        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs January 29, 2013 at Knoxville

             WADE P. TUCKER v. ARVIL CHAPMAN, WARDEN

                   Appeal from the Circuit Court for Wayne County
                        No. 15192     Robert L. Jones, Judge


               No. M2012-01493-CCA-R3-HC - Filed February 26, 2013


The petitioner, Wade P. Tucker, appeals the summary dismissal of his pro se petition for writ
of habeas corpus, arguing that the court erred in failing to consider his motion for
appointment of counsel and that the indictment was defective so as to deprive the trial court
of subject matter jurisdiction. After review, we affirm the summary dismissal of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J EFFREY S. B IVINS and
R OGER A. P AGE, JJ., joined.

Wade P. Tucker, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Lacy Wilber, Assistant Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

        The petitioner was indicted by the Franklin County Grand Jury on charges of
attempted first-degree murder, especially aggravated robbery, and especially aggravated
burglary arising out of his entering the home of his estranged wife, shooting her multiple
times with a shotgun, and taking, among other things, her wallet and jewelry. State v. Wade
P. Tucker, No. M2001-02298-CCA-R3-CD, 2002 WL 1574998, at *2-3 (Tenn. Crim. App.
July 17, 2002), perm. app. denied (Tenn. Dec. 23, 2002). The petitioner pled guilty to
attempted first-degree murder and received a sentence of twenty-four years in the
Department of Correction, but he proceeded to a bench trial on the remaining charges. Id.
at *1. Following the bench trial, the court convicted the petitioner of especially aggravated
robbery and aggravated burglary, and the petitioner challenged both of those convictions on
direct appeal. Id. After review, this court affirmed the petitioner’s conviction for especially
aggravated robbery, but we reversed and vacated the conviction for aggravated burglary.
Id. at *9.

        On May 7, 2012, the petitioner filed a petition for writ of habeas corpus1 in which he
alleged that his conviction for especially aggravated robbery was void because “the
indictment failed to charge an offense and thus it failed to confer upon the trial court
jurisdiction to enter the judgment.” He claimed that the indictment failed to charge an
offense because the indictment “fail[ed] to include the essential element ‘fear.’” That same
day, the petitioner filed a motion for the appointment of counsel. On June 22, 2012, the
habeas court entered an order dismissing the petition, finding that “the petitioner’s argument
that the indictment was fatally defective so as to have deprived the trial court of jurisdiction
is without merit.” The petitioner appealed.

        On appeal, the petitioner agues that the indictment was defective so as to deprive the
trial court of subject matter jurisdiction and also that the habeas court erred by failing to
consider his motion for appointment of counsel prior to dismissing the petition.

       It is well-established in Tennessee that the remedy provided by a writ of habeas
corpus is limited in scope and may only be invoked where the judgment is void or the
petitioner’s term of imprisonment has expired. Faulkner v. State, 226 S.W.3d 358, 361
(Tenn. 2007); State v. Ritchie, 20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport, 980
S.W.2d 407, 409 (Tenn. Crim. App. 1998). A void, as opposed to a voidable, judgment is
“one that is facially invalid because the court did not have the statutory authority to render
such judgment.” Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citing Dykes v.
Compton, 978 S.W.2d 528, 529 (Tenn. 1998)).

       A petitioner bears the burden of establishing a void judgment or illegal confinement
by a preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).
Whether the petitioner is entitled to habeas corpus relief is a question of law. Id. at 255;
Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). As such, our review is de novo with no
presumption of correctness given to the trial court’s findings and conclusions. Id.

         With regard to the indictment, the petitioner argues that it “did not comply with
constitutional and statutory requirements for indictments” in that it “d[id] not charge an
offense for which [he] may be convicted.” It appears as though the basis for this argument
is that the indictment did not include the statutory language for the offense of robbery, even
though “especially aggravated robbery is robbery as defined in § 39-14-401[.]”


       1
           In the petition, the petitioner states it is his “second application for the writ.”

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       We initially note that 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). However, “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, 978
S.W.2d at 529. “A valid indictment is an essential jurisdictional element, without which
there can be no prosecution.” Id. (citations omitted).

