        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs March 22, 2016

                  JAMES THOMAS v. RANDY LEE, WARDEN

             Direct Appeal from the Criminal Court for Johnson County
                     No. CC-15-CR-151 Stacy L. Street, Judge



                 No. E2015-02427-CCA-R3-HC – Filed July 21, 2016



The Petitioner, James Thomas, filed a petition in the Johnson County Criminal Court
seeking habeas corpus relief from his aggravated assault conviction, alleging that his
conviction was void because the affidavit of complaint attached to his arrest warrant was
not signed. The habeas corpus court denied relief without a hearing, and the Petitioner
appeals. Upon review, we affirm the judgment of the habeas corpus court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

James Thomas, Mountain City, Tennessee, Pro se.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; and
Anthony Wade Clark, District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       A jury in the Johnson County Criminal Court convicted the Petitioner of
aggravated assault, a Class C felony. State v. James Craig Thomas, No. E2013-02196-
CCA-R3-CD, 2014 WL 2021952, at *1 (Tenn. Crim. App. at Knoxville, May 15, 2014).
The trial court sentenced the Petitioner as a Range III, persistent offender to twelve years.
Id.
        Thereafter, the Petitioner filed a petition for a writ of habeas corpus, citing State v.
Ferrante, 269 S.W.3d 908 (Tenn. 2008), in support of his contention that the affidavit of
complaint underlying his arrest warrant was not signed by a neutral and detached
magistrate or judge; therefore, the arrest warrant was void ab initio and invalidated all
subsequent proceedings. In response, the State filed a motion to dismiss, maintaining that
the affidavit of complaint was not the charging document because the Johnson County
Grand Jury returned an indictment against the Petitioner. The State contended, therefore,
that the Petitioner was not entitled to habeas corpus relief.

        The habeas corpus court summarily granted the State‟s motion to dismiss, ruling
that the Petitioner‟s “argument that he [was] entitled to habeas corpus relief due to a void
affidavit of complaint [was] without merit” because a grand jury issued a valid
indictment against him on July 8, 2011. On appeal, the Petitioner contends that the
habeas corpus court erred by denying relief without a hearing.

                                         II. Analysis

       Initially, we note that 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
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).

       The Petitioner contends that the habeas corpus court erred by denying his petition
without a hearing. The State contends that the habeas corpus court properly dismissed
the petition without a hearing.

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       The Petitioner‟s reliance on Ferrante is misguided. In Ferrante, an indictment
charging the defendant was never issued. 269 S.W.3d at 909. The only charging
instrument issued prior to the expiration of the statute of limitation was the invalid
affidavit of complaint. Id. at 914-15. In the instant case, the Petitioner was charged with
and convicted of aggravated assault, a Class C felony. Tenn. Code Ann. ' 39-13-
102(a)(1)(A)(iii); (e)(1)(A)(ii). Prosecution for a Class C felony must be commenced
within four years of the offense. Tenn. Code Ann. ' 40-2-101(b)(3). The Petitioner‟s
offenses were committed on May 3, 2011, and a grand jury returned an indictment on
July 8, 2011, well within the statute of limitation.1 Thus, the charging instrument is the
indictment. Eric D. Wallace v. Stephen Dotson, Warden, No. W2006-00908-CCA-R3-
HC, 2007 WL 852173, at *2 (Tenn. Crim. App. at Jackson, Mar. 22, 2007). A valid
indictment confers jurisdiction on a trial court. Hart v. State, 21 S.W.3d 901, 903 (Tenn.
2000). Accordingly, the habeas corpus court did not err by denying relief.


                                        III. Conclusion



       Based upon the foregoing, we affirm the judgment of the habeas corpus court.




                                                      _________________________________

                                                      NORMA MCGEE OGLE, JUDGE




1
 We take judicial notice of the indictment, which was part of the direct appeal record. See State v.
Lawson, 291 S.W.3d 864, 869 (Tenn. 2009).

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