         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 20, 2005

                 JOEY LEE SMITH v. KEVIN MYERS, WARDEN

                   Direct Appeal from the Circuit Court for Wayne County
                            No. 13698     Stella Hargrove, Judge



                   No. M2005-01732-CCA-R3-HC - Filed January 18, 2006



The petitioner, Joey Lee Smith, appeals from the circuit court’s summary dismissal of his pro se
petition for writ of habeas corpus. Following our review of the parties’ briefs and applicable law,
we affirm the court’s dismissal of the petition.

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

J.C. MCLIN , J., delivered the opinion of the court, in which DAVID H. WELLES and JOHN EVERETT
WILLIAMS, JJ., joined.

Joey Lee Smith, T.D.O.C.. Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; W.
Michael McCown, District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

       In March 1995, the petitioner was convicted of one count of child rape, six counts of
aggravated sexual battery, one count of sexual battery, and two counts of reckless endangerment.
He received a total effective sentence of nineteen years. His convictions were affirmed on direct
appeal, and he was denied post-conviction relief. See State v. Joey Lee Smith, No.
01C01-9603-CC-00108, 1997 WL 438165 (Tenn. Crim. App., at Nashville, July 31, 1997) perm.
app. denied (Tenn. March 16, 1998); Joey Lee Smith v. State, No. M1999-01896-CCA-R3-PC, 2001
WL 363990 ( Tenn. Crim. App., at Nashville, April 12, 2001). In January 2005, the petitioner filed
a pro se petition for writ of habeas corpus. The circuit court dismissed the petition, finding no
grounds entitling the petitioner to habeas corpus relief.

       In his petition and on appeal, the petitioner alleges that he was indicted for simple rape and
convicted of simple rape; but the trial court improperly modified his judgment to reflect a conviction
for child rape. He essentially argues that his conviction for child rape is void because the trial court
lacked jurisdiction to modify this conviction.

        Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief. Tennessee Code Annotated sections 29-21-101 through 29-21-130 codify the applicable
procedures for seeking a writ. The grounds upon which a writ of habeas corpus may be issued are
very narrow. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). A writ of habeas corpus is available
only when it appears on the face of the judgment or the record of the proceedings upon which the
judgment was rendered that a court was without jurisdiction to convict or sentence the defendant or
that the defendant is still imprisoned despite the expiration of his sentence. Archer v. State, 851
S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). The purpose of a
habeas corpus petition is to contest void and not merely voidable judgments. Archer, 851 S.W.2d
at 163. A void judgment is a facially invalid judgment, clearly showing that a court did not have
statutory authority to render such judgment; whereas, a voidable judgment is facially valid, requiring
proof beyond the face of the record or judgment to establish its invalidity. See Taylor v. State, 995
S.W.2d 78, 83 (Tenn. 1999). The burden is on the petitioner to establish, 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). Moreover, it is permissible for a court to summarily dismiss a petition for
habeas corpus relief, without the appointment of counsel and without an evidentiary hearing, if the
petitioner does not state a cognizable claim. See Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004).

         For an indictment to be challenged 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. The
United States and the Tennessee Constitutions require that an indictment inform the accused of “the
nature and cause of the accusation.” U.S. Const. amend. VI; Tenn. Const. Art. I, § 9. An indictment
satisfies the constitutional requirement of notice “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). Further, the 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).

         Upon review of the record, we conclude that the petitioner is not entitled to habeas corpus
relief. First, the record reflects that the petitioner’s indictment properly charged him with the rape
of a child. The indictment states in pertinent part that “JOEY LEE SMITH . . . did engage in
unlawful sexual penetration of [victim], age 11, and force or coercion was used to accomplish the
act, in violation of Tennessee Code Annotated 39-13-503 [sic] . . . .” Pursuant to Tennessee Code
Annotated section 39-13-522, rape of a child is “the unlawful sexual penetration of a victim by the
defendant or the defendant by a victim, if such victim is less than thirteen (13) years of age.” While
the petitioner’s indictment incorrectly referenced the wrong code provision, the language of the
indictment clearly meets the elements of child rape as set forth in section 39-13-522. As such, the
inclusion of the wrong code provision in the indictment is clearly surplusage. It is well-settled that


                                                   -2-
an indictment is not defective because of the inclusion of surplusage if, after eliminating the
surplusage, the offense is still sufficiently charged. State v. Culp, 891 S.W.2d 232, 236 (Tenn. Crim.
App. 1994); see also State v. Beal, 614 S.W.2d 77, 80 (Tenn. Crim. App. 1981) (determining that
the insertion of wrong code provision did not render the indictment invalid); McCracken v. State,
489 S.W.2d 48, 51 (Tenn. Crim. App. 1972) (stating that the presentment’s erroneous reference to
wrong code section was clerical error and thus mere surplusage). In this case, the indictment clearly
informed the petitioner of the crime for which he was charged. Furthermore, both the jury
instructions and the jury verdict clearly indicate that the jury was instructed and found the petitioner
guilty of child rape. Therefore, the trial court’s correction of the judgment form, which had been
mistakenly recorded as simple rape, was merely the authorized correction of a clerical error. See
Tenn. R. Crim. P. 36 (stating that clerical mistakes in judgments arising from oversight or omission
may be corrected by the court at any time). Clerical errors do not give rise to void judgments. See
McChristian v. State, 159 S.W.3d 608, 610 (Tenn. Crim. App. 2004). Accordingly, the petitioner
failed to state a cognizable claim for habeas corpus relief, and the circuit court did not err in
summarily dismissing his petition. The judgment of the circuit court is affirmed.




                                                        ___________________________________
                                                        J.C. McLIN, JUDGE




                                                  -3-
