        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs September 24, 2013

            VERLIN RALPH DURHAM V. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Johnson County
                         No. 6231 Robert E. Cupp, Judge


              No. E2013-01175-CCA-R3-HC - Filed November 20, 2013


The petitioner, Verlin Ralph Durham, appeals the dismissal of his petition for the writ of
habeas corpus. The petitioner is currently serving a life sentence in the Department of
Correction following his first degree murder conviction. On appeal, he contends that the
dismissal of the petition was error because the indictment in his case was facially void and
that his conviction is illegal because he was convicted pursuant to a prior repealed statute.
Following review of the record, we affirm the dismissal of the petition.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and R OBERT W. W EDEMEYER, JJ., joined.

Verlin Ralph Durham, Mountain City, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Tony Clark, District Attorney General; and David Crockett, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                        OPINION


                                   Procedural History




       In October 1996, the petitioner was convicted of fatally shooting his wife at a United
gas station and convenience store where she was employed. State v. Verlin Ralph Durham,
No. 03C01-9802-CR-00063, 1999 Tenn. Crim. App. LEXIS 750, *2 (Tenn. Crim. App., at
Knoxville, Jul. 26, 1999). Following his conviction for first degree murder, he was
sentenced to life imprisonment. Id. at *1. The petitioner appealed, raising multiple issues
before this court. His conviction and sentence were affirmed, and the Tennessee Supreme
Court denied permission to appeal. Id.

       In March 2013, the petitioner filed the instant pro se petition for the writ of habeas
corpus based upon his allegation that the indictment charging him was facially invalid. After
reviewing the petition, the State’s motion to dismiss, and the petitioner’s response, the habeas
corpus court concluded that the indictment was jurisdictionally valid and summarily
dismissed the petition. The petitioner has timely appealed that dismissal.

                                           Analysis

        On appeal, the petitioner argues that the indictment charging him with first degree
murder is facially void and that his resulting judgment of conviction is illegal because he was
indicted pursuant to the law in effect prior to the 1995 amendment to the first degree murder
statute, which omitted the element of deliberation. The petitioner contends that the
indictment was so defective that the trial court was without jurisdiction to enter the judgment.
A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15 of the
Tennessee Constitution. T.C.A. § 29-21-101, et seq, (2010). However, the grounds upon
which a writ of habeas corpus may be issued 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). “[T]he purpose of a habeas corpus
petition is to contest void and not merely voidable judgments.” Id. at 163 (internal quotations
omitted). 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. In contrast,

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

Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citations and quotations

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omitted); see also Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007). 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. 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 the
convictions are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

       The indictment in this case reads that the petitioner on or about:

              the 1st day of October, 1996, in Washington County, Tennessee, and
       before the finding of this indictment, did unlawfully, intentionally,
       deliberately, and with premeditation kill Joyce Durham, in violation of section
       39-13-202, Tennessee Code Annotated, and against the peace and dignity of
       the State of Tennessee.

It is not disputed that the first degree murder statute was amended effective July 1, 1995, or
that the petitioner’s crime was committed after that date. Prior to 1995, first degree murder
was defined as an intentional, premeditated, and deliberate killing of another. After the
amendment, the crime was defined as a premeditated and intentional killing of another, thus
deleting the element of deliberation. T.C.A. § 39-13-202 (Supp. 1996). Moreover, it is clear
that the petitioner was indicted pursuant to the obsolete statute which required a finding of
deliberation.

       In fact, the error was noticed during the trial. Sua sponte, the trial court made the
following statements on the record:

               One thing that has not been filed that I noticed some time ago, the State
       in the indictment alleges deliberation for a murder occurring in 1996. That
       was removed as an element of the offense of first degree murder in 1995, the
       previous year. I had been thinking about the situation, and one thing that I can
       think of is that there’s a possibility that the Supreme Court may declare the
       present murder statute unconstitutional so what you’ve done is indicted under
       the previous murder statute which really is to the benefit of the defense, and
       I want to call that to your attention that the indictment does not follow the law.
       It follows the previous law, and I have gone ahead and prepared my
       instructions accordingly which puts a greater burden on the State but may keep
       it from being constitutionally suspect some place down the road.

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From this statement, it is apparent that the jury was charged pursuant to the pre-1995 law.
The issue was also addressed in this court’s opinion affirming the petitioner’s conviction.

              At the time of the offense in this case, the relevant statute defined first
       degree murder as “[a] premeditated and intentional killing of another.” Tenn.
       Code. Ann. § 39-13-202(a)(1) (1996). However, in the indictment the State
       charged the [petitioner] with first degree murder as defined prior to July 1,
       1995. Prior to that date, first degree murder required deliberation in addition
       to intent and premeditation. Tenn. Code Ann. § 39-13-202(a)(1) (1994).
       Before trial, the trial court noted the State’s error and also noted that the error
       benefitted the [petitioner] by placing a greater burden of proof upon the State.
       Because the State had failed to submit a motion to amend the indictment, the
       court concluded that it would instruct the jury according to the old statute.
       Defense counsel proffered no objection and does not challenge the indictment
       on appeal.

              Thus, at trial, the State was required to prove beyond a reasonable doubt
       that the [petitioner] killed [the victim] with intent, premeditation, and
       deliberation. . . .

