                                                                                         05/21/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE


    ADRIAN D. WILKERSON v. MICHAEL PARRIS, WARDEN ET AL.

                Appeal from the Criminal Court for Morgan County
                   No. 2018-CR-17 Jeffery Hill Wicks, Judge
                     ___________________________________

                           No. E2018-01440-CCA-R3-HC
                       ___________________________________


The Appellant, Adrian D. Wilkerson, appeals as of right from the Morgan County
Criminal Court’s judgment summarily denying his petition for a writ of habeas corpus.
The State has filed a motion to dismiss this appeal due to an untimely notice of appeal or,
alternatively, affirm by memorandum opinion the judgment of the habeas corpus court.
Following our review, we conclude that the interest of justice requires a waiver of the
timely filing of the notice of appeal and, therefore, deny the State’s motion to dismiss.
We further conclude, however, that an opinion in this case would have no precedential
value and affirm the judgment of the habeas corpus court pursuant to Rule 20 of the
Rules of the Tennessee Court of Criminal Appeals.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR. and ROBERT H. MONTGOMERY, JR., JJ., joined.

Adrian D. Wilkerson, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; and Clark B. Thornton, Senior
Assistant Attorney General.


                             MEMORANDUM OPINION

       Before the court is the State’s motion to dismiss this appeal based upon the
untimely filing of the notice of appeal or, alternatively, affirm by memorandum opinion
the judgment of the habeas corpus court. The pro se Appellant seeks an appeal as of right
from the habeas corpus court’s summary denial of relief. The habeas corpus court’s
order denying relief was filed on June 20, 2018. The Appellant filed a notice of appeal
with this court on August 8, 2018, forty-nine days after the entry of the habeas corpus
court’s judgment. The Appellant, however, attempted to file a notice of appeal with the
trial court clerk on July 19, 2018. The Appellant has not filed a response to the State’s
motion.

       Tennessee Rule of Appellate Procedure 4(a) provides that “the notice of appeal
required by Rule 3 shall be filed with the clerk of the appellate court within 30 days after
the date of entry of the judgment.” Tenn. R. App. P. 4(a). “[H]owever, in all criminal
cases the ‘notice of appeal’ document is not jurisdictional and the timely filing of such
document may be waived in the interest of justice.” Id. The appellant bears the burden
of establishing when the interest of justice mandates waiver of the timely filing of the
notice of appeal. State v. Kevin Montrell Thompson, E2016-01565-CCA-R3-CD, 2017
WL 262701, at *2 (Tenn. Crim. App. Jan. 20, 2017). That said, the Appellant has not
responded to the State’s motion to dismiss. See State v. Rockwell, 280 S.W.3d 212, 214
(Tenn. Crim. App. 2007) (encouraging litigants to file a motion seeking permission to
waive the timely filing of a notice of appeal or motion to dismiss prior to assignment to
the court for consideration). Although the notice of appeal filed with the appellate court
clerk was untimely, we note that the Appellant’s attempted filing with the trial court clerk
would have been considered timely prior to the expiration of the Rule 4 transitional
period just weeks before the due date of the notice of appeal. Furthermore, the August 8,
2018 filing with the appellate court clerk was only nineteen days late. Under these
circumstances, we conclude that a waiver of the timeliness of the notice of appeal is
warranted. Therefore, the State’s motion to dismiss the appeal is DENIED. We further
conclude, however, that an opinion in this case would have no precedential value and
affirm by memorandum opinion the judgment of the habeas corpus court. See Tenn. Ct.
Crim. App. R. 20.

                                      Factual Background

       The Appellant was convicted by a Davidson County Criminal Court jury of
especially aggravated robbery, theft of property valued over $1,000, and first degree
felony murder. The trial court imposed a total effective sentence of life plus twenty-nine
years. On direct appeal, this court affirmed the Appellant’s convictions but modified the
sentence to a total effective sentence of life plus twenty-five years. State v. Adrian
Wilkerson and Steven Murphy, No. 01C01-9610-CR-00419, 1998 WL 538551 (Tenn.
Crim. App. Aug. 26, 1998) (designated not for citation), perm. app. denied (Tenn. Sept.
18, 2000). The Appellant unsuccessfully pursued post-conviction relief, the denial of
which was affirmed by this court. Adrian Wilkerson v. State, No. M2001-02295-CCA-
R3-PC, 2002 WL 1558521 (Tenn. Crim. App. July 16, 2002), perm. app. denied (Tenn.
Dec. 9, 2002). The Appellant filed a subsequent petition for post-conviction relief, the
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summary denial of which was affirmed by this court. Adrian Wilkerson v. State, No.
M2015-00420-CCA-R3-PC, 2015 WL 5240043 (Tenn. Crim. App. Sept. 8, 2015), perm.
app. denied (Tenn. Dec. 10, 2015). The Appellant filed his first petition for a writ of
habeas corpus, alleging ineffective assistance of counsel and jury instruction error. This
court affirmed by memorandum opinion the habeas corpus court’s order summarily
denying relief. Adrian Wilkerson v. State, M2003-01385-CCA-R3-HC, 2004 WL
2599458 (Tenn. Crim. App. Nov. 12, 2004), perm. app. denied (Tenn. Feb. 25, 2005).
The Appellant filed a second petition for a writ of habeas corpus, alleging once again that
the trial court erroneously instructed the jury on lesser included offenses. This court
affirmed by memorandum opinion the habeas corpus court’s summary denial of relief.
Adrian Wilkerson v. State, No. E2007-00382-CCA-R3-HC, 2008 WL 793784 (Tenn.
Crim. App. Mar. 26, 2008). In his third petition for a writ of habeas corpus, the
Appellant alleged that the trial court failed to properly enter judgments in the especially
aggravated robbery and theft convictions. While noting the judgments of conviction
originally included “transposed” sentences that were properly corrected by the habeas
corpus court pursuant to Tennessee Rule of Criminal Procedure 36, this court affirmed
the habeas corpus court’s summary denial of relief. Adrian Wilkerson v. State, E2007-
02453-CCA-R3-HC, 2008 WL 4949227 (Tenn. Crim. App. Nov. 20, 2008).

