        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 February 2, 2010 Session

              DANIEL LIVINGSTON v. STATE OF TENNESSEE,
                     STEPHEN DOTSON, WARDEN

             Direct Appeal from the Circuit Court for Hardeman County
                        No. 09-CR-133     Joe Walker, Judge




                No. W2009-01711-CCA-R3-HC - Filed April 26, 2010


In 2002, a jury convicted the petitioner, Daniel Livingston, of evading arrest in a vehicle with
risk of injury, a Class D felony, inter alia. The trial court sentenced him as a career offender
to twelve years in the Tennessee Department of Correction. On July 28, 2009, the petitioner
filed a petition for writ of habeas corpus, alleging that the indictment for evading arrest was
insufficient to vest the trial court with jurisdiction. The circuit court dismissed the petition,
and the petitioner now appeals. Following our review, we affirm the order of the circuit
court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which JERRY L. S MITH and C AMILLE R.
M CM ULLEN, JJ., joined.

Daniel Livingston, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; D. Michael Dunavant, District Attorney General, for the appellee, State of
Tennessee.

                                          OPINION

                                          Background
        In its opinion disposing of the petitioner’s direct appeal, the Tennessee Supreme Court
set forth the factual background of this appeal:

             On September 20, 2001, a citizen observed his stolen vehicle. As he
       followed the vehicle into the Edgehill Homes neighborhood, he called the
        police. Officer Jeremy Harrell was in the vicinity at the time and received the
        information from the dispatcher. Harrell observed the vehicle, waved off the
        owner, and activated his emergency equipment. The vehicle accelerated to
        thirty-five miles per hour. When the driver failed to stop after a block or so,
        Harrell activated his siren. At that point a second patrol officer, Vincent
        Archuleta, joined in the pursuit.

                 Both officers testified that during the course of the chase, the driver
        maintained his speed of thirty-five miles per hour, which was not a safe speed
        in that congested area. He never slowed, made wide turns into oncoming
        traffic lanes, and passed through six stop signs and one red traffic light without
        slowing or stopping. Vehicular and heavy pedestrian traffic were in the area
        during the chase. At one point, “people were just scattering everywhere from
        the streets,” Harrell testified.

                The chase ended after several minutes when the driver turned the
        vehicle into an alley, parked the vehicle at an angle to thwart the pursuing
        vehicles, and fled on foot. The officers chased and ultimately caught the
        fleeing driver. After a struggle during which officers subdued him with pepper
        spray, the driver was arrested. Both officers identified the driver of the fleeing
        vehicle as the [petitioner].

                The [petitioner] was indicted on December 7, 2001, for, among other
        offenses, Class E felony evading arrest.1 On March 14, 2002, the State filed
        a Notice of Enhanced Punishment pursuant to Tennessee Code Annotated
        section 40-35-202, announcing its intent to seek enhanced punishment and
        listing fourteen prior convictions upon which it intended to rely to justify such
        enhanced punishment. Prior to trial, the State filed a superseding indictment
        that elevated the felony evading arrest count to a Class D felony, which
        requires proof of an additional element-risk of death or injury to others.
        Thereafter, during arraignment on the superseding indictment, the trial court
        transferred all the pleadings from the first indictment into the court file on the
        second indictment.

               Following a jury trial, the [petitioner] was convicted of Class D felony
        evading arrest. The trial court sentenced him as a career offender to twelve
        years imprisonment. The [petitioner], while conceding that he had actual
        notice of his prior convictions and the State’s intent to seek enhanced

        1
          The [petitioner] was also indicted for theft over $1000, misdemeanor evading arrest, possession
of drug paraphernalia, and resisting arrest.

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        punishment based on those convictions, nevertheless argued on appeal to the
        Court of Criminal Appeals that the first notice had been legally insufficient
        and that the State’s failure to file a second notice after the superseding
        indictment prevented sentence enhancement beyond the standard Range I
        sentence. The Court of Criminal Appeals agreed and reduced his sentence to
        the maximum sentence for a Range I offender convicted of a Class D felony
        - four years. [The Tennessee Supreme Court] granted the State permission to
        appeal to resolve the issue - whether the Notice of Enhanced Punishment filed
        under the initial indictment sufficiently supported the imposition of an
        enhanced sentence under the superseding indictment.

State v. Livingston, 197 S.W.3d 710, 711-12 (Tenn. 2006). The supreme court ruled that the
petitioner had sufficient notice of the state’s intent to seek enhanced punishment because the
felony evading arrest count in the superseding indictment charged the same crime,2 and the
additional element that elevated the charge from a Class E felony to a Class D felony was not
fatal to the Notice of Enhanced Punishment. Id. at 715-16. The court reinstated the sentence
- twelve years as a career offender - imposed by the trial court. Id. at 716.

       On July 28, 2009, the petitioner filed a petition for writ of habeas corpus, alleging that
the indictment for evading arrest was insufficient to vest the trial court with jurisdiction. The
habeas court dismissed the petition, finding that the indictment met the requirements of
Tennessee Code Annotated section 40-13-202. The petitioner then filed this timely appeal.

