         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 22, 2004

                JOSEPH D. GAINES v. KEVIN MYERS, WARDEN

                       Appeal from the Circuit Court for Wayne County
                           No. 13160     Robert Holloway, Judge



                   No. M2004-00725-CCA-R3-HC - Filed November 4, 2004


The Appellant, Joseph D. Gaines, appeals the Wayne County Circuit Court’s summary dismissal of
his petition for writ of habeas corpus. On appeal, Gaines argues that: (1) his two convictions for rape
of a child are void because the indictment returned against him was not signed by the district attorney
general and the plea agreement was not signed by the trial judge; and (2) his concurrent eighteen-year
sentences are illegal because they are outside the statutory sentencing range. Finding these issues
to be without merit, we affirm the summary dismissal of the petition.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.

Joseph D. Gaines, Pro Se, Clifton, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth T.
Ryan, Assistant Attorney General; Victor S. Johnson III, District Attorney General; for the Appellee,
State of Tennessee.

                                             OPINION

                                        Procedural History

        On July 14, 2002, a Davidson County grand jury indicted the Appellant on four counts of
rape of a child, class A felonies. Included in the multiple count indictment were twelve additional
counts of rape of a child involving three other co-defendants. Under the terms of the plea agreement,
the Appellant pled guilty to two counts of rape of a child and was sentenced to two concurrent
eighteen-year sentences in the Department of Correction. The remaining counts were dismissed.
         On August 21, 2003, the Appellant, while incarcerated at the South Central Correctional
Center in Wayne County, filed the instant petition for habeas corpus relief. On September 11, 2003,
the trial court summarily dismissed the Appellant’s petition for writ of habeas corpus.

                                                Analysis

        In Tennessee, the grounds upon which habeas corpus relief will be granted are narrow.
McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). Habeas corpus relief will only be granted where
the petition shows that the judgment is "void" and not merely "voidable." Id. (citing Taylor v. State,
995 S.W.2d 78, 83 (Tenn. 1999)). The petitioner bears the burden of establishing that the judgment
is "void." Id. (citing Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000); State ex rel. Kuntz v. Bomar,
381 S.W.2d 290, 291-92 (Tenn. 1964)). That burden entails showing that the jurisdictional defect
appears in the record of the original trial, thereby creating a void judgment. Id. at 92-93 (citing State
v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000)). In other words, "the writ will issue only when it
appears upon the face of the judgment or the record of the proceedings upon which the judgment is
rendered that a court lacked jurisdiction or authority to sentence a defendant or that the sentence has
expired." Id. at 93 (citing Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000); Archer v. State,
851 S.W.2d 157, 164 (Tenn. 1993)).

        Where the allegations in a petition for writ of habeas corpus do not demonstrate that the
judgment is void, a trial court may dismiss the petition without a hearing. Id. (citing Tenn. Code
Ann. § 29-21-109 (2000); Archer, 851 S.W.2d at 164); see also Roger L. Hickman v. State, No.
E2002-01916-SC-R11-PC (Tenn., Sept 22, 2004). Appointment of counsel is necessary only in
cases in which the petition for writ of habeas corpus raises a cognizable claim. Charles Damien
Darden v. State, No. W2001-01833-CCA-R3-CD (Tenn. Crim. App. at Jackson, Feb. 12, 2002).

1. Void Convictions

         First, the Appellant asserts that his two convictions for rape of a child are void because the
district attorney general failed to sign the indictment and because the trial court failed to sign the plea
agreement. He argues that these defects deprived the trial court of jurisdiction to enter the
convictions.

         Article 6, section 5 of the Tennessee Constitution requires that the district attorney general
sign the charging document or it will be deemed void. See also Tenn. Code Ann. § 40-13-103
(2003). Included in the record is a copy of the entire indictment, which clearly shows the district
attorney general’s signature following count sixteen. This court has held that there is no requirement
that the signature of the district attorney general follow each count of an indictment; it is sufficient
if the signature follows the final count of the indictment. See James E. Martin v. Howard Carlton,
No. 03C01-9807-CR-00253 (Tenn. Crim. App. at Knoxville, June 7, 1999). Furthermore, "an
objection to a defect of this nature must be made pre-trial, and not in a collateral, post-trial habeas
corpus petition.” Id. This issue is without merit.



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        The Appellant also alleges that his plea agreement is void because the trial court “failed to
sign off on the plea agreement.” This argument is clearly misplaced. The trial court is not a party
to the plea agreement; therefore, its signature on the agreement is not required. The record does,
however, included an Order, signed by the trial court, accepting the Appellant’s pleas of guilty as
provided by the terms of the plea agreement. Accordingly, this issue is without merit.

2. Illegal Sentence

        Last, the Appellant asserts that his two concurrent eighteen-year sentences are illegal because
they are “outside the Statutory Mandates of T.C.A. §§ 40-35-111 and 40-35-112, which requires that
any person convicted of rape of a child, and who is sentenced within the Range I as a standard
offender, that such shall receive a mandatory sentence of twenty-five (25) years.” In sum, the
Appellant argues that his sentences are illegal because he should have received twenty-five-year
sentences rather than the imposed eighteen-year sentences. This argument is ill-founded as neither
our criminal code nor our sentencing laws require that a defendant who is convicted of rape of a
child be mandatorily sentenced to twenty-five years imprisonment.

        The Appellant was convicted of two counts of rape of a child, class A felonies, and sentenced
as a Range I offender. Tennessee Code Annotated section 40-35-112(a)(1) (2003) provides that the
sentencing range for a Range I standard offender for a class A felony is fifteen to twenty-five years.
Clearly, the Appellant’s two eighteen-year sentences for these class A felonies are within the
appropriate range. Accordingly, the sentences imposed are not illegal. Thus, having determined that
the Appellant presented no cognizable claims for relief in his petition for writ of habeas corpus, the
trial court was correct in summarily dismissing the petition without appointment of counsel or a
hearing.

                                          CONCLUSION

        Based upon the foregoing reasons, we affirm the Wayne County Circuit Court’s dismissal
of the Appellant’s petition for writ of habeas corpus.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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