         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE            FILED
                         FEBRUARY SESS ION, 1999         May 17, 1999

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

JULIUS GOODMAN,                   )   C.C.A. NO. 03C01-9807-CR-00252
                                  )
           Appe llant,            )
                                  )   JOHNSON COUNTY
V.                                )
                                  )
HOWARD CARLTON, WARDEN,           )   HON. LYNN W. BROWN, JUDGE
and STATE OF TENNESSEE,           )
                                  )
           Appellee.              )   (HABEAS CORPUS)



FOR THE APPELLANT:                    FOR THE APPELLEE:

JULIU S GO ODM AN, pro se             JOHN KNOX WALKUP
Northeast Correction Complex #91453   Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683               ELLEN H. POLLACK
                                      Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      JOE C. CR UM LEY, J R.
                                      District Attorney General
                                      114 Alf Taylor Road
                                      Johnson City, TN 37601




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       Julius Goodman, the Petitioner, appeals the dismissal of his petition for

habeas corpus relief. In 1985, the Petitioner pled guilty to aggravated rape and was

sentenced to forty (40) years im prisonm ent in the H aywoo d Cou nty Circuit C ourt.

On February 13, 1998, Petitioner filed a petition for habeas corpus relief, asserting

that the indictment for aggravated rape was invalid as it did not contain th e requisite

mens rea. The trial court dismissed the petition based upon the issue not being

ame nable to habeas corpus relief. On March 25, 1998, the Petitioner filed a motion

to recon sider th e dism issal an d to am end h is petition for habeas corpus relief. In the

amen dmen t, Petitioner stated that the District Attorney failed to sign the indictment

sent to the grand jury and such failure rendered the indictment against him void.

This motion was also denied by the trial court, and Petitioner appeals on the ba sis

of this den ial. We affirm the ju dgme nt of the trial co urt.



       It is a well-established principle of law that the remedy of habe as co rpus is

limited in its nature a nd sco pe. Archer v. State, 851 S.W .2d 157, 161 -62 (Tenn.

1993); Passarella v. State , 891 S.W .2d 619 , 626 (T enn. C rim. App . 1994). In

Tennessee, habe as co rpus re lief is ava ilable o nly if “ ‘it appears upon the face of the

judgment or the record of the proceedings upon which the judgment is rendered’ that

a convic ting court was without jurisdiction or authority to sentence a defendant, or

that a defendant’s sentence of imprisonm ent or other restraint ha s expired.” Archer,

851 S.W .2d at 1 64. Th e petitio ner ha s the b urden of esta blishing either a void

judgment or an illegal confinem ent by a preponderance of the evide nce. Pass arella,

891 S.W.2d at 627 (citation om itted). Moreover, where a judgment is not void, but

is merely voidable, such judgment may not be collaterally attacked in a suit for

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habeas corpus relief. Id. Withou t a valid indictment, there can be no jurisdiction and

no pros ecution. Dykes v. Compton, 978 S.W .2d 528 (Te nn. 1998). “[T]he valid ity

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 d eprive the court

of jurisdic tion.” Id. at 529. Therefore, this case is properly before our court in a

habeas corpus proceeding.



       Petitioner first argu es tha t his con viction is void becau se the ap propriate mens

rea for the offense of aggravated rape was not included in the language of the

indictment. At the time of the offense in April 1985, Tennessee Code Annotated

section 39-2-603 defined aggravated rape as “unlawful sexual penetration of another

accompanied by . . . force or coercion . . . used to accomplish the act and the

defendant is armed with a weapon or any article used o r fashione d in a ma nner to

lead the victim re asona bly to believe it to be a weapon.”           This language was

sufficient un der the law as it existed a t that time.



       This indictment was issued prior to the Criminal Sentencing Reform Act of

1989, and th e Crim inal Code did not contain a provision similar to § 39-11-301(c)

(1989). The only statuto ry requiremen ts for an indictmen t were found in § 40-1802

(now § 40-13-202 (1990)), which provided as follows:

       The indictment mus t state th e facts cons tituting th e offen se in ordinary
       and concise language, without prolixity or repetition, in such a manner
       as to enable a person of common unde rstand ing to k now w hat is
       intended, and with that degree of certainty wh ich will enab le the cou rt,
       on con viction, to pro nounc e the pro per judg ment.

How ever, g enera lly stated an ind ictme nt is valid 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 adequate basis for the entry o f a prope r judgm ent, and (3) to

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protect the accused from double jeopardy.” State v. Hill, 954 S.W.2d 725, 727

(Tenn. 1997). While Hill was prosecuted under the Criminal Sentencing Reform Act

of 1989, its a nalysis is as relevant to crimes committed unde r the 19 79 Ac t as it is

to those co mm itted unde r the 198 9 Act. Dykes v. Compton, 978 S.W.2d at 530.

Just as in Hill, the mental state in the case sub judice is easily inferable from the

condu ct alleged in the indictm ent. Id.



       As the indictment against Petitioner contained the words found in the

language of the statute that he had “unlawful sexual penetration” of the victim

contrary to Tennessee Code Annotated Section 39-2-603, the indictment meets the

requirem ents of sufficiently apprising the Petitioner of the offense charged under the

law at the tim e. Petitione r’s issue is w ithout me rit.



       Petition er’s second argument addresses the alleged failure of the prosecutor

or district attorney to sign the indictment. Petitioner is correct that the District

Attorney is required to sign the indictment some where o n the indic tment. See Steve

Carro ll v. Howa rd Carlton , Warden, No. 03C01-9611-CR-00420, slip op. at 2,

Johnson Coun ty (Ten n. Crim . App., a t Knoxville, January 21, 1998) (No Rule 11

application filed) (citations omitted). However, our review of the indictment indicates

that it was, in fact, signed by the District Attorney Ge neral at the bottom of the third

page of a three-page indictment. The six (6) counts within the indictme nt were

cons ecutive ly numb ered, with counts (1), (2) and (3) on the first page, counts (4) and

(5) on the se cond p age, co ncluding with count (6) on the third page . It is reas onab le

to interpret his signature as intending to cover all six (6) counts contained in the

three-pa ge indictm ent. Id., slip op. at 2. T his issue is also witho ut merit.




                                             -4-
       After finding Petitioner’s issues to be without merit, we affirm the judgment of

the trial cou rt.



                                 ____________________________________
                                 THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
JERRY L. SMITH, Judge


___________________________________
L. T. LAFFERTY, Senior Judge




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