        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs February 29, 2012

            ROY ALLEN SCOTT v. DAVID OSBORNE, WARDEN

                 Appeal from the Criminal Court for Morgan County
                    No. 2011-CR-45     E. Eugene Eblen, Judge




               No. E2011-02021-CCA-R3-HC-FILED-APRIL 30, 2012




Petitioner, Roy Allen Scott, appeals the Morgan County Criminal Court’s summary dismissal
of his petition for writ of habeas corpus. He claims entitlement to habeas corpus relief
because the trial court for the underlying convictions was without jurisdiction to enter his
conviction for aggravated assault. In addition, he contends that his convictions for driving
under the influence and vehicular assault violate double jeopardy principles. Discerning no
error, we affirm the judgment of the habeas corpus court.

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

R OGER A. P AGE, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL, J.,
joined. J ERRY L. S MITH, J., not participating.

Roy Allen Scott, Pikeville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, and John H. Bledsoe, Senior Counsel,
for the appellee, State of Tennessee.

                                        OPINION

                              I. Facts and Procedural History

       In a previous opinion, a panel of this court summarized the facts underlying
petitioner’s case as follows:

       On January 3, 2000, the petitioner, Roy Allen Scott, entered in the Wayne
       County Circuit Court pleas of nolo contendere to charges stemming from
       several indictments. Specifically, in indictment number 12040, the petitioner
       pled nolo contendere to resisting arrest, a Class B misdemeanor, for which he
       received a six-month sentence. On indictment number 12041, the petitioner
       pled nolo contendere to driving under the influence, fourth offense, a Class E
       felony, for which he received a two-year sentence. On indictment number
       12042, he pled nolo contendere to two counts of reckless endangerment, a
       Class E felony, and for each conviction he received a two-year sentence. On
       indictment number 12043, he pled nolo contendere to evading arrest, a Class
       D felony, for which he received a four-year sentence. On indictment number
       12044, he pled nolo contendere to aggravated assault, a Class C felony, for
       which he received a six-year sentence. On indictment number 12045, he pled
       nolo contendere to driving on a revoked license, a Class B misdemeanor, and
       he received a six-month sentence. In indictment number 12192, the petitioner
       pled nolo contendere to escape, a Class E felony, and he received a two-year
       sentence. According to the petitioner’s brief, he was in jail in relation to the
       charges in indictment numbers 12040 through 12045 when he committed the
       escape for which he was charged in indictment number 12192. The
       petitioner’s sentences for resisting arrest, evading arrest, and driving on a
       revoked license were to be served concurrently with each other but
       consecutively to the other sentences. The remaining sentences were ordered
       to be served consecutively to each other for a total effective sentence of
       eighteen years.


Roy Allen Scott v. Jim Worthington, Warden, No. E2008-02234-CCA-R3-HC, 2009 WL
3335578 , at *1 (Tenn. Crim. App. Oct. 16, 2009). Petitioner previously sought habeas
corpus relief in the Morgan County Criminal Court, and this court affirmed the habeas corpus
court’s denial of relief. Id. at *2-*3.

       On June 14, 2011, petitioner filed a second petition for habeas corpus relief in the
Morgan County Criminal Court. The State filed a motion to dismiss on August 12, 2011, to
which petitioner replied on August 18, 2011. On August 25, 2011, the court filed a written
order denying habeas corpus relief. Petitioner timely appealed the denial of relief.

                                         II. Analysis

       On appeal, petitioner alleges that his aggravated assault conviction is void because he
did not execute a written waiver to plead nolo contendere to aggravated assault instead of
attempted first degree murder, the indicted charge. Further, petitioner contends that dual
convictions for driving under the influence and vehicular assault violate constitutional
protections against double jeopardy.

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        Whether habeas corpus relief should be granted is a question of law that we review
de novo without a presumption of correctness. State v. Livingston, 197 S.W.3d 710, 712
(Tenn. 2006); Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). In Tennessee, habeas corpus
relief is available only when the judgment is void on its face or the sentence at issue has
expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). Habeas corpus petitions are
to contest void, not merely voidable, judgments. State ex rel. Newsom v. Henderson, 424
S.W.2d 186, 189 (Tenn. 1968).

       A void judgment is “one that is facially invalid because the court did not have the
statutory authority to render such judgment.” Summers v. State, 212 S.W.3d 251, 256 (Tenn.
2007). A voidable judgment “is one that is facially valid and requires proof beyond the face
of the record or judgment to establish its invalidity.” Id. at 255-56. The burden is on the
petitioner to establish that the judgment is void or that the sentence has expired. State ex rel.
Kuntz v. Bomar, 381 S.W.2d 290, 291-92 (Tenn. 1964). The trial court may dismiss a
petition for writ of habeas corpus without an evidentiary hearing and without appointing a
lawyer when the petition does not state a cognizable claim for relief. Hickman v. State, 153
S.W.3d 16, 20 (Tenn. 2004); State ex rel. Edmondson v. Henderson, 421 S.W.2d 635,
636–37 (Tenn. 1967); see Tenn. Code Ann. § 29-21-109 (2010). A court may also
summarily dismiss a petition for writ of habeas corpus if the petitioner does not comply with
the procedural requirements for pursuing habeas corpus relief. Archer, 851 S.W.2d at 165;
Summers, 212 S.W.3d at 259-60 (citing Hickman, 153 S.W.3d at 21).

