        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs February 5, 2013

                 VINCENT LANIER v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                   No. 02-06050    Carolyn Wade Blackett, Judge


                 No. W2012-00260-CCA-R3-HC - Filed April 18, 2013


The Petitioner, Vincent Lanier, appeals the Shelby County Criminal Court’s denial of his
petition for writ of habeas corpus. The Petitioner was indicted for rape but entered a guilty
plea to statutory rape. On appeal, the Petitioner argues that his judgment is void because (1)
he entered a guilty plea to statutory rape, which is not a lesser included offense of the
charged offense of rape, and his indictment was never amended from rape to statutory rape,
and (2) trial counsel and the trial court failed to advise him that he would have to comply
with the registration requirements of Tennessee’s sexual offender registration act because of
his guilty plea to statutory rape. See T.C.A. § 39-13-506(d)(2)(B) (stating that “[i]n addition
to the punishment provided for a person who commits statutory rape for the first time, the
trial judge may order, after taking into account the facts and circumstances surrounding the
offense, including the offense for which the person was originally charged and whether the
conviction was the result of a plea bargain agreement, that the person be required to register
as a sexual offender pursuant to title 40, chapter 39, part 2”). Upon review, we affirm the
habeas corpus court’s summary dismissal of the petition.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and A LAN E. G LENN, JJ., joined.

Zipporah C. Williams, Memphis, Tennessee, for the Petitioner-Appellant, Vincent Lanier.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Susanna M. Shea, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                         OPINION
       Background. A Shelby County Grand Jury indicted the Petitioner for one count of
rape. At the February 11, 2003 plea submission hearing, the State informed the court that the
Petitioner, with the court’s approval, was entering a guilty plea to the offense of statutory
rape in exchange for a sentence of six years of confinement with a release eligibility of sixty
percent The State summarized the facts supporting the entry of the Petitioner’s guilty plea:

       [O]n October 1st of the year 2000[,] the victim, [N.R.,] who . . . on October 1st
       was age 15, was at her uncle’s home, the home of Mr. Vincent Lanier. On
       that–at that location the victim was asleep in one of the bedrooms at which
       time that the suspect Lanier came into the room, removed her clothing, and
       placed his penis in her vagina.

               The Petitioner, through counsel, stipulated to the aforementioned facts
       During the plea colloquy, the Petitioner acknowledged that although he was
       charged with rape, a Class B felony, which carried a sentence range of eight
       to thirty years, he was entering a guilty plea to statutory rape, a Class E felony,
       in exchange for a sentence of six years as a career criminal with a release
       eligibility of sixty percent. The transcript from the plea submission hearing
       shows that the trial court erroneously believed that statutory rape was a lesser
       included offense of rape at the time the Petitioner entered his plea. The
       Petitioner asserted that he was waiving all the rights associated with a trial by
       jury and stated that he had signed a petition for waiver of a trial by jury and
       request of the court to accept his guilty plea to statutory rape. The court
       formally accepted the Petitioner’s guilty plea. Neither the transcript from the
       plea submission hearing nor the judgment of conviction contains any
       information about requiring the Petitioner to comply with the Tennessee sexual
       offender registry act because of his guilty plea to statutory rape. See id.

       Following entry of his guilty plea to statutory rape in 2003, the Petitioner filed an
unsuccessful petition for writ of habeas corpus. See Vincent Lanier v. State, No. W2005-
00783-CCA-R3-HC (Tenn. Crim. App. Nov. 22, 2005) (order dismissing the appeal for
Petitioner’s failure to file a brief).

