        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs February 29, 2012

         MILTON LEE COOPER v. HOWARD CARLTON, WARDEN

                  Appeal from the Criminal Court for Johnson County
                          No. 5446    Robert E. Cupp, Judge


                No. E2011-00783-CCA-R3-HC-FILED-APRIL 30, 2012


Petitioner, Milton Lee Cooper, appeals the Johnson County Criminal Court’s summary
dismissal of his petition for writ of habeas corpus. In this appeal, petitioner claims
entitlement to habeas corpus relief because of alleged jurisdictional defects in the indictment.
He also contends that the trial court constructively amended the indictment by its jury
instructions. Discerning no error, we affirm the judgment of the habeas corpus court.

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

R OGER A. P AGE, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL, J.,
joined. J ERRY L. S MITH, J., not participating.

Milton Lee Cooper, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Sophia S. Lee, Senior Counsel,
for the appellee, State of Tennessee.


                                          OPINION

                                    I. Procedural History

        A Hamilton County jury convicted petitioner of felony murder and conspiracy to
commit aggravated robbery. The trial court sentenced petitioner to life imprisonment for the
murder conviction and eight years for the conspiracy conviction. This court affirmed the
convictions and sentences on direct appeal, and the supreme court denied permission to
appeal. State v. Milton Lee Cooper, No. 03C01-9706-CR-00202, 1998 WL 573409 (Tenn.
Crim. App. Sept. 9, 1998), perm. app. denied (Tenn. March 8, 1999). Subsequently,
petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel
at trial and on appeal. This court affirmed the denial of post-conviction relief, and our
supreme court again declined review. Milton Lee Cooper v. State, No. E2001-01527-
CCA-R3-PC, 2002 WL 31548093 (Tenn. Crim. App. Nov. 18, 2002), perm. app. denied
(Tenn. March 17, 2003).

        On April 30, 2009, petitioner filed a petition for writ of habeas corpus in the Criminal
Court for Johnson County. Respondent, the warden, filed a motion to dismiss, which the
habeas corpus court granted on December 20, 2010. Petitioner, however, did not receive a
copy of the order until February 10, 2011, whereupon petitioner filed a Motion for Relief
from Judgment pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. As a
result, the habeas corpus court vacated its December 20, 2010 order and re-entered the order
dated March 24, 2011. Petitioner then filed a timely notice of appeal.

        In support of his petition for habeas corpus relief, petitioner alleges that the indictment
by which the State charged and ultimately convicted him is faulty in several ways. He
contends that the indictment does not include the element of a culpable mental state; that the
trial court constructively amended the indictment through its instruction to the jury regarding
requisite intent as an element of the offense; and that a conviction for felony murder based
upon the predicate felony of especially aggravated robbery is not legally possible. Finding
no basis for habeas corpus relief, we affirm the judgment of the habeas corpus court.

                                          II. Analysis

        The State claims that petitioner waived his right to appellate review by failing to
prepare an adequate record on appeal. See Tenn. R. App. P. 24. As grounds, the State argues
that the petition for habeas corpus relief filed by petitioner was insufficient because it did not
have a complete copy of the judgment attached to it. See Tenn. Code Ann. § 29-21-107(b)(2)
(2000). The State contends that the failure to attach a complete copy of the judgment was
an adequate basis upon which the habeas corpus court could have summarily dismissed the
petition. However, petitioner alleges defects in the indictment, not the judgment. Petitioner
is not claiming that he has been restrained of liberty by virtue of a defective judgment. See
id.

       The habeas corpus court properly considered the substance of the petition over the
form and summarily dismissed the petition on the basis that petitioner failed to raise
cognizable claims for habeas corpus relief and because the judgment was facially valid.
Under the circumstances, we have concluded that we should review the decisions reached
by the habeas corpus court and its rationale in reaching those decisions. See, e.g., Michael
Lee McKinney v. State, No. E2011–00681–CCA–R3HC, 2011 WL 5560572, at *3-4 (Tenn.



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Crim. App. Nov. 14, 2011)1 (noting that when the habeas corpus court addressed procedural
defects in the petition and also the merits of the petition, this court will also conduct a merits
review). Thus, we will conduct a full review of the habeas corpus proceedings below.

