        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs June 23, 2015 at Knoxville

      FRANK SHACKELTON v. DAVID B. WESTBROOK, WARDEN

                   Appeal from the Circuit Court for Davidson County
                    No. 14C-4647    Joseph P. Binkley, Jr., Judge


                  No. M2015-00252-CCA-R3-HC – Filed July 9, 2015


The pro se petitioner, Frank Shackleton, appeals the Davidson County Circuit Court’s
summary dismissal of his petition for writ of habeas corpus, arguing that his conviction
and sentence are illegal and void because he pled guilty to an offense with a different date
from the offense date in the indictment. Because the petitioner has failed to state a
cognizable claim for habeas corpus relief, we affirm the summary dismissal of the
petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR. and TIMOTHY L. EASTER, JJ., joined.

Frank Shackelton, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; and Clark B. Thornton, Senior
Counsel, for the Appellee, State of Tennessee.


                                        OPINION

                                         FACTS

        On June 10, 2008, the Wilson County Grand Jury returned an indictment charging
the petitioner with the rape of a child, with the offense date listed as “the ___ day of
March, 2008.” On October 1, 2009, the petitioner pled guilty to the amended charge of
attempted aggravated sexual battery and was sentenced as a Range II, multiple offender
to ten years in the Department of Correction. The offense date on the judgment form is
listed as March 29, 2007.
        On October 31, 2014, the petitioner filed a petition for writ of habeas corpus in the
Davidson County Circuit Court, alleging that his judgment was void and his sentence
illegal because of the different offense dates in the indictment and judgment. The
petitioner additionally alleged that his sentence was illegal because he lacked the
requisite prior offenses to be classified as a Range II offender.

       On January 8, 2015, the habeas corpus court summarily dismissed the petition,
finding that there was nothing on the face of the indictment or judgment to show that the
conviction was void. This appeal followed.

                                        ANALYSIS

       It is well-established in Tennessee that the remedy provided by a writ of habeas
corpus is limited in scope and may only be invoked where the judgment is void or the
petitioner’s term of imprisonment has expired. Faulkner v. State, 226 S.W.3d 358, 361
(Tenn. 2007); State v. Ritchie, 20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport, 980
S.W.2d 407, 409 (Tenn. Crim. App. 1998). A void, as opposed to a voidable, judgment is
“one that is facially invalid because the court did not have the statutory authority to
render such judgment.” Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citing
Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)).

       A petitioner bears the burden of establishing a void judgment or illegal
confinement by a preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000). Furthermore, when a “habeas corpus petition fails to establish that a
judgment is void, a trial court may dismiss the petition without a hearing.” Summers,
212 S.W.3d at 260 (citing Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005)). Whether
the petitioner is entitled to habeas corpus relief is a question of law. Id. at 255; Hart v.
State, 21 S.W.3d 901, 903 (Tenn. 2000). As such, our review is de novo with no
presumption of correctness given to the habeas court’s findings and conclusions. Id.

        The petitioner argues that his judgment is void and his sentence illegal because of
the discrepancy between the date of the offense in the indictment and in the judgment.
Although defenses based on the validity of an indictment must ordinarily be raised
pretrial, see Tenn. R. Crim. P. 12(b)(2), (f), “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, 978 S.W.2d at
529. Generally, an indictment is valid if it contains information that is sufficient “(1) to
enable the accused to know the accusation to which answer is required, (2) to furnish the
court adequate basis for the entry of a proper judgment, and (3) protect the accused from
double jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997); see also Tenn. Code
Ann. § 40-13-202 (2010).
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       We agree with the State that the discrepancy in offense dates does not render the
indictment invalid.

               The rule of law is well-established in Tennessee that the exact date,
       or even the year, of an offense need not be stated in an indictment or
       presentment unless the date or time is a material ingredient in the offense.
       In fact, in order to establish the legal sufficiency of that charging
       instrument, the state need allege only that the offense was committed prior
       to the finding of the indictment or presentment.

State v. Byrd, 820 S.W.2d 739, 740 (Tenn. 1991) (internal quotations and citations
omitted). The indictment alleged that the offense was committed in March 2008, a date
prior to the return of the indictment. Thus, the trial court had jurisdiction over the case.
Any variance in the date would render the conviction at most voidable, rather than void,
and therefore does not present a cognizable claim for habeas corpus relief.

        As for the petitioner’s complaint that he did not qualify for sentencing as a Range
II offender, it is also well-established that the issues of offender range and release
eligibility are non-jurisdictional and, therefore, subject to plea bargaining. See
McConnell v. State, 12 S.W.3d 795, 798 (Tenn. 2000). As such, the petitioner’s having
pled guilty to a lesser offense in exchange for a sentence outside his ordinary offender
classification does not render his sentence illegal.

                                     CONCLUSION

       Because the petitioner failed to state a cognizable claim for habeas corpus relief,
we affirm the summary dismissal of the petition for writ of habeas corpus.


                                                 _________________________________
                                                 ALAN E. GLENN, JUDGE




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