       On April 25, 2018, the Appellant filed his fourth petition for a writ of habeas
corpus. This time, the Appellant alleged that the trial court was without jurisdiction to
enter the judgments of conviction based upon a fatally defective indictment. The
Appellant asserted that the indictment was fatally defective because the first degree
felony murder count only alleged robbery as the requisite felony offense, rather than
especially aggravated robbery as charged in a separate count. On June 18, 2018, the State
filed a motion to dismiss the petition. On June 20, 2018, the habeas corpus court
summarily denied relief, ruling that the indictment was sufficient to vest the trial court
with jurisdiction to enter judgment against the Appellant.

                                            Analysis

       The determination of whether to grant habeas corpus relief is a question of law.
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we will review the trial
court’s findings de novo without a presumption of correctness. Id. Moreover, it is the
petitioner’s burden 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).

       Article I, section 15 of the Tennessee Constitution guarantees an accused the right
to seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999).
However, “[s]uch relief is available only when it appears from the face of the judgment
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or the record of the proceedings that a trial court was without jurisdiction to sentence a
defendant or that a defendant’s sentence of imprisonment or other restraint has expired.”
Wyatt, 24 S.W.3d at 322; see also Tenn. Code Ann. § 29-21-101. In other words, habeas
corpus relief may be sought only when the judgment is void, not merely voidable.
Taylor, 995 S.W.2d at 83. “A void judgment ‘is one in which the judgment is facially
invalid because the court lacked jurisdiction or authority to render the judgment or
because the defendant’s sentence has expired.’ We have recognized that a sentence
imposed in direct contravention of a statute, for example, is void and illegal.”
Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (quoting Taylor, 995 S.W.2d at
83).

       Typically, challenges to an indictment are not proper for a habeas corpus action.
Haggard v. State, 475 S.W.2d 186, 187-88 (Tenn. Crim. App. 1971). However, our
supreme court has held that “the validity of an indictment and the efficacy of the resulting
conviction may be addressed in a petition for [a writ of] 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). It is undisputed that a valid indictment is essential to
establish jurisdiction for prosecution. Id. Generally, an indictment is valid if the
information contained therein provides sufficient information “(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) to protect the accused from double
jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). Moreover, our supreme
court has concluded that there is no need to conform to traditionally strict pleading
requirements which are fraught with empty technicalities. Id. at 727-28.

        The Petitioner maintains on appeal that the indictment was fatally defective
because the first degree felony murder charge failed to allege that the murder was
committed in the perpetration of an especially aggravated robbery. As this court has
stated “the felony murder statute generally states the requisite underlying felonies
associated with its application. Necessarily included in the list of requisite felonies is any
other grade of the same felony.” State v. Steven Wayne Wilson, No. M2011-00004-
CCA-R3CD, 2012 WL 3041451, at *16 (Tenn. Crim. App. July 25, 2012), perm. app.
denied (Tenn. Dec. 13, 2012). The indictment in this case automatically encompassed a
murder committed in the perpetration of an especially aggravated robbery, and there is no
requirement that the enhanced class be charged in the indictment. Therefore, “the
indictment sufficiently vested the court with jurisdiction and the resulting judgment of
conviction is valid.” Dykes, 978 S.W.2d at 529. The Appellant’s additional argument
that he was somehow illegally convicted of first degree premediated murder via a
constructive amendment to the indictment is not supported by the record. We conclude
that the habeas corpus court did not err in dismissing the petition.

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                                     Conclusion

      We affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the
Tennessee Court of Criminal Appeals.



                                        _____________________________________
                                        NORMA MCGEE OGLE, JUDGE




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