                                                                                        06/08/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                   AT NASHVILLE

    GEORGE WASHINGTON MATTHEWS v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Trousdale County
                                 No. 16-CV-4525


                            No. M2016-01011-CCA-R3-HC


The Appellant, George Washington Matthews, appeals the trial court’s summary dismissal
of his petition for habeas corpus relief. The State has filed a motion asking this Court to
affirm pursuant to Court of Criminal Appeals Rule 20. Said motion is hereby granted.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court
       Affirmed Pursuant to Rule 20, Rules of the Court of Criminal Appeals

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and TIMOTHY L. EASTER, J. joined.

George Washington Matthews, Pro se.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel,
for the appellee, State of Tennessee.

                             MEMORANDUM OPINION

       The Appellant was charged in a three-count indictment with possession with intent
to deliver a controlled substance and attempt to introduce a controlled substance and other
contraband (cell phone) into a penal institution. He was convicted on all three counts. At
issue in this appeal is whether the trial court properly dismissed his habeas corpus
challenge to the sufficiency of two counts of the indictment charging attempt to introduce
the prohibited items into prison. Count Two of the indictment charged, in relevant part:

       [The Appellant] unlawfully and knowingly, with unlawful intent, did attempt
       to take a controlled substance, to-wit: Marijuana, a Schedule VI drug, into
       the Northwest Correctional Complex where prisoners are quartered, in
       violation of [T.C.A.] § 39-16-201.

Count Three charged, in relevant part:
       [The Appellant] unlawfully and knowingly, with unlawful intent, did attempt
       to take contraband, to-wit: cell phones, into the Northwest Correctional
       Complex where prisoners are quartered, in violation of [T.C.A.] §
       39-16-201.

According to his argument, these two counts are insufficient because they do not allege
some overt act committed toward the commission of the offense. The trial court
dismissed the petition without a hearing. The Appellant appealed, and the State has filed a
motion to affirm pursuant to Court of Criminal Appeals Rule 20. For the reasons stated
below, said motion is hereby granted.

        Article I, Section 15 of the Tennessee Constitution guarantees the right to seek
habeas corpus relief, and Tennessee Code Annotated sections 29-21-101 et seq. codify the
applicable procedures for seeking such a writ. The grounds upon which our law provides
relief are very narrow, however. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001).
Habeas corpus relief is available in this state only when it appears on the face of the
judgment or the record of the proceedings that the trial court was without jurisdiction to
convict or sentence the defendant or that the sentence of imprisonment has otherwise
expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). 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.

       “[T]he 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 v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998).
However, so long as the indictment performs its essential constitutional and statutory
purposes, habeas corpus relief is not warranted. Id. An indictment passes constitutional
muster if it provides: (1) notice of the charge against which the accused must defend
himself; (2) an adequate basis for the entry of a proper judgment; and (3) protection of the
accused from double jeopardy. State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). In
addition, an 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, and with that degree of certainty which
will enable the court, on conviction, to pronounce the judgment.” Tenn. Code Ann. §
40-13-202.

      The Appellant is correct to note that an indictment charging attempt “must allege
some overt act committed toward the commission of the offense.” State v. Lewis, 36
S.W.3d 88, 97 (Tenn. Crim. App. 2000). As quoted above, and contrary to the
Appellant’s argument, however, the indictment in this case did allege overt acts toward the
commission of introducing prohibited items into the prison and specifically identified
those items. Accordingly, the trial court correctly ruled that the indictment in this case
was sufficient. See State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000) (“an indictment
need not allege the specific theory or means by which the State intends to prove each
element of an offense to achieve the overriding purpose of notice to the accused”).

       The Appellant also challenges part of the trial court’s instruction to the jury. The
Appellant did not present this issue to the trial court in his habeas corpus petition.
“[I]ssues raised for the first time on appeal are waived.” State v. Alvarado, 961 S.W.2d
136, 153 (Tenn. Crim. App. 1996).

      For these reasons, the order of the trial court is affirmed in accordance with Court of
Criminal Appeals Rule 20.




                                          ____________________________________
                                          ROBERT W. WEDEMEYER, JUDGE




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