is no indictment for that charge: Count
1 alleges DUI; Count 2 alleges DUI, third offense; Count 3 alleges vehicular homicide; and
Count 4 alleges vehicular assault.

        We also disagree with the habeas corpus court’s finding that the indictment sufficiently
charged the Petitioner with aggravated vehicular homicide because the language of the
indictment charged that offense even though it referenced the wrong statute. Count 2 of the
indictment, which appears to be the count to which the habeas corpus court is referring, alleges
DUI, third offense, and references the DUI statute. The State relied on Count 2 when it sought
an aggravated vehicular homicide conviction. Although we agree with the habeas corpus court
that the Petitioner was on notice that he would be required to defend a charge of aggravated
vehicular homicide, a valid indictment is an essential jurisdictional element to the procurement
of a valid conviction. See Wyatt v. State, 24 S.W.3d 319, 323 (Tenn. 2000).

         The issue before the Court then is whether the indictment was amended either explicitly
or implicitly before the portion of the proceeding wherein the conviction for aggravated
vehicular homicide occurred. In the absence of transcripts of all relevant portions of the record,
we are unable to ascertain wither the aggravated vehicular homicide conviction can stand or
whether the Petitioner is entitled to habeas corpus relief. See State v. Yorick, 133 S.W.3d 606,
613 (Tenn. 2004); Cofer, 2007 WL 2781718, at *12. We are constrained to remand this case to
the trial court for the Petitioner to be appointed counsel and for a hearing wherein the question of
the sufficiency of the indictment can be fully litigated.

                                         III. Conclusion



                                                -5-
        Based on the foregoing reasoning and authorities, we remand this case to the habeas
corpus court for the Petitioner to be appointed counsel and for a hearing where the question of
the sufficiency of the indictment can be fully litigated.


                                                         ______________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




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