       On June 21, 2011, the Petitioner filed the instant petition for writ of habeas corpus in
the Shelby County Criminal Court. In it, he alleged that his guilty plea to statutory rape was
unconstitutional because statutory rape is not a lesser included offense of rape. He also
alleged that he was restrained of his liberty by the requirement that he comply with the sexual
offender registration act because of his guilty plea. Following the appointment of counsel,
the Petitioner filed an amended petition, attaching copies of his indictment, plea submission
hearing transcript, and judgment. In the amended petition, he alleged that he was entitled to
habeas corpus relief because his indictment, which charged him with rape, was not amended

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prior to him entering his guilty plea to statutory rape and because trial counsel and the trial
court failed to inform him that he would have to comply with the sexual offender registry act
because of his conviction. On January 13, 2012, the habeas corpus court summarily
dismissed the petition, holding that the Petitioner’s judgment was not void because (1) the
trial court had jurisdiction to render the judgment and the judgment of conviction showed
that the Petitioner entered a guilty plea to the amended charge of statutory rape and (2) the
Petitioner’s claim that trial counsel provided ineffective assistance in failing to inform him
that he would be required to comply with the sexual offender registration act because of his
guilty plea was not a cognizable claim for habeas corpus relief. The Petitioner filed a timely
notice of appeal.

                                        ANALYSIS

       “The determination of whether habeas corpus relief should be granted is a question
of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21
S.W.3d 901, 903 (Tenn. 2000)). Accordingly, our review is de novo without a presumption
of correctness. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing State v.
Livingston, 197 S.W.3d 710, 712 (Tenn. 2006)).

        A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15
of the Tennessee Constitution. Tenn. Const. art. I, § 15; see T.C.A. §§ 29-21-101 to -130.
The grounds upon which a writ of habeas corpus may be issued, however, are very narrow.
Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). “Habeas corpus relief is available in
Tennessee only when ‘it appears upon the face of the judgment or the record of the
proceedings upon which the judgment is rendered’ that a convicting court was without
jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of
imprisonment or other restraint has expired.” Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 337 (1868)). “[T]he purpose of
a habeas corpus petition is to contest void and not merely voidable judgments.” Potts v.
State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsom v. Henderson, 424
S.W.2d 186, 189 (Tenn. 1968)). A void judgment “is one in which the judgment is facially
invalid because the court lacked jurisdiction or authority to render the judgment or because
the defendant’s sentence has expired.” Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton,
978 S.W.2d 528, 529 (Tenn. 1998); Archer, 851 S.W.2d at 161-64). However, as the
Tennessee Supreme Court stated in Hickman v. State:

       [A] voidable judgment is facially valid and requires the introduction of proof
       beyond the face of the record or judgment to establish its invalidity. Thus, in
       all cases where a petitioner must introduce proof beyond the record to establish
       the invalidity of his conviction, then that conviction by definition is merely


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       voidable, and a Tennessee Court cannot issue the writ of habeas corpus under
       such circumstances.

153 S.W.3d 16, 24 (Tenn. 2004) (internal citations, quotations, and emphasis omitted); see
Summers, 212 S.W.3d at 256 (citation omitted). Moreover, it is the petitioner’s burden to
demonstrate, by a preponderance of the evidence, that the judgment is void or that the
confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

        If the habeas corpus court determines from the petitioner’s filings that no cognizable
claim has been stated and that the petitioner is not entitled to relief, the petition for writ of
habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20. Further, the
habeas corpus court may summarily dismiss the petition 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 are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994), superseded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-
00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998). “The
petitioner bears the burden of providing an adequate record for summary review of the
habeas corpus petition, including consideration of whether counsel should be appointed.”
Summers, 212 S.W.3d at 261.

        I. Lesser Charge Not Included in Indictment. On appeal, the Petitioner argues that
the trial court was without jurisdiction to sentence him because he entered a guilty plea to
statutory rape, which is not a lesser included offense of the charged offense of rape, and his
indictment was never amended from rape to statutory rape. See State v. Stokes, 24 S.W.3d
303, 306 (Tenn. 2000) (concluding that statutory rape is not a lesser included offense of
rape). The State erroneously concedes that the Petitioner’s judgment is void because the
judgment omitted the community supervision for life provision. We note that the offense of
statutory rape is not one of the enumerated offenses that requires a sentence of community
supervision for life and that the Petitioner makes no claim regarding a community
supervision for life provision. See T.C.A. § 39-13-524(a) (2003). The State also argues that
the habeas corpus court properly determined that the Petitioner was not entitled to habeas
corpus relief because the Petitioner failed to show that he is currently restrained of liberty or
that the illegal portion of his sentence was material to his negotiated guilty plea. Finally, the
State argues that the Petitioner’s decision to plead guilty to an offense not charged in the
indictment constitutes the Petitioner’s consent to the amendment of the indictment. See State
v. Yoreck, 133 S.W.3d 606, 612-13 (Tenn. 2004). We conclude that the Petitioner is not
entitled to habeas corpus relief because he consented to the amendment of his indictment
when he signed his petition for waiver of trial by jury and request of the court to accept his
guilty plea and subsequently entered his guilty plea to statutory rape.