Verlin Ralph Durham, 1999 Tenn. Crim. App. LEXIS, *24-25 (emphasis in original). The
court found that the evidence was sufficient to support the conviction. Id. at *32.

       In denying the instant petition for habeas corpus relief, the court found that:

               . . . [T]he State is correct in its assertion that “the error noted by the
       Trial and Appellate Courts did not affect the jurisdictional validity of the
       indictment.” This Court adopted the State’s analysis as to the validity of the
       Petitioner’s indictment. Because of this, the court is of the opinion that the
       trial court had jurisdiction in this matter and therefore the judgment of
       conviction is valid.

The State’s analysis adopted by the court was that “[t]he allegation that the killing required
“deliberation” was surplusage in light of the 1995 statute that only required proof that the
killing was premeditated and intentional. This error did not render the indictment fatally
defective. Therefore, the trial court had jurisdiction over the prosecution.”

        On appeal, the petitioner contends that the indictment was so defective, because it
failed to follow the applicable law in effect at the time of the crime, that it failed to vest
jurisdiction with the trial court to enter a judgment of conviction. We recognize that the

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indictment did charge the petitioner pursuant to the old law: however, we conclude that it did
not deprive the court of jurisdiction.

         “[T]he validity of an indictment and the efficacy of the resulting conviction may be
addressed in a petition for habeas corpus when the indictment is so defective as to deprive
the court of jurisdiction.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). Generally,
an indictment is valid if it contains information that is sufficient “(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) protect the accused from double jeopardy.” State
v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997); see also T.C.A. § 40-13-202 (2010). The general
rule is that an indictment is sufficient if it states the offense charged in the words of the
statute or in words equivalent to those contained in the statute. State v. Tate, 912 S.W.2d
785, 789 (Tenn. Crim. App. 1995) (citations omitted).

        As argued by the State, the indictment charging the petitioner with first degree murder
did charge him using words which were equivalent to those contained in the statute in effect
at the time of the offense, i.e., the 1995 amended law, because, although the amendment
removed the word deliberation, it did not dispense with the concept. We do agree that our
supreme court, in State v. Brown, 836 S.W.2d 530 (Tenn. 1992), referring to the pre-1995
law, stated that the elements of premeditation and deliberation were essential to a first degree
murder conviction, and, further, that the two terms were not synonymous. Brown, 836
S.W.2d at 538-39. Premeditation refers to a previously-formed intent to kill, while
“deliberation requires proof of a cool purpose that includes some period of reflection during
which the mind is free from passion or excitement.” State v. Bush, 942 S.W.2d 489, 501
(Tenn. 1997).

       While the law following the 1995 amendment did remove “deliberation” as a separate
element, the concept of deliberation remained encompassed within the statute pursuant to the
amended definition of “premeditation.” The 1995 amendment included a revised definition
of “premeditation,” which stated:

       [P]remeditation is an act done after the exercise of reflection and judgment.
       “Premeditation” means that the intent to kill must have been formed prior to
       the act itself. It is not necessary that the purpose to kill pre-exist in the mind
       of the accused for any definite period of time. The mental state of the accused
       at the time the accused allegedly decided to kill must be carefully considered
       in order to determine whether the accused was sufficiently free from excitement
       and passion as to be capable of premeditation.

T.C.A. § 39-13-202(d) (1996 Supp.) (emphasis added).             Thus, while the element of

                                              -5-
deliberation was omitted specifically, the amended definition of premeditation retained the
general concept of the omitted element. This court has previously noted that, an instruction
to the jury “that a premeditated act is one done after the exercise of reflection and judgment
encompasses the general concept of deliberation as set forth in prior law.” State v. Luther
Ray Dotson, Jr., No. E1999-00640-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 359, *24
n.1 (Tenn. Crim. App., at Knoxville, May 3, 2000) (citing Brown, 836 S.W.2d at 543). The
finding of deliberation is now merely incorporated within the definition of premeditation, not
totally dispensed with as argued by the petitioner. See Hart v. State, 21 S.W.3d 901, 904-05
(Tenn. 2000) (indictment incorrectly charging defendant with “carnal knowledge” under a
repealed statute not defective where “acts amounting to ‘carnal knowledge’ are included in
the definition of ‘sexual penetration.’”). As such, the petitioner is incorrect in his contention
that “[t]he 1995 amendment’s statutory language prohibited a conviction based upon
deliberation.”

        As argued by the State, the indictment at issue in this case charged the petitioner with
first degree murder in words equivalent to the law in effect at the time of the offense.
Because the crime was defined so similarly under both the pre- and post- amended law, the
indictment was sufficient to provide the petitioner with notice of the charge, provide the
court with the basis for entry of judgment, and protect the petitioner against double jeopardy.
The conviction in the case was not rendered void by use of the language of the prior version
of the statute, and the trial court had jurisdiction to enter judgment. As such, the habeas
corpus court correctly determined that relief was not warranted in this case.

                                       CONCLUSION

        Based upon the foregoing, the denial of the petition for writ of habeas corpus relief
is affirmed.




                                                     _________________________________

                                                     JOHN EVERETT WILLIAMS, JUDGE




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