        The grand jury indicted petitioner, in indictment number 12044, for attempted first
degree murder. Petitioner pled nolo contendere to aggravated assault on that count of the
indictment instead of pleading guilty to the indicted offense. Petitioner now claims that the
judgment of conviction as to this count is void because he did not execute a written waiver
of his right to be tried on the indicted charge. He also claims that because aggravated assault
is not a lesser-included offense of attempted first degree murder, he could not have pled
guilty to aggravated assault without an amendment to the indictment. Petitioner argues that
because his aggravated assault conviction is for a charge that the original lawful indictment
did not contain, the trial court did not have jurisdiction to convict him.

       A valid indictment is an essential jurisdictional element without which there can be
no prosecution. Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998) (citing State v. Hill,
954 S.W.2d 725, 727 (Tenn. 1997); State v. Stokes, 954 S.W.2d 729, 730 (Tenn. 1997). An
indictment may be amended in all cases with the consent of the petitioner. Tenn. R. Crim.
P. 7(b). For 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).

                                               -3-
       In State v. Yoreck, 133 S.W.3d 606, 612 (Tenn. 2004), our supreme court held that if
“(1) the trial court properly had subject matter jurisdiction over the cases at issue, (2) it
appears that the indictments were orally amended during the guilty plea proceedings, and (3)
the judgments indicate agreed amendments to the indictments,” then the indictments are not
void on their faces. Id. at 612. The defendants in Yoreck were initially charged with proper
indictments, but pled guilty to an offense that was not a lesser-included offense of the
indicted offense. The judgments of convictions listed the amended offense, and the Yoreck
court concluded that the defendants were given notice of the charges of which they were
convicted. Id.

        Similarly, in Studdard v. State, 182 S.W.3d 283, 286-88 (Tenn. 2005), the court held
that the trial court had subject matter jurisdiction to accept the defendant’s guilty plea to
incest although it was not a lesser-included offense of the indicted offense of rape of a child.
In Studdard, the judgment did not reflect an amended charge. Instead, the judgment listed
the offense as rape of child and underneath that section, listed the convicted offense as incest.
The court concluded “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. at 287. Thus, the court
concluded that “the conviction was, at most, voidable, and therefore, is not jurisdictionally
defective.” Id.

        In the present case, the State initially charged petitioner through a valid indictment
that vested the trial court with jurisdiction. The record in this case does not contain the
judgments of conviction or a transcript of the plea colloquy, thus, it does not establish
whether the judgment reflected the amendment. However, in his brief, petitioner admits that
he pled nolo contendere to aggravated assault instead of the indicted offense of attempted
first degree murder. Aggravated assault is not a lesser-included offense of attempted first
degree murder. See Demonbreun v. Bell, 226 S.W.3d 321, 324 (Tenn. 2007). Petitioner’s
agreement to plead guilty to aggravated assault was, in effect, his consent to an amendment
to the indictment. See Tenn. R. Crim. P. 7(b). Thus, the trial court retained jurisdiction to
enter judgment on the amended charge. Furthermore, “even if the indictment was not
properly amended, such allegations would merely render the judgment voidable, not void.”
Jim McConnell v. Jim Morrow, Warden, No. E2010-02341-CCA-R3-HC, 2011 WL
1361569, at *3 (Tenn. Crim. App. Apr. 11, 2011) (citing Gary E. Aldridge v. State, No.
M2004-01861-CCA-R3-HC, 2006 WL 1132073, at *3 (Tenn. Crim. App., Apr. 28, 2006);
Donald Walton v. State, No. M2002-02044-CCA-R3-CO, 2004 WL 193052, at * 2 (Tenn.
Crim. App., Jan. 28, 2004)). Accordingly, we conclude that petitioner is not entitled to relief
on this issue.


                                               -4-
        Next, petitioner argues that his dual convictions for driving under the influence and
vehicular assault violate constitutional double jeopardy protections. As previously noted, the
record on appeal does not contain the judgments of conviction. It is the petitioner’s duty to
compile a complete record for appeal. Tenn. R. App. P. 24(b). Despite petitioner’s
omission, we glean from the record that petitioner pled nolo contendere to aggravated assault
under Tennessee Code Annotated section 39-13-102 and not vehicular assault under
Tennessee Code Annotated section 39-13-106. Petitioner’s convictions for driving under the
influence and aggravated assault do not involve second prosecutions or multiple punishments
for the same offense. Thus, they did not violate constitutional double jeopardy protections.
See Tenn. Code Ann. § 55–10–401; Tenn. Code Ann. § 39–13–102. We conclude that
petitioner’s claim is without merit, and he is not entitled to relief.

                                       III. Conclusion

       Based on the foregoing, we affirm the judgment of the habeas corpus court.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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