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        “A valid indictment is an essential jurisdictional element, without which there can be
no prosecution.” Dykes, 978 S.W.2d at 529 (citing State v. Hill, 954 S.W.2d 725, 727 (Tenn.
1997); Stokes, 954 S.W.2d at 730). Tennessee Rule of Criminal Procedure 7(b) (2003) states
that an indictment may be amended in all cases with the defendant’s consent. We also
recognize that “[f]or 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) (citing Studdard v. State, 182 S.W.3d 283,
286-88 (Tenn. 2005)).

        In Yoreck, 133 S.W.3d at 612, the Tennessee Supreme Court held that the defendants
were given proper notice of the aggravated assault charge of which they were convicted, even
though aggravated assault is not a lesser included offense of the charged offense of rape,
when they signed a waiver of trial by jury and request to enter plea of guilty and each
judgment listed the amended charge. The court further held that the indictments were not
void and the judgments were “at most voidable” because the trial court had subject matter
jurisdiction over the cases, because the indictments were orally amended during the plea
submission hearings, and because the judgments indicated that the indictments had been
amended by agreement. Id.

        In Studdard v. State, 182 S.W.3d 283, 287 (Tenn. 2005), the court concluded that the
defendant’s conviction was not jurisdictionally defective when the indictment properly vested
the trial court with subject matter jurisdiction and the judgment, which listed the charged
offense as rape of a child and did not include an amended charge of incest, listed the
conviction offense as incest. The court held that “in the context of a guilty plea proceeding,
the listing of the conviction for incest on the form which the defendant signed is sufficient
to put the defendant on notice of the charge with which he was convicted.” Id. The court
concluded that the conviction was “not jurisdictionally defective” and “was, at most,
voidable[.]” Id.

        However, in State v. Stokes, 24 S.W.3d 303 (Tenn. 2000), the Tennessee Supreme
Court was faced with an entirely different factual scenario than that in the aforementioned
cases. In Stokes, the defendant was indicted for rape but was convicted of statutory rape.
Id. at 304. The trial court suggested a jury instruction on the offense of statutory rape
because it erroneously believed that statutory rape was a lesser included offense of rape, and
the parties passively agreed to the instruction. Id. at 306. Neither party requested that the
indictment be amended, and the court never entered an amendment. Id. Based on these
facts, the Tennessee Supreme Court concluded that “a defendant’s acquiescence to a jury
instruction based on an incorrect belief that an offense is a lesser included offense is simply
insufficient to transform an erroneous jury instruction into a valid amendment of an
indictment by that defendant’s consent.” Id. The court then specified the procedure for
amending an indictment:

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       While Rule 7(b) provides that “[a]n indictment . . . may be amended in all
       cases with the consent of the defendant,” the rule does not specify the
       procedure by which the amendment should be made. To clarify this matter, we
       conclude that an indictment may be amended pursuant to Rule 7(b) where an
       oral or written motion to amend the indictment is made and where the
       defendant’s oral or written consent to the motion is clear from the record.
       Because no motion to amend the indictment was made in the present case, and
       consent by Stokes to such an amendment does not appear in the record, we
       hold that the indictment was not amended. Accordingly, Stokes was convicted
       of a crime for which he was not charged.

Id. at 306-07.