       Tennessee Code Annotated section 40-13-202 requires that an indictment

       state the facts constituting the offense in ordinary and concise language,
       without prolixity or repetition, in such a manner as to enable a person of
       common understanding to know what is intended and with that degree of
       certainty which will enable the court, on conviction, to pronounce the proper
       judgment.

Id. Both the Federal and Tennessee Constitutions guarantee a criminal defendant knowledge
of the “nature and cause of the accusation.” U.S. Const. amend. VI; see also Tenn. Const.
art. I, § 9. An indictment, therefore, must provide notice of the offense charged, adequate
grounds upon which a proper judgment may be entered, and suitable protection against
double jeopardy. Tenn. Code Ann. § 40-13-202; State v. Byrd, 820 S.W.2d 739, 740-41
(Tenn. 1991). Our supreme court has held that reference to the appropriate statute provides
notice to the defendant of the applicable mens rea, notice of the offense upon which to enter
the judgment, and protection from subsequent prosecution on the same offense. See State
v. Carter, 988 S.W.2d 145, 149 (Tenn. 1999).

       Especially aggravated robbery is defined as “robbery as defined in § 39-13-401: (1)
[a]ccomplished with a deadly weapon; and (2) [w]here the victim suffers serious bodily
injury.” Tenn. Code Ann. § 39-13-403(a). Robbery is the “intentional or knowing theft of
property from the person of another by violence or putting the person in fear.” Id. § 39-13-
401(a). “A person commits theft of property if, with intent to deprive the owner of property,
the person knowingly obtains or exercises control over the property without the owner’s
effective consent.” Id. § 39-14-103(a).

       The indictment charging the petitioner with especially aggravated robbery reads:

               That Wade P. Tucker . . . did knowingly obtain or exercise control over
       the property from the person of Debbie Tucker without her consent, and with
       the intent to deprive her of her property; and accomplished this with a deadly
       weapon, to-wit: a gun, and the said Debbie Tucker did suffer serious bodily

                                              -3-
       injury; all in violation of T.C.A. 39-13-403 . . . .

        The petitioner relies on State v. Clark, 2 S.W.3d 233 (Tenn. Crim. App. 1998), in
support of his argument that the indictment failed to charge an offense. In that case, the
indictment, one for attempted aggravated robbery, simply charged that the defendant “did
unlawfully and knowingly attempt to commit the criminal offense of Aggravated Robbery,
in violation of T.C.A. § 39-12-101 and T.C.A. § 39-13-402.” Id. at 234. This court
determined, “Judging the language of count one of the indictment against the statutory
definition of the offense, it is clear that the indictment alleges a legal conclusion – that the
defendant committed attempted aggravated robbery – without alleging the facts and
circumstances which constitute that crime.” Id. at 236. The court concluded that the
indictment, therefore, failed to charge an offense and that “the judgment based thereon is a
nullity and cannot stand.” Id. at 237.

        Clearly, the indictment in this case did not merely recite a legal result or conclusion,
and it contained facts sufficient to provide notice to the petitioner of the applicable mens rea,
notice of the offense upon which to enter the judgment, and protection from subsequent
prosecution on the same offense. Moreover, the indictment also properly referenced the
statute for especially aggravated robbery. Accordingly, the indictment was not fatally
defective, and the petitioner has not carried his burden of proving that the judgment against
him was void.

       In addition, because the indictment was not fatally defective and gave the trial court
jurisdiction to enter judgment against the petitioner, the habeas court did not err in
dismissing the petition without appointing counsel. It is permissible for a court to summarily
dismiss a habeas corpus petition, without the appointment of counsel and without an
evidentiary hearing, if there is nothing on the face of the record or judgment to indicate that
the convictions or sentences addressed therein are void. Summers, 212 S.W.3d at 260;
Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005).

     Based on the foregoing authorities and reasoning, we affirm the habeas court’s
summary dismissal of the petition.


                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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