        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                    Assigned on Briefs June 24, 2014 at Knoxville

               JOSEPH KINDRED v. JERRY LESTER, WARDEN

                 Appeal from the Circuit Court for Lauderdale County
                         No. 6715 Joe H. Walker, III, Judge




                No. W2014-00066-CCA-R3-HC - Filed August 19, 2014


In 2010, the Petitioner, Joseph Kindred, pleaded guilty to multiple counts involving
conspiracy to sell drugs within a school zone, and the trial court sentenced the Petitioner to
sixteen years in the Tennessee Department of Correction. In 2013, the Petitioner filed a
petition for habeas corpus relief, which was summarily dismissed by the habeas corpus court.
On appeal, the Petitioner alleges that the habeas corpus court erred when it dismissed his
petition, contending that the trial court did not have the jurisdiction or authority to sentence
him for the conspiracy convictions because he was not indicted for conspiracy. After a
thorough review of the record and applicable authorities, we affirm the habeas court’s
judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and D. K ELLY T HOMAS, JR., J., joined.

Joseph Kindred, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin E.D. Smith, Assistant Attorney
General; Mike Dunavant, District Attorney General; and Brent A. Cooper, Assistant District
Attorney General for the appellee, State of Tennessee.

                                          OPINION
                                           I. Facts

                                       A. Background
       In 2010, a Maury County Grand Jury indicted the Petitioner for one count of
possession with intent to sell over .5 grams of cocaine within a school zone, one count of
possession with intent to sell marijuana within a school zone, one count of possession of drug
paraphernalia, two counts of sale of a schedule IV drug within a school zone, two counts of
sale of a schedule VI drug within a school zone, two counts of sale of a schedule II drug
within a school zone, and one count of sale of a schedule III drug within a school zone.

        On July 22, 2011, the Petitioner entered guilty pleas to the following: one count of
conspiracy to possess less than .5 grams of cocaine within a school zone, two counts of
possession and sale of a schedule IV drug within 1,000 feet of a school zone, one count of
conspiracy to sell a schedule II drug within 1,000 feet of a school zone, one count of
possession and sale of a schedule III drug within 1,000 feet of a school zone, one count of
possession of marijuana with intent to sell, one count of possession of a schedule II drug with
intent to sell, one count of possession of a schedule III drug with intent to sell, manufacture,
deliver, or possess, and one count of conspiracy to sell a schedule II drug within 1,000 feet
of a school zone. The trial court imposed an effective sixteen-year sentence for the
Petitioner’s convictions.

                                B. Habeas Corpus Petition

        In November 2013, the Petitioner filed a petition for habeas corpus relief. The
Petitioner alleged that the judgments for his conspiracy convictions were void. He contended
that the trial court was without authority to accept his guilty pleas to the conspiracy offenses
because “no indictment” existed for those offenses and because conspiracy is “not a lesser
included offense to the indicted offense.” The Petitioner further contended that the trial
court’s jurisdiction was “never invoked,” because the “so-called affidavit of complaint[] had
not been signed or authorized by a judge, magistrate or a neutral or detached clerk, and
therefore, the subsequent conviction is a nullity.”

         On December 17, 2013, the habeas corpus court issued an order denying relief to the
Petitioner and dismissing his petition. In its order, the habeas court concluded that any defect
in the affidavit of complaint was cured by the indictment and that the indictment “satisfied
the overriding purpose of providing notice to the Petitioner.” The habeas court, noting that
a plea-bargained sentence was “legal so long as it does not exceed the maximum sentence
authorized for the plea offense[,]” further concluded that the trial court had jurisdiction to
sentence the Petitioner. The habeas corpus court dismissed the petition on those grounds and
it is from this judgment that the Petitioner now appeals.

                                         II. Analysis



                                              -2-
        On appeal, the Petitioner contends that the habeas corpus court erred when it
dismissed his petition. He contends that “it was clear on the face of the judgment that the
trial court . . . had no such jurisdiction or authority to sentence [him] for an offense in which
he was not indicted, or which was not a lesser included offense to the indicted charge.” The
State responds that his petition was properly dismissed and that the trial court had the
jurisdiction to sentence him on the conspiracy convictions. Citing Scott v. Osborne, No.
E2011-02021-CCA-R3-HC, 2012 WL 1523824, at *3 (Tenn. Crim. App., at Knoxville, Apr.
30, 2012), perm. app. denied (Tenn. Aug. 17, 2012), the State argues that “trial courts retain
jurisdiction to enter judgment on amended charges, and a petitioner’s agreement to plead
[guilty] to an offense that is not a lesser-included offense of the indictment provides effective
consent to an amendment of the indictment.”

       Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas
corpus relief. See Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007). Although the right
is guaranteed in the Tennessee Constitution, the right is governed by statute. T.C.A. §§ 29-
21-101, -130 (2012). The determination of whether habeas corpus relief should be granted
is a question of law and is accordingly given de novo review with no presumption of
correctness given to the findings and conclusions of the court below. Smith v. Lewis, 202
S.W.3d 124, 127 (Tenn. 2006) (citation omitted); Hart v. State, 21 S.W.3d 901, 903 (Tenn.
2000). Although there is no statute of limitations for a habeas corpus petition, the grounds
upon which relief can be granted are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn.
1999).

        It is the burden of the petitioner to demonstrate by a preponderance of the evidence
that “the sentence is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319,
322 (Tenn. 2000). In other words, the very narrow grounds upon which a habeas corpus
petition can be based are as follows: (1) a claim there was a void judgment which was
facially invalid because the convicting court was without jurisdiction or authority to sentence
the defendant; or (2) a claim the defendant’s sentence has expired. Stephenson v. Carlton,
28 S.W.3d 910, 911 (Tenn. 2000); Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “An
illegal sentence, one whose imposition directly contravenes a statute, is considered void and
may be set aside at any time.” May v. Carlton, 245 S.W.3d 340, 344 (Tenn. 2008) (citing
State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)). In contrast, a voidable judgment or
sentence is “one which is facially valid and requires the introduction of proof beyond the face
of the record or judgment to establish its invalidity.” Taylor, 995 S.W.2d at 83 (citations
omitted); see State v. Ritchie, 20 S.W.3d 624, 633 (Tenn. 2000). The petitioner bears the
burden of showing, by a preponderance of the evidence, that the conviction is void or that
the prison term has expired. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994).



                                               -3-
       It is also permissible for a trial court to summarily dismiss a petition of habeas corpus
without the appointment of a lawyer and without an evidentiary hearing if there is nothing
on the face of the judgment to indicate that the convictions addressed therein are void. See
Passarella, 891 S.W.2d at 627; Rodney Buford v. State, No. M1999-00487-CCA-R3-PC,
2000 WL 1131867, at *2 (Tenn. Crim. App., at Nashville, July 28, 2000), perm. app. denied
(Tenn. Jan. 16, 2001).

       We conclude that the Petitioner’s claim does not entitle him to relief because the trial
court had proper jurisdiction to sentence him on the convictions to which he pleaded guilty.
The Petitioner was initially charged by a proper indictment, thus vesting the trial court with
subject matter jurisdiction to accept the Petitioner’s guilty pleas. See State v. Yoreck, 133
S.W.3d 606, 612 (Tenn. 2004) (citing Wyatt v. State, 24 S.W.3d 319, 323 (Tenn. 2000)). In
the case of a guilty plea entered on a charge not contained in the original indictment, this
Court held in Scott that:

               An indictment may be amended in all cases with the consent of the
       petitioner. Tenn. R. Crim. P. 7(b). For tactical reasons, a person may choose
       to plead guilty to an offense that is not charged in the indictment and is not a
       lesser-included offense of the indicted offense. State v. L.W., 350 S.W.3d 911,
       917 (Tenn. 2011).

Scott, 2012 WL 1523824, at *3. Citing Yoreck, this Court concluded that a defendant’s
guilty plea to an offense that is not a lesser-included offense of the indicted charge is “in
effect, his consent to an amendment to the indictment.” Id. (citing Tenn. R. Crim. P. 7(b)).

       In the present case, the judgments indicate that the Petitioner pled guilty to the
offenses of conspiracy, and, thus, we hold that the Petitioner consented to an amendment of
the original indictment. Id. Accordingly, the trial court retained jurisdiction to enter
judgments on the amended charges and sentence the Petitioner. Accordingly, we conclude
that Petitioner is not entitled to relief on this issue.

                                       III. Conclusion

       After a thorough review of the record and the applicable law, we affirm the habeas
corpus court’s judgment.


                                                     _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE



                                               -4-
-5-