         The factual scenario in the Petitioner’s case is nearly identical to the one in Yoreck.
Here, the grand jury indicted the Petitioner for the offense of rape, and the Petitioner entered
a guilty plea to statutory rape. The judgment of conviction shows that although the
indictment charged the Petitioner with rape, the amended charge and the conviction offense
were listed as statutory rape. On appeal, the Petitioner alleges that his judgment is void
because the trial court was without jurisdiction to sentence him because statutory rape is not
a lesser included offense of rape and because his indictment was not properly amended to
charge him with statutory rape. The record shows that the indictment charging the Petitioner
with rape properly vested subject matter jurisdiction with the trial court. In addition, the
transcript from the plea submission hearing shows that the Petitioner had signed a waiver of
a trial by jury and request for entry of plea of guilty and understood that he was entering his
guilty plea to statutory rape rather than rape. Finally, the judgment of conviction reflects that
the charged offense was amended to statutory rape. We conclude that the record shows that
the Petitioner consented to the amendment of his rape charge to statutory rape and that his
judgment of conviction is not void. See Tenn. R. Crim. P. 7(b); Yoreck, 133 S.W.3d at 612;
Studdard, 182 S.W.3d at 287; Stokes, 24 S.W.3d at 306-07. Accordingly, we conclude that
the Petitioner in not entitled to habeas corpus relief on this issue.

        II. Ineffective Assistance of Counsel. The Petitioner also argues that his judgment
is void because trial counsel and the trial court failed to advise him that his sentence for
statutory rape included a requirement that he comply with Tennessee’s sexual offender
registration act. See T.C.A. §§ 40-39-201 to 215 (2012). He asserts that his judgment of
conviction makes no mention of compliance with the sexual offender registry and the
transcript from the plea submission hearing shows that neither trial counsel nor the trial court
informed him that he would be required to comply with this registry. The State responds that
the habeas corpus court properly determined that this was not a proper ground for habeas
corpus relief. We agree that the Petitioner is not entitled to habeas corpus relief on this issue

                                               -6-
because the requirement that he comply with the sexual offender registration act is a
collateral consequence of his judgment of conviction.

        In Ward v. State, 315 S.W.3d 461, 472 (Tenn. 2010), the Tennessee Supreme Court
held that “the registration requirements imposed by the sex offender registration act are
nonpunitive and . . . are therefore a collateral consequence of a guilty plea.” The court added
that because the registration requirement “does not have an effect on the length, manner, or
service of the defendant’s punishment[,]” a trial court’s failure to advise a defendant of the
sexual offender registration requirement does not render the defendant’s guilty plea
“constitutionally invalid.” Id.; see Martin Lewis Privette v. State, No. 2011-02640-CCA-R3-
PC, 2012 WL 6172037, at *9 (Tenn. Crim. App. Dec. 11, 2012) (reiterating that “[a]ny
failure by the court or counsel to explain fully the sexual offender registry to the Petitioner
does not render his guilty plea invalid”). Consequently, the trial court’s failure to inform the
Petitioner of the registration requirements was merely a collateral consequence to his guilty
plea to statutory rape and did not render his guilty plea void. Moreover, even if we construe
this claim as an ineffective assistance of counsel claim, the Petitioner would not be entitled
to relief because such claims are not cognizable claims for habeas corpus relief. See
Passarella, 891 S.W.2d at 627 (concluding that “[w]hen a prisoner contends that he was
denied the constitutional right to the effective assistance of counsel, the judgment is voidable,
not void, unless the face of the record establishes that the trial court did not have jurisdiction
of his person, the criminal offense of which he stands convicted, or the authority to make the
judgment attacked”); Robert M. Winters v. Cherry Lindamood, Warden, No. M2007-02699-
CCA-R3-HC, 2009 WL 774479, at *3 (Tenn. Crim. App. March 25, 2009) (stating that “a
claim of ineffective assistance of counsel, at best, renders a challenged judgment voidable
rather than void; therefore, such an allegation is not a cognizable claim for habeas corpus
relief”). Furthermore, we cannot construe the petition as one for post-conviction relief
because the statute of limitations has long expired. See T.C.A. § 40-30-102(a) (2012).
Accordingly, the Petitioner is not entitled to habeas corpus relief on this issue.

        Upon review of the record and applicable law, this court concludes that the Petitioner
is not entitled to habeas corpus relief and that the habeas court’s summary dismissal of the
petition was proper. The judgment of the habeas corpus court is affirmed.

                                       CONCLUSION

          Upon review, we affirm the summary dismissal of the petition for habeas corpus
relief.


                                             ______________________________
                                             CAMILLE R. McMULLEN, JUDGE

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