         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                    Assigned on Briefs June 17, 2003

              JOE CLARK MITCHELL v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Wayne County
                       No. 12823 Robert L. Jones, Judge



                  No. M2002-03011-CCA-R3-CO - Filed September 30, 2003


Petitioner filed a petition for writ of habeas corpus alleging that the indictments against him were
fatally defective and that this Court’s reduction of one of his convictions for aggravated rape to rape
violated the constitutional prohibition against double jeopardy. The trial court dismissed the petition
without an evidentiary hearing. Following a review of the record in this matter, we affirm the order
of the trial court’s dismissing the petition for writ of habeas corpus.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ROBERT W. WEDEMEYER , JJ., joined.

Joe Clark Mitchell, Clifton, Tennessee, pro se, for the petitioner, Joe Clark Mitchell.

Paul G. Summers, Attorney General and Reporter; Christine Lapps, Assistant Attorney General; and
T. Michael Bottoms, District Attorney General; for the appellee, State of Tennessee.

                                              Opinion

        In 1986, Petitioner was convicted of two counts of aggravated assault, two counts of armed
robbery, two counts of aggravated kidnapping, one count of arson, one count of first degree burglary
and two counts of aggravated rape. All of Petitioner’s convictions arose out of one criminal spree
in which he terrorized two women for a number of hours. State v. Joe Clark Mitchell, No. 87-152-
III, 1988 WL 32362, *1 (Tenn. Crim. App., Nashville, April 7, 1988), perm. to appeal denied (Tenn.
1988). The trial judged ordered Petitioner’s four life sentences for both counts of aggravated
kidnapping and both counts of aggravated rape to run consecutively and all other sentences to run
concurrently with the four life sentences.




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        On appeal, this Court summarized the facts leading up to Petitioner’s convictions as follows:

        One of the victims testified that as she was leaving her friend’s house, a man started
        towards her across the lawn. He hit her several times with a large stick, and he was
        armed with a gun and a hunting knife. He forced both women into the house, and
        used duct tape to tape their ankles, arms, mouths, and eyes. He stole their jewelry
        and ransacked the house. He used a knife to cut the clothes off the testifying witness
        and raped her. Then he set fire to the house. He carried both women to a car, drove
        around for several hours, stopping at one point to rape the witness one more time.
        He eventually abandoned the car and the women, and they were able to free
        themselves and walk for help.

Mitchell, 1988 WL 32362, at *1.

        Following our review, this Court affirmed the trial court’s judgments as to all counts except
for Petitioner’s conviction for aggravated rape under count two of indictment No. M2322. Id. We
concluded that the evidence was insufficient to show that the second rape in the victim’s car was
accomplished with the use of either Petitioner’s gun or his hunting knife. Id. However, the evidence
was sufficient to sustain Petitioner’s conviction for simple rape as a lesser included offense of
aggravated rape. Id. Accordingly, this Court reduced Petitioner’s conviction for count two of
indictment No. M2322 to rape and sentenced Petitioner as a Range II multiple offender to thirteen
years imprisonment. Id.. We ordered Petitioner’s sentence for rape to be served consecutive to
Petitioner’s remaining three life sentences. Id.

        In his petition for writ of habeas corpus, Petitioner first alleged that his indictments for the
offenses of armed robbery, aggravated kidnapping and aggravated rape were fatally defective in that
each indictment failed to set forth the material elements of the underlying offense. Specifically,
Petitioner argues that each indictment alleged that a deadly weapon, “to wit: a knife”, was used to
accomplish the crimes when the proof at trial showed that Petitioner used a handgun, or pistol,
during the commission of the offenses. Because of this variance, Petitioner contends that he was
unable to prepare a defense against the charged offenses.

        Petitioner also asserted in his petition that this Court’s reduction of the second rape offense
from aggravated rape to simple rape violated the constitutional prohibition against double jeopardy.
Petitioner argues that by convicting Petitioner of the greater charge, the jury acquitted him of all
lesser-included offenses of aggravated rape. Petitioner submits that when this Court found him
innocent of aggravated rape on appeal, we lacked jurisdiction to reduce his sentence to simple rape.

        In its response to Petitioner’s petition, the State argued that Petitioner had failed to show that
the indictments were facially void. Although the indictments listed only the use of a knife during
the commission of the offenses, the proof at trial clearly showed that Petitioner was armed with both
a knife and a gun. Because Petitioner had not stated a claim for which relief could be granted, the
State moved the trial court to dismiss the petition. Following its review, the trial court granted the


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State’s motion and dismissed Petitioner’s petition for writ of habeas corpus.