       The trial court’s decision with respect to a petition for writ of habeas corpus is a
question of law that we review de novo without a presumption of correctness. Hart v. State,
21 S.W.3d 901, 903 (Tenn. 2000). Habeas corpus relief is available to a petitioner only in
the limited circumstances when the judgment is void on its face or the petitioner’s sentence
has expired. Id. “A void judgment is one in which the judgment is facially invalid because
the court did not have the statutory authority to render such judgment.” Id. (quoting Dykes
v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)). Conversely, a voidable conviction or
sentence appears facially valid and requires the introduction of proof beyond the face of the
record or judgment to determine its deficiency. Taylor v. State, 995 S.W.2d 78, 83 (Tenn.
1999) (citing Dykes, 978 S.W.2d at 529). The proper method for attacking a voidable
judgment is by a petition for post-conviction relief, not habeas corpus. Id. (citing State v.
McClintock, 732 S.W.2d 268, 272 (Tenn. 1987)).

        In habeas corpus proceedings, a petitioner must establish a void judgment or illegal
confinement by a preponderance of the evidence. Passarella v. State, 891 S.W.2d 619, 627
(Tenn. Crim. App. 1994). A habeas corpus court may summarily dismiss a habeas corpus
petition, without the appointment of counsel and without an evidentiary hearing, if the face
of the record or judgment fails to indicate that the convictions or sentences are void. Tenn.
Code Ann. § 29–21–109 (2000); Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005).

       In this appeal, petitioner challenges the validity of the indictment. Petitioner
maintains that the indictment is facially deficient and void because it did not specify a
culpable mental state. A valid indictment is an “essential jurisdictional element” to any
prosecution. Clearly, a defective indictment may deprive a trial court of jurisdiction. Hart,
21 S.W.3d at 903 (citing Dykes, 978 S.W.2d at 529). While challenges to the sufficiency of
an indictment are not properly cognizable in habeas corpus proceedings, an indictment may
be challenged through a petition for habeas corpus when the indictment is so defective as to
deprive the trial court of jurisdiction to enter a judgment. Haggard v. State, 475 S.W.2d 186,
187-88 (Tenn. Crim. App. 1971); Dykes, 978 S.W.2d at 529. Our review of whether the
indictment is void on its face is determinative of this case.


        1
          In Michael Lee McKinney, this court embarked upon a merits review, but ultimately held that the
sparsity of the appellate record precluded said review. In the instant case, a portion of the judgment is
missing because of the manner in which it was copied. However, petitioner does not seek relief based on
a defect in the judgment. Rather, he complains of defects in the indictment. The record contains an
incomplete copy of the indictment, which Petitioner replaced with an accurate copy by way of a pleading
entitled “Notice of Introduction of Evidence.”

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       The indictment charging petitioner with felony murder cited Tennessee Code
Annotated section 39-13-202, the appropriate statute in the criminal code. Tenn. Code Ann.
§ 39-13-202 (1991). Petitioner was indicted in 1995 while the 1991 replacement volume of
the Tennessee Code Annotated was the governing law. The statute in place at the relevant
time included a culpable mental state of “reckless” killing of another. Id. The indictment
charging petitioner with felony murder tracked the language of the statute.

       Petitioner’s argument hinges on his contention that the indictment charging him with
felony murder did not contain “intentional” as a culpable mental state. The indictment
clearly indicated the required element of “reckless.” While the 1991 felony murder statute
included the culpable mental state of “reckless,” the current felony murder statute does not
include an element of a culpable mental state within the statute. The failure to include the
culpable mental state of “intentional” in the indictment did not render it void. The indictment
would have been valid under The Sentencing Reform Act of 1989 even if it had no culpable
mental state included.

