        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs November 10, 2011

  GARY WAYNE GARRETT v. CHERRY LINDAMOOD, WARDEN


              Direct Appeal from the Circuit Court for Wayne County
                        No. 14943 Stella Hargrove, Judge



                No. M2010-02662-CCA-R3-HC - December 21, 2011



The Petitioner, Gary Wayne Garrett, appeals the Wayne County Circuit Court’s dismissal
of his petition seeking a writ of habeas corpus. The Petitioner contends that his
convictions are void. Upon a review of the record in this case, we conclude that the
habeas court properly denied the petition for habeas corpus relief. Accordingly, the
judgment of the habeas corpus court is affirmed.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and J OHN E VERETT W ILLIAMS, JJ., joined.

Gary Wayne Garrett, pro se, Clifton, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney
General; T. Michel Bottoms, District Attorney General, for the appellee, State of
Tennessee.

                                      OPINION

                           I. Facts and Procedural History

       A Davidson County jury convicted the Petitioner of multiple offenses as charged
in sixteen counts of an eighteen-count indictment. On direct appeal, this Court
summarized the Petitioner’s convictions and sentences as follows:

      Count 1-First degree burglary-8 years.
       Count 2-Petit larceny-2 years.

       Count 3-Aggravated rape-30 years.

       Count 4-Aggravated rape-30 years.

       Count 5-First degree burglary while in possession of a firearm-11 years.

       Count 6-Aggravated rape-30 years.

       Count 7-Aggravated rape-30 years.

       Count 8-First degree burglary while in possession of a firearm-11 years.

       Count 9-Assault with intent to commit rape while employing a firearm (6
       years, plus 5 years for employing firearm)-11 years.

       Count 10-First degree burglary-8 years.

       Count 11-Rape-10 years.

       Count 12-Rape-10 years.

       Count 14-First degree burglary, while in possession of firearm-11 years.

       Count 15-Aggravated rape-30 years.

       Count 16-Aggravated rape-30 years.

       Count 18-Attempt to commit a felony, to-wit: first degree burglary, while
       employing a firearm (3 years, plus 5 years for employing firearm)-8 years.

State v. Gary Wayne Garrett, NO. C.C.A. 86-274-III, 1988 WL 3625, at *1 (Tenn. Crim.
App., at Nashville, Jan. 20, 1988) perm. app. denied (Tenn. April 4, 1988). On direct
appeal, this Court affirmed the Petitioner’s convictions. Id. Thereafter, the Petitioner
filed a petition seeking post-conviction relief based upon a claim of ineffective assistance
of counsel. This Court affirmed the post-conviction court’s denial of this request for




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relief. Gary Wayne Garrett v. State, No. 01C019202CR00058, 1992 WL 389657 (Tenn.
Crim. App., at Nashville, Dec. 31, 1992) perm. app. denied (Tenn. June 7, 1993). The
Petitioner filed two other post-conviction petitions, both of which were denied as time-
barred. The Petitioner then filed a petition pursuant to the Post-Conviction DNA
Analysis Act of 2001. By order in accordance with Rule 20 of the Rules of the Court of
Criminal Appeals, this Court affirmed the post-conviction court’s dismissal of the petition
based upon DNA analysis results that were unfavorable to the Petitioner.

       In September 2010, the Petitioner filed, in Wayne County, the habeas corpus
petition that is the subject of this appeal. The Petitioner challenged his 1986 convictions
in Davidson County Criminal Court because of “facially defective indictments.” The
Petitioner attached his indictments, judgments of conviction, and a copy of the trial
transcript. The State filed a motion to dismiss because the indictments were not defective
and the judgments were not void. The trial court dismissed the petition, finding that the
Petitioner was not entitled to relief on the merits.

                                        II. Analysis

       On appeal, the Petitioner maintains that his judgments are void. The State
counters that the Petitioner failed to establish any defect in the indictments. Therefore,
the State argues, the habeas court’s dismissal of the Petitioner’s petition was not in error.
We agree with the State.

        Article I, section 15 of the Tennessee Constitution guarantees the right to seek
habeas corpus relief. See Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007).
Although the right is guaranteed in the Tennessee Constitution, the right is governed by
statute. T.C.A. § 29-21-101 (2006) et seq. The determination of whether habeas corpus
relief should be granted is a question of law and is accordingly given de novo review.
Smith v. Lewis, 202 S.W.3d 124, 127 (Tenn. 2006); Hart v. State, 21 S.W.3d 901, 903
(Tenn. 2000). Although there is no statutory limit preventing a habeas corpus petition,
the grounds upon which relief can be granted are very narrow. Taylor v. State, 995
S.W.2d 78, 83 (Tenn. 1999). It is the burden of the petitioner to demonstrate 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). In other words, the very
narrow grounds upon which a habeas corpus petition can be based are as follows: (1) a
claim there was a void judgment which was facially invalid because the convicting court
was without jurisdiction or authority to sentence the defendant; or (2) a claim the
defendant’s sentence has expired. Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn.




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2000); Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “An illegal sentence, one
whose imposition directly contravenes a statute, is considered void and may be set aside
at any time.” May v. Carlton, 245 S.W.3d 340, 344 (Tenn. 2008) (citing State v.
Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)). In contrast, a voidable judgment is “one
that is facially valid and requires the introduction of proof beyond the face of the record
or judgment to establish its invalidity.” Taylor, 995 S.W.2d at 83; see State v. Ritchie, 20
S.W.3d 624, 633 (Tenn. 2000).