        We note at the outset that the grounds upon which a writ of habeas corpus may be issued are
very narrow. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). A writ of habeas corpus is available
only when it appears from the face of the judgment or record that either the convicting court was
without jurisdiction to convict or sentence the petitioner, or the petitioner’s sentence has expired.
Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000); see also Tenn. Code Ann. § 39-21-101. 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.

       The determination of whether to grant habeas corpus relief is a question of law. Id. at 92.
Accordingly, this Court reviews the trial court’s findings de novo without a presumption of
correctness. Id.; Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). The petitioner has the burden of
showing that the judgment is void by a preponderance of the evidence. Wyatt, 24 S.W.3d at 322.

         Because a valid indictment is an essential jurisdictional element of a prosecution, “an
indictment that is so defective as to fail to vest jurisdiction in the trial court may be challenged at any
stage of the proceedings, including in a habeas corpus petition. Wyatt, 24 S.W.3d at 323 (citations
omitted). Petitioner relies on the supreme court’s holding in State v. Ladd, 32 Tenn. (2 Swan) 226
(1852) to support his argument that a designation of a specific weapon in the indictment renders the
indictment fatally defective if the proof at trial shows that an entirely different type of weapon was
used to commit the crime. A better illustration of Petitioner’s argument, perhaps, may be found in
State v. Brooks, 462 S.W.2d 491 (Tenn. 1970). The indictment at issue in Brooks referenced the use
of a pistol during the robbery, but the evidence at trial showed that the defendant actually used a .22
caliber rifle. In determining that this variance rendered the indictment defective, the court espoused
the common law rule requiring strict conformity between each allegation in the indictment and the
proof at trial. Id. at 494.

        Since that time, however, “the old common law rule has been relaxed . . . so that substance
rather than form is now determinative of such questions.” State v. Moss, 662 S.W.2d 590, 592
(Tenn. 1984). Before a variance between the indictment and the proof will be considered fatal, such
variance must be both material and prejudicial. Id. An indictment will generally be valid “if it
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)
(citations omitted).

       The form of the indictment is also governed by statute. As in effect at the time of Petitioner’s
offenses, “[t]he indictment must 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 . . . .” Tenn. Code Ann. § 40-13-302 (1982 Supp.).


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        The indictments against Petitioner tracked the statutory language of the offenses of armed
robbery, aggravated kidnapping and aggravated robbery in effect at the time of the crimes. See Tenn.
Code Ann. §§ 39-2-501(a); –301(a)(2)(D); and -603(a)(1) (Supp. 1982). It was sufficient to state
the offense charged in the words of the statute or the equivalent of the statutory words. State v. Tate,
912 S.W.2d 785, 789 (Tenn. Crim. App. 1995). Although the indictments alleged that Petitioner
committed each of the offenses with a knife, one of the victims testified at trial that Petitioner
approached her carrying a big stick in his right hand, a gun in his left hand, and a knife encased in
a holster on his side. Petitioner does not deny that he carried a hunting knife. Instead, he argues that
the gun was the primary weapon used to intimidate the victims and accomplish the offenses. We
find Petitioner’s arguments to be without merit.

        We conclude that the indictments provided adequate notice to Petitioner that he was being
charged with armed robbery, aggravated kidnapping and aggravated rape. Furthermore, contrary to
his allegation that he was unable to prepare a defense, Petitioner successfully defended himself
against one count of aggravated rape when the State’s evidence proved insufficient to sustain a
finding that either the gun or the knife was used during the second rape in the victim’s car. Any
alleged variance between the wording of the indictment and the proof at trial was not fatal.
Petitioner is not entitled to relief on this issue.

        As for Petitioner’s claim that this Court’s reduction of his sentence for aggravated rape to
simple rape violated the constitutional prohibition against double jeopardy, such claim, if true, would
render Petitioner’s conviction for rape voidable rather than void. Ralph Phillip Claypole, Jr. v.
State, No. M1999-02591-CCA-R3-PC, 2001 WL 523367, at *2 (Tenn. Crim. App., Nashville, May
16, 2001); William A. Ransom v. State, NO. 01C01-9410-CR-00361, 1995 WL 555064, at *3 (Tenn.
Crim. App., Nashville, Sept. 20, 1995), perm. to appeal denied (Tenn. Feb. 5, 1996). A judgment
which is merely voidable rather than void is subject to attack only through the post-conviction
process, not through the habeas corpus procedures. Taylor, 995 S.W.2d at 83.


                                           CONCLUSION

        Based upon our review, we affirm the trial court’s dismissal of Petitioner’s petition for
writ of habeas corpus.



                                                _____________________________________
                                                JERRY L. SMITH, JUDGE




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