        The Sentencing Reform Act of 1989 provides that a culpable mental state is required
for conviction of an offense unless the statutory definition of the offense “plainly dispenses
with a mental element.” State v. Hill, 954 S.W.2d 725, 728 (Tenn. 1997) (quoting Tenn.
Code Ann. § 39–11–301(b) (1991)). When a statute omits reference to a specific mens rea,
but does not plainly dispense with the requirement of a culpable mental state, proof of
“intent,” “knowledge,” or “recklessness” will implicitly establish a culpable mental state. Id.
(citing Tenn. Code Ann. § 39–11–301(c) (1991)). The current felony murder statute does not
expressly require a culpable mental state, yet neither does it clearly dispense with the
requirement. See Tenn. Code Ann. § 39-13-202 (2010). This court has addressed the issue
of the intent requirement for conviction of this offense. The court stated, “There is no
culpable mental state required for felony murder, other than the intent to commit the
underlying felony.” State v. Charles Rice, No. W2002-00471-CCA-R3-DD, 2004 WL
1553563, at *33 (Tenn. Crim. App. July 9, 2004), aff’d 184 S.W.3d 646 (Tenn. 2006) (citing
Tenn. Code Ann. § 39–13–202(b)). Since petitioner was indicted for felony murder
committed during the commission of especially aggravated robbery, the requisite intent can
be gleaned from the robbery statute.2 That statute defines robbery as: “[t]he intentional or
knowing theft of property from the person of another by violence or putting the person in
fear.” Tenn. Code Ann. § 39-13-401(a) (1991) (emphasis added). Thus, the State must have
established that petitioner intentionally or knowingly committed or attempted to commit
especially aggravated robbery. Because the indictment set forth the specific underlying


        2
           The elements of especially aggravated robbery, as defined in § 39-13-403, incorporate all elements
of § 39-13-401 (robbery), with the additional requirements of use of a deadly weapon and serious bodily
injury. However, for purposes of discussing the requisite intent, this court has referenced the robbery statute,
as it contains the pertinent language regarding the culpable mental state.

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felony supporting the felony murder charge, the requisite mental state was easily obtainable
by reviewing the robbery statute, providing adequate notice to petitioner of the charge against
him.

       Our conclusion is consistent with the rationale in Hill. In deciding the same issue in
a case involving aggravated rape, a criminal offense which, like felony murder, lacked
specific statutory designation of a culpable mental state, the supreme court said:

       Since a plain reading of Tenn. Code Ann. §§ 39–11–301(b) and (c) leads us
       to conclude that the Legislature intended that a culpable mens rea be an
       element of the offense of aggravated rape, the question here is whether failure
       to allege such mens rea in an indictment charging that offense constitutes a
       fatal defect rendering the indictment void. We hold that for offenses which
       neither expressly require nor plainly dispense with the requirement for a
       culpable mental state, an indictment which fails to allege such mental state will
       be sufficient to support prosecution and conviction for that offense so long as
       the language of the indictment is sufficient to [:]

              (1)    meet the constitutional requirements of notice to the
                     accused of the charge against which the accused must
                     defend[;] [provide] adequate basis for entry of a proper
                     judgment[;] and protect [the accused] from double
                     jeopardy;

              (2)    the form of the indictment meets the requirements of
                     Tenn. Code Ann. § 40–13–202; and

              (3)    the mental state can be logically inferred from the
                     conduct alleged.

Hill, 954 S.W.2d at 726–27. The “touchstone” for constitutionality of the indictment hinges
upon adequate notice to the accused. Id. at 727.

       With notice as the constitutional “touchstone,” petitioner had ample notice of the
offenses with which he was charged and the elements that the State had to prove to convict
him. Petitioner would have had either actual or constructive notice that the State must have
proven the culpable mental state of “intentionally” or “knowingly” for the underlying felony.
Petitioner also had means by which to discover that absent a clear legislative intent to
dispense with the requirement of a culpable mental state, the requisite mental state of either
“intent,” “knowledge,” or “recklessness” would be implied. See Tenn. Code Ann.
§ 39–11–301(c) (1991). “‘Intentional’ is the highest, most demanding mental state and

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encompasses both ‘knowing’ and ‘reckless.’” Charles Rice, 2004 WL 1553563, at *33
(citing Tenn. Code Ann. § 39–11–301(a)(2)). Finally, following the rationale of the Hill
court, the petitioner could logically infer the required mental state from the conduct alleged.
Hill, 954 S.W.2d at 726–27.

        The indictment referenced the statute defining felony murder and described the
offense, which provided notice to petitioner of the charged offense. Thus, the indictment was
sufficient to confer jurisdiction on the trial court to enter a valid judgment. See State v.
Sledge, 15 S.W.3d 93, 94 (Tenn. 2000). The indictment provided petitioner with con-
stitutional protection against double jeopardy in that, together with identifying the charged
offense, the indictment identified the date of the offense. See Wyatt v. State, 24 S.W.3d 319,
323 (Tenn. 2000). Petitioner’s indictment was sufficient to provide petitioner with all
required constitutional protections as well as to establish jurisdiction for the court to enter
a valid judgment against petitioner. Dykes, 978 S.W.2d at 529. We hold that the indictment
charging petitioner with the offense of felony murder passes constitutional muster, meets
Tennessee’s statutory requirements of notice, is correct in form, and is, therefore, valid.

