         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


               MARLON THOMAS v. STEVE DOTSON, WARDEN

                 Direct Appeal from the Circuit Court for Hardeman County
                          No. 06-02-154 Joe H. Walker, III, Judge



                   No. W2006-01157-CCA-R3-HC - Filed December 8, 2006




The Petitioner, Marlon Thomas, appeals the trial court's denial of his petition for habeas corpus
relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any
ground that would render the judgment of conviction void. Accordingly, we grant the State’s motion
and affirm the judgment of the lower court.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the
Court of Criminal Appeals

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN AND J.C.
MCLIN , JJ. joined.

Marlon Thomas, pro se.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General, for
the appellee, the State of Tennessee.



                                   MEMORANDUM OPINION


        In July 2002, the Shelby County Grand Jury returned an indictment charging the Petitioner,
Marlon Thomas, with two alternative counts of aggravated robbery. Petitioner Thomas entered a
guilty plea on December 12, 2003, to one count of aggravated robbery as charged in count 1 of the


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indictment.1 For this offense, Petitioner Thomas received a sentence of fourteen years as a multiple
offender in the Tennessee Department of Correction.

        On May 18, 2006, the Petitioner filed a petition for writ of habeas corpus relief in the
Hardeman County Circuit Court. As grounds for relief, Petitioner alleged “aggravated robbery
indictments, failed to allege an offense, and was thereby void. . . .” Specifically, Petitioner Thomas
argued that the indictment “did not allege the required element of intent, nor did it allege that the
Petitioner placed the victim in fear of her life.” On May 26, 2006, the trial court denied habeas
corpus relief, finding that the “indictment attached includes the required language. The indictment
alleges knowingly.” The trial court further found that the Petitioner’s sentences had not expired and
that the court had jurisdiction to sentence the defendant to the sentence received. Petitioner timely
filed a notice of appeal document on June 2, 2006.

        The grounds upon which habeas corpus relief may be granted in this state are narrow.
Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004). Relief will be granted if the petition establishes
that the challenged judgment is void. Id. A judgment is void “only when ‘[i]t 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.” Hickman, 153 S.W.2d at 20 (quoting State
v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000) (citations omitted)).


        Although in most instances a challenge to the sufficiency of an indictment is not a proper
claim to raise in a habeas corpus proceeding, see Haggard v. State, 475 S.W.2d 186, 187-88 (Tenn.
Crim. App. 1971), "the validity of an indictment and the efficacy of the resulting conviction may be
addressed in a petition for habeas corpus when the indictment is so defective as to deprive the court
of jurisdiction." Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). "A valid indictment is an
essential jurisdictional element, without which there can be no prosecution." Id. (citations omitted).

        The Petitioner contends that the indictment is defectively flawed because the indictment
failed to charge the mens rea of the offense of aggravated robbery. The indictment provided:
Count 1


         The Grand Jurors of the State of Tennessee . . . present that:
                                             MARLON THOMAS
         on August 12, 2002, in Shelby County . . . and before the finding of this indictment,
         did unlawfully, knowingly, and violently, by use of a deadly weapon, to wit:
         Handgun, obtain from the person of PAT TIGRETTE, a purse and its contents, ,


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         The record is absent the disposition of Count 2 of the indictment. The Petitioner maintains that count 2
was dismissed and does not raise a challenge to this count in his habeas corpus petition.

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       proper goods and chattels of PAT TIGRETTE, in violation of T.C.A. 39-13-402,
       against the peace and dignity of the State of Tennessee.

        An indictment or presentment is sufficient if (a) it contains the elements of the offense which
is intended to be charged, (b) it adequately apprises the accused of the offense he is called upon to
defend, (c) the trial judge knows to what offense he must apply the judgment, and (d) the accused
knows with accuracy to what extent he may plead a former acquittal or conviction in a future
prosecution for the same offense. See generally Jackson v. Virginia, 443 U.S. 307, 314, 99 S. Ct.
2781, 2789 (1979). "The fundamental test of the sufficiency of an indictment is the adequacy of the
notice to the defendant conveyed by its terms." Green v. State, 143 S.W.2d 713, 715 (Tenn. 1940);
see also State v. Mayes, 854 S.W.2d 638, 640 (Tenn. 1993). The indictment in this case fulfills its
purpose. It references a specific statutory section and specifies the intent and the means by which
the defendant accomplished the crime. The content of the indictment was sufficient to place the
Petitioner on notice of the nature of the charge, confer jurisdiction upon the trial court, and protect
against double jeopardy. Moreover, contrary to the Petitioner’s argument, aggravated robbery
requires only that the “theft of property from the person of another” is “by violence or putting the
person in fear.” See T.C.A. § 39-13-401(a). Thus, Petitioner is not entitled to habeas relief as to this
claim.


        The Petitioner also contends on appeal to this Court that the “indictments rendered [were]
not presented or handed down by a Grand Jury.” As properly noted by the State, an appellate court
will not consider an issue raised for the first time on appeal. State v. Alvarado, 961 S.W.2d 136, 153
(Tenn. Crim. App. 1996).


        For the reasons stated herein, we conclude that the trial court did not err in dismissing the
petition for habeas corpus relief. Accordingly, it is ordered that the State’s motion is granted. The
judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court of Criminal
Appeals.




                                               ___________________________________
                                               JOHN EVERETT WILLIAMS, JUDGE




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