       Although in most instances a challenge to the sufficiency of an indictment is not a
proper claim to raise in a habeas corpus proceeding, see Haggard v. State, 475 S.W.2d
186, 187–88 (Tenn. Crim. App. 1971), “the 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). An indictment meets constitutional requirements if it
provides sufficient information: (1) to enable the accused to know the accusation to which
an answer is required, (2) to furnish the court an 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). In addition, an indictment must state the facts of the offense in
ordinary and concise language “in a manner so as to enable a person of common
understanding to know what is intended.” T.C.A. § 40-13-202.

        The Petitioner’s petition seeking habeas corpus relief relies on the argument that
his indictments are “facially defective.” In its motion to dismiss, the State responded that
the allegations in the indictments are patterned after the respective statute, statutory
citation is provided and sufficient facts are alleged. In the Petitioner’s appellate brief, he
asserts that the State has “misinterpreted the facts and evidence submitted by petitioner.”
The Petitioner focuses his argument on five issues, some of which still go to the
effectiveness of the indictment. The State’s appellate brief addresses only the issue of the
indictment so the Petitioner filed a reply brief again contending that the State
“misinterpreted the facts and evidence submitted” and stating that he “is not asserting his
claim is based on all 18 counts of his indictments are void based on the [State]’s argument
or interpretation that petitioner’s issues in his petition is based on defective indictments.”
The Petitioner then lays out five issues, he believes, that require habeas corpus relief.

       First, he claims that he can not be convicted of both burglary and petit larceny




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based upon a case1 indicating that larceny “is embraced in the burglary charge.” The
Petitioner misunderstands the law as it relates to this issue. In Carter v. State, the
defendant was convicted of both burglary and grand larceny for breaking into a residence
and stealing a television set. 447 S.W.2d 115 (Tenn. Crim. App. 1969). This Court held
that, under the specific facts of that case, the defendant could not be convicted of both
burglary and larceny for the single offense of taking a television set. Id. at 119.      The
attendant felony to the burglary charge in the indictment in this case is rape not theft,
therefore, the law upon which the Petitioner relies is inapplicable. Furthermore, Carter
cited Cronan v. State, 82 S.W. 477 (Tenn. 1904) in support of its holding that the
Defendant could not be convicted of both burglary and grand larceny. Cronan, however,
was no longer the applicable law at the time of the commission of the offenses in this
case. The Tennessee Supreme Court overruled Cronan in State v. Davis, 613 S.W.2d
218, 221 (Tenn. 1981), holding that burglary with the intent to commit larceny and
larceny arising out of the same criminal transaction may result in separate convictions.

       Next, the Petitioner argues that Tennessee Code Annotated, section, 39-6-1710(b)
(1982) required that the trial court order count eight and count nine to run consecutively
with one another. And, because the trial court ordered the two sentences to run
concurrent to one another, his sentence “directly contraven[es] the statute mandate.” The
statute section upon which the Petitioner relies, however, refers to crimes involving a
destructive device and is inapplicable to the Petitioner’s convictions.

        The Petitioner’s third assertion is that the trial court was not authorized by statute
to sentence him to eight years for his conviction for attempted burglary. The Petitioner
relies upon Tennessee Code Annotated, section, 39-1-501 (1982). This statute provides
for a punishment “not exceeding 5 years” for attempted felonies. The Petitioner was
sentenced to three years for his attempt to commit first degree burglary. The Petitioner
was sentenced to five years for carrying a weapon in violation of Tennessee Code
Annotated, section, 39-6-1710(a) (1982) for a total sentence of eight years. Therefore,
the Petitioner’s sentence in count eighteen was authorized by the applicable statutes at the
time of sentencing.

       Next, the Petitioner argues that the indictments in count 1, 5, 8, and 10 fail to
1
  The Defendant does not give a legal citation for the case he references, however, he quotes
 from “Notes to Decision” “Included Offenses.” Finding the corresponding language in the notes
following the burglary statute, we were able to identify the Petitioner’s reference.




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include essential elements of the offense of burglary and “the [Petitioner]’s name and the
time the crime was committed.” Our review of the indictments in this case reveal that
each of these indictments contain the Petitioner’s name, the date of the burglary, that the
burglary occurred at night, and the required elements of burglary at the time of these
offenses.

       The Petitioner’s last issue is that counts 3, 4, 6, 7, 11,12, 15, and 16 fail to allege
the essential elements of the offenses charged. Our review of the indictments, indicate
that each of these indictments, which charge the Petitioner with either aggravated rape or
rape, contain the essential elements of the charged offense.

        The Petitioner has not satisfied his burden of showing by a preponderance of the
evidence that the convictions are void or that the prison term has expired. State v.
Davenport, 980 S.W.2d 407, 409 (Tenn. Crim. App. 1998). As such, the Petitioner is not
entitled to habeas corpus relief.

                                      III. Conclusion

       In accordance with the aforementioned reasoning and authorities, we conclude that
the petition lacks merit. As such, we affirm the judgment of the habeas court.

                                                   _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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