         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                        AT NASHVILLE

                    RODNEY SMITH v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Wayne County
                            No. 14123 Stella L. Hargrove, Judge


                  No. M2007-00707-CCA-R3-HC - Filed December 10, 2007


The Appellant, Rodney Smith, appeals the trial court's dismissal of his petition for habeas corpus
relief. The Appellant fails to assert a cognizable claim for which habeas corpus relief may be
granted. Accordingly, the judgment of the trial court is affirmed.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
THOMAS T. WOODALL, JJ. joined.

Rodney Smith, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General, for
the appellee, State of Tennessee.

                                  MEMORANDUM OPINION

        In March 1997, the Appellant was indicted for first degree premeditated murder, first degree
murder in the perpetration of a robbery, first degree murder in the perpetration of a theft, and
especially aggravated robbery. In September and November 1999, respectively, the Appellant pled
guilty to the lesser included offense of facilitation of first degree felony murder and especially
aggravated robbery. The Appellant was sentenced to concurrent terms of twenty years. On or about
January 9, 2007, the Appellant filed a petition for habeas corpus relief alleging that the criminal
indictment against him is defective and void on its face and that, as a result, he is being unlawfully
restrained. Specifically, the Appellant contends the indictment did not set forth the elements of the
underlying felony supporting the felony murder charge. The Appellant also argues that the judgment
form does not properly reflect the offense to which he pled guilty. The trial court dismissed the
petition without a hearing. The Appellant appealed, and the State has filed a motion to affirm
pursuant to Rule 20, Rules of the Court of Criminal Appeals.

         Article I, Section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief, and Tennessee Code Annotated Sections 29-21-101 et seq. codify the applicable procedures
for seeking such a writ. However, the grounds upon which our law provides relief are very narrow.
 McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). Habeas corpus relief is available in this state only
when it appears on the face of the judgment or the record of the proceedings that the trial court was
without jurisdiction to convict or sentence the defendant or that the sentence of imprisonment has
otherwise expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). In other words, habeas
corpus relief may only be sought when the judgment is void, not merely voidable. Taylor v. State,
995 S.W.2d 78, 83(Tenn. 1999). "[W]here the allegations in a petition for writ of habeas corpus do
not demonstrate that the judgment is void, a trial court may correctly dismiss the petition without a
hearing." McLaney, 59 S.W.3d at 93. A petitioner cannot collaterally attack a facially valid
conviction in a habeas corpus proceeding. Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992); State ex
rel. Holbrook v. Bomar, 364 S.W.2d 887, 888 (Tenn. 1963). Unlike a post-conviction petition, the
purpose of a habeas corpus petition is to contest a void, not merely voidable, judgment. State ex rel.
Newsome v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968).

        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). An indictment meets
constitutional requirements if it provides sufficient information: (1) to enable the accused to know
the accusation to which an answer is required, (2) to furnish the court an 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). In addition, an indictment must state the facts of the offense in ordinary and
concise language “in such a manner as to enable a person of common understanding to know what
is intended.” See Tenn. Code Ann. § 40-13-202.

        The Appellant contends that the trial court was without jurisdiction to enter judgment in this
case because the indictment charging felony murder did not allege all of the elements of the
underlying felony. This Court has held that a felony murder indictment must allege the killing was
committed during the perpetration of a felony, but specific allegations of the elements and facts of
the underlying felony are unnecessary. See State v. Alfonzo E. Anderson, No. W2000-00737-CCA-
R3-CD, 2002 WL 1558491 (Tenn. Crim. App., Jan. 9, 2002). The indictment at issue referenced the
statutes defining the offenses. This has been held to satisfy the constitutional and statutory
requirements of Hill. See State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000).

        The Appellant’s claim that the judgment form does not accurately reflect the offense to which
he pled guilty is equally without merit. The Appellant pled guilty to facilitation of felony murder,
and the judgement properly reflects the conviction offense. Facilitation of felony murder is a lesser
included offense of felony murder, the charged offense in this case. See State v. Ely, 48 S.W.3d 710
(Tenn. 2001). The code section cited in the judgment sheet, Tennessee Code Annotated Section 39-
11-117(a)(1), simply explains that “[f]or the purposes of classification of other offenses, first degree
murder is one (1) class above Class A.” “The facilitation of the commission of a felony is an offense
of the class next below the felony facilitated by the person so charged.” Tenn. Code Ann. § 39-11-


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403(b). Accordingly, facilitation of felony murder is a Class A felony. The judgment so reflects.
Appellant is, therefore, not entitled to habeas relief on this claim. As to any non-jurisdictional
challenges raised in the petition, the Appellant waived these claims by not objecting prior to trial,
and by pleading guilty. See Tenn. R. Crim. P. 12(b); Parker v. State, 492 S.W.2d 456, 457 (Tenn.
Crim. App. 1972).

        For the reasons stated above, the Appellant has failed to set forth any allegations indicating
that the trial court lacked jurisdiction to convict or sentence or that he is unlawfully “restrained” for
a sentence that has expired. Accordingly, 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.




                                        ____________________________________
                                        ROBERT W. WEDEMEYER, JUDGE




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