        Petitioner also argues that the deficiency in the indictment was further compounded
by the trial court’s “constructive amendment” to the indictment via the jury instructions. He
asserts that the trial court erred, and effectively amended the indictment, by charging the jury
that “the killing was committed in the perpetration of or the attempt to perpetrate the crime
of especially aggravated robbery” when the indictment only charged that he “did unlawfully
and recklessly kill [victim] during the perpetration of especially aggravated robbery.”
(emphasis added). Petitioner also finds error with the trial court’s instruction that he
“intended to commit” said crime, in light of his argument, supra, concerning the omission
of a specific culpable mental state in the indictment. (emphasis added).

       The alleged defect in the jury instructions, even if true, would render petitioner’s
conviction voidable, not void. Danny Ray Lacy v. Cherry Lindamood, No. M2009-00072-
CCA-R3-CO, 2009 WL 3029619, at *2 (Tenn. Crim. App. Sept. 22, 2009) (citing Rain
Thomas Chesher v. Stephen Dotson, Warden, No. W2008-00739-CCA- R3-HC, 2008 WL
3892017, at *2 (Tenn. Crim. App. Aug. 22, 2008), perm. app. denied (Tenn. Jan. 20, 2009));
see also Ronald Eugene Gilmore v. Kenneth Locke, Warden, No. M2005-01235-
CCA-R3-HC, 2006 WL 1097493, at *4 (Tenn. Crim. App. Mar. 30, 2006) (holding that
“‘[e]rroneous jury instructions meet none of the . . . requirements for habeas corpus relief.
The only method of collaterally attacking the judgment because of constitutional deprivations
occasioned by erroneous jury instructions is by petition for post-conviction relief;’”) (quoting
Willie Edward Thornton v. Fred Raney, Warden, No. 02C01-9302-CC-00025, 1994 WL
25827, at *1 (Tenn. Crim. App. Jan. 26, 1994)); John Haws Burrell v. Howard Carlton,
Warden, No. E2004- 01700-CCA-R3-HC, 2005 WL 544732, at *2 (Tenn. Crim. App. Mar.
8, 2005) (concluding that, taking as true petitioner’s argument that trial court’s jury

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instructions were erroneous, error “would merely render the convictions voidable, not void”);
Vance McCaslin v. State, No. 01C01-9611-CC-00480, 1998 WL 44919, at *1 (Tenn. Crim.
App. Feb. 5, 1998) (emphasizing that erroneous jury instructions do not entitle petitioner to
habeas corpus relief). Thus, adhering to our long standing precedent, petitioner’s allegations
regarding erroneous jury instructions would render his conviction merely voidable, not void,
and as such, provide no grounds for habeas corpus relief. The habeas corpus court properly
denied relief as to this issue.

       As a final issue, petitioner argues that a conviction for felony murder with the intent
to commit especially aggravated robbery is not legally cognizable, thus implying that
especially aggravated robbery is not a predicate felony for conviction of felony murder. We
agree with the State that this issue is merely a rehash of petitioner’s challenge to the
sufficiency of the indictment.

        Petitioner contends that the alleged conflict between the statutorily-defined culpable
mental states required for the offenses of felony murder and especially aggravated robbery
renders conviction improper under the theory of felony murder. Defenses and objections
based on defects in the indictment must be raised prior to trial. Tenn. R. Crim. P. 12(b)(2).
Notwithstanding, we have concluded in our previous review of the indictment that the
indictment in petitioner’s case is valid. Next, to the extent that petitioner’s assignment of
error involves a variance in the intent elements as set forth in the indictment and as instructed
at trial, resolution of this issue is encompassed by our holding, supra, regarding the
unavailability for habeas corpus review of jury instructions. Petitioner is not entitled to
habeas corpus relief on this claim of error.

                                        III. Conclusion

       After a thorough review of the record and the applicable law, we discern no error in
the court’s summary dismissal of the petition for writ of habeas corpus. Therefore, we
affirm the judgment of the habeas corpus court.

                                                     _________________________________
                                                     ROGER A. PAGE, JUDGE




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