         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


         ARZOLIA CHARLES GOINES v. WARDEN GLEN TURNER

                 Direct Appeal from the Circuit Court for Hardeman County
                            No. 9634 Jon K. Blackwood, Judge



                 No. W2003-02281-CCA-R3-HC - Filed September 22, 2004




The Petitioner, Arzolia Charles Goines, appeals the trial court's denial of his petition for habeas
corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial
of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Because Petitioner has
failed to allege a ground for relief which would render the judgment void, we grant the State's
motion and affirm the judgment of the lower court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
ALAN E. GLENN , JJ. joined.

Arzolia Charles Goines, pro se.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney
General, for the appellee, the State of Tennessee.

                                  MEMORANDUM OPINION


         In 1988, Petitioner was convicted by a Knox County jury of armed robbery, second
degree burglary and grand larceny. See State v. Arzolia Charles Goines, No. 1208, 1989 WL
34856, at * 1 (Tenn. Crim. App. at Knoxville, Apr. 14, 1989), perm. to appeal denied, (Tenn.
Jul. 3, 1989). In the second part of a bifurcated proceeding, the jury found him to be a habitual
criminal. Id. Accordingly, the trial court sentenced him to life imprisonment for the robbery and
burglary convictions and ten years on the count of grand larceny. Id. On August 4, 2003,


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Petitioner filed an application for writ of habeas corpus relief, alleging that the indictments were
insufficient, that the trial court failed to instruct the jury as to lesser offenses, that the Petitioner
was denied his constitutional right to be present during the charging of the jury during the
habitual criminal phrase of trial, and that the trial court improperly used prior convictions that
were not signed by the judge to enhance Petitioner’s sentence as a habitual offender. The trial
court summarily dismissed the petition on August 13, 2003. On August 26, 2003, the Petitioner
filed a motion to reconsider, which was denied on August 29, 2003.

       Habeas corpus relief is available in this state only when it appears on the face of the
judgment or the record 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); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). Unlike the post-
conviction petition, the purpose of the habeas corpus petition is to contest a void, not merely
voidable, judgment. State ex rel. Newsome v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189
(1968). A petitioner cannot collaterally attack a facially valid conviction in a habeas corpus
proceeding. Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992); State ex rel. Holbrook v. Bomar,
211 Tenn. 243, 364 S.W.2d 887, 888 (1963).


        Petitioner alleges that he is entitled to habeas corpus relief because the trial court failed to
instruct the jury as to lesser included offenses and that he was denied his constitutional right to be
present during the charging of the jury. These are not proper claims for habeas corpus relief as it
would merely render the judgments voidable, not void.


        Petitioner also contends that his convictions for armed robbery and burglary are void
because the indictment failed to allege all of the elements of the crimes charged. It is well
established that, in most instances, challenges to the sufficiency of an indictment cannot be tested
in a habeas corpus proceeding. See Haggard v. State, 475 S.W.2d 186, 187-88 (Tenn. Crim.
App. 1971). However, if an indictment fails to state an offense, the subsequent conviction on the
defective indictment is void because no crime is before the court and because the court lacks
jurisdiction. See State v. Nixon, 977 S.W.2d 119 (Tenn. Crim. App. 1997). Therefore, if an
indictment fails to properly charge an offense and causes the convicting court to be without
jurisdiction, that indictment may be challenged in a habeas corpus proceeding. An indictment
must provide sufficient information "(1) to enable the accused to know that 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).


      Count one of the indictment, charging Petitioner with armed robbery, alleged that in
September 1986, Petitioner




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       . . . unlawfully, forcibly and feloniously did make an assault in and upon one, Carl
       Roberts with a certain deadly weapon, to wit: A pistol, . . . and the said defendant
       so assaulting Carl Roberts, the said Arzolio Charles Goines, Alias did then and
       there feloniously and by force and by violence and by putting the said Carl
       Roberts in fear, did rob, steal, take and carry away the goods and chattels of the
       said Carl Roberts, to wit: jewelry, pistol, jewelry box, microwave oven and
       television set, . . .and a quantity of good and lawful money of the United States of
       America. . . from the person and against the will of the said Carl Roberts and with
       the intent to deprive the true owner aforesaid thereof. . . .


We find that the indictment sufficiently apprised the Petitioner of the offense charged and is
valid.


       Count two of the indictment charged that in September 1986, Petitioner
       . . . did commit burglary by breaking and entering a certain house of Carl Roberts,
       in the daytime, the same being a mansion house with the intent . . . to commit
       larceny, that is to say, with the intent to feloniously take, steal and carry away the
       goods and chattels of said owner . . . and so to deprive the true owner aforesaid, of
       the use thereof against his will and consent. . . .
This count similarly provided sufficient notice to the Petitioner that he was charged with
burglary.


        Next, Petitioner claims that he is entitled to habeas corpus relief because the trial court
improperly considered judgments of prior convictions that were not signed by the judge in
enhancing his sentences. Initially, we acknowledge that it has been repeatedly held by Tennessee
courts that failure of the trial judge to sign a judgment does not render the judgment void for
habeas corpus purposes. See James Russell Gann v. David Mills, No.E2003-00281-CCA-R3-PC,
2003 WL 21714064, at * 1 (Tenn. Crim. App. at Knoxville, Jul. 24, 2003); Michael Thomason
v. Kevin Myers, No. M2002-01346-CCA-R3-CO, 2002 WL 31852868, at *2 (Tenn. Crim. App.
at Nashville, Dec. 20, 2002). Moreover, Petitioner has failed to include these judgments as part
of the record in this appeal. In State v. McClintock, 732 S.W.2d 268, 271-72 (Tenn. 1987), our
supreme court stated that “unless invalid on its face, a prior judgment of conviction in a court
with personal and subject matter jurisdiction cannot be collaterally attacked in a subsequent
proceeding in which the challenged conviction is used to enhance punishment.”


        The Petitioner has not established that he is entitled to habeas corpus relief. He has
alleged neither a facially invalid judgment nor an expired sentence. Accordingly, it is
ORDERED that the State’s motion is granted. The judgment of the trial court is affirmed in
accordance with Rule 20, Rules of the Court of Criminal Appeals.


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     ___________________________________
JOHN EVERETT WILLIAMS, JUDGE




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