                                                  Analysis

        The petitioner contends that the indictment for evading arrest was insufficient to vest
the trial court with jurisdiction because it “omitted the [statutory] subsection number which
would enable the accused to know the accusation to which answer is required.” Specifically,
the petitioner argues that the statute provides for three classifications of evading arrest, each
containing different elements, and without a subsection designation, the indictment is
insufficient to notify the accused of which offense he is being charged.3 The state responds
that the indictment charged a crime sufficient to vest jurisdiction in the trial court, and the




        2
          The court stated that “[b]oth indictments charged evading arrest from the same officer, on the same
date, by the same defendant, under the same statutory code provision.” Livingston, 197 S.W.3d at 715.
        3
           The petitioner, in his reply brief, further claims that the indictment “did not name him . . . as the
perpetrator in the body.” The petitioner does not make any argument nor provide any citation in support of
this allegation. The claim is therefore waived. See Tenn. Ct. Crim. App. R. 10(b). We also note that the
claim was not presented in the petition for writ of habeas corpus.

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indictment gave adequate notice of the charge against which the petitioner must defend. We
agree with the state.

        The determination of whether to grant habeas corpus relief is a question of law. As
such, we will review the habeas corpus court’s findings de novo without a presumption of
correctness. See Edwards v. State, 269 S.W.3d 915, 919 (Tenn. 2008). Moreover, it is the
petitioner’s burden 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).

       Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas
corpus relief. Tennessee Code Annotated section 29-21-101, et. seq., codifies the applicable
procedures for seeking a writ. While there is no statutory time limit in which to file for
habeas corpus relief, Tennessee law provides very narrow grounds upon which such relief
may be granted. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A habeas corpus petition
may be used only to contest void judgments which are facially invalid because (1) the
convicting court was without jurisdiction or authority to sentence a defendant; or (2)
defendant’s sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).

        For a petitioner to challenge an indictment in a habeas corpus proceeding, the
indictment must be so defective that it fails to vest jurisdiction in the convicting court. See
Wyatt, 24 S.W.3d at 323. Our supreme court has held that an indictment meets constitutional
requirements 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). In addition, an indictment must state the facts of the offense
in ordinary and concise language. See Tenn. Code Ann. § 40-13-202. Indictments patterned
after the pertinent language of an applicable statute are ordinarily sufficient for constitutional
and statutory purposes. See State v. Hammonds, 30 S.W.3d 294, 302 (Tenn. 2000).

        Included in the record are what appear to be copies of the indictments. The evading
arrest indictment reads, in pertinent part:

       [the petitioner] on the 20th day of September, 2001, in Davidson County,
       Tennessee and before the finding of this indictment, while operating a motor
       vehicle on any street, road, alley or highway, intentionally did flee from or
       attempt to elude Officer Jeremy Harrell, after [the petitioner] received a signal
       from the officer to bring the vehicle to a stop and the flight or attempt to elude
       created a risk of death or injury to innocent bystanders or other third parties,
       in violation of Tennessee Code Annotated § 39-16-603, and against the peace
       and dignity of the State of Tennessee.


                                               -4-
Tennessee Code Annotated section 39-16-603 states:

       (a)(1) Except as provided in subsection (b), it is unlawful for any person to
       intentionally flee by any means of locomotion from anyone the person knows
       to be a law enforcement officer if the person:

               (A) Knows the officer is attempting to arrest the person; or

               (B) Has been arrested.

       ....

       (3) A violation of subsection (a) is a Class A misdemeanor.

       (b)(1) It is unlawful for any person, while operating a motor vehicle on any
       street, road, alley or highway in this state, to intentionally flee or attempt to
       elude any law enforcement officer, after having received any signal from the
       officer to bring the vehicle to a stop.

       ....

       (3) A violation of subsection (b) is a Class E felony unless the flight or attempt
       to elude creates a risk of death or injury to innocent bystanders or other third
       parties, in which case a violation of subsection (b) is a Class D felony.

       ....

The language of the indictment is clearly patterned after Tennessee Code Annotated §
39-16-603(b)(1) and (3).

        The petitioner’s reliance on State v. Joe David Sloan, No.
W2000-02861-CCA-R3-CD, 2002 WL 1558586, at *3-5 (Tenn. Crim. App., at Jackson, Jan.
4, 2002), for the proposition that the indictment must indicate which subsection of
Tennessee Code Annotated § 39-16-603 is being charged is misplaced. In that case, the
indictment did not allege the additional facts necessary to support a charge of felony evading
arrest because it did not state that the vehicle was on any street, road, alley or highway in this
state or that law enforcement had signaled the driver to stop. The indictment in this matter,
however, states all the facts necessary to satisfy the elements of Class E felony evading
arrest. It is clear from our review of the indictment that it meets both the constitutional and
statutory requirements and is sufficient to vest jurisdiction in the convicting court.
Accordingly, the petitioner failed to state a cognizable claim for habeas corpus relief, and the

                                               -5-
circuit court did not err in dismissing the petition. The judgment of the circuit court is
affirmed.

                                        Conclusion

       Based on the foregoing reasons, we affirm the circuit court’s dismissal of the petition
for writ of habeas corpus.




                                                   ___________________________________
                                                   J.C. McLIN, JUDGE




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