         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs August 19, 2003

    KENNETH ROBERT DANIELS v. HOWARD CARLTON, WARDEN

                      Appeal from the Circuit Court for Johnson County
                               No. 4133   Lynn Brown, Judge



                                  No. E2003-01063-CCA-R3-PC
                                       December 19, 2003

The petitioner, Kenneth Robert Daniels, appeals as of right the Johnson County Circuit Court’s
dismissal of his petition for habeas corpus relief. In this pro se appeal, the petitioner contends that
he should be granted habeas corpus relief because his judgment of conviction for especially
aggravated robbery is void. The state contends that the trial court properly dismissed the petition
for failure to state a claim. We affirm the trial court’s dismissal of the petition.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN, JJ., joined.

Kenneth Robert Daniels, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General, for
the appellee, State of Tennessee.

                                             OPINION

        On January 15, 1993, the petitioner pled guilty to second degree murder and especially
aggravated robbery, both Class A felonies. The Knox County Criminal Court sentenced the
petitioner to twenty-five years for second degree murder and fifteen years for especially aggravated
robbery to be served consecutively in the Department of Correction. This court affirmed the denial
of the petitioner’s first petition for habeas corpus relief in March 1996 when the petitioner
challenged his conviction for both second degree murder and especially aggravated robbery,
contending that he did not fully understand the agreement when he pled guilty and that his due
process rights were violated. Kenneth Robert Daniels v. State, No. 03C01-9606-CC-00244, Johnson
County (Tenn. Crim. App. Feb. 27, 1997). In January 2003, the petitioner filed a second petition for
habeas corpus relief. The gist of the petitioner’s claim is that his sentence for especially aggravated
robbery is void because the charge of especially aggravated robbery was never presented to the grand
jury and he never consented to the state’s amendment of the indictment to include this charge. The
trial court summarily dismissed the petition.

        The trial court may summarily dismiss a petition for writ of habeas corpus relief when the
petitioner does not state a cognizable claim. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim.
App. 1994). A petition for the writ of habeas corpus may only be brought if the judgment is void
or the sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). However, if the
claimed illegality renders the judgment or sentence voidable, rather than void, no relief can be
granted. Id. at 161. “If the face of the record shows that the court did not have jurisdiction, then the
judgment is void.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). Thus, we examine the
record on its face to determine whether it is void. Here, the petitioner pled guilty to the charges of
felony murder and especially aggravated robbery. The petitioner asserts that he had no knowledge
of the added count of especially aggravated robbery when he pled guilty in 1993 and that he never
consented to an amendment of the indictment. However, the petitioner acknowledges that the
indictment was, in fact, amended. In this respect, the record before us does not reflect that the
judgment, on its face, is void. As the state asserts, taking the petitioner’s allegations as true, the
judgment of conviction at issue would be considered voidable, not void as required for habeas corpus
relief. Therefore, the trial court correctly concluded that the petitioner’s allegations failed to state
a claim for relief.

       Based on the foregoing and the record as a whole, the judgment of the trial court is affirmed.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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