         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

            MARSHALL TIDWELL v. VIRGINIA LEWIS, WARDEN

                      Appeal from the Circuit Court for Bledsoe County
                           No. 26-2005    Buddy D. Perry, Judge



                    No. E2005-01933-CCA-R3-HC - Filed January 20, 2006


The petitioner, Marshall Tidwell, pled guilty in the Dickson County Circuit Court to five counts of
rape and three counts of sexual battery, and he received a total effective sentence of fifty years.
Subsequently, the petitioner filed in the Bledsoe County Circuit Court a petition for a writ of habeas
corpus. The habeas corpus court summarily dismissed the petition, which dismissal the petitioner
appeals. The State filed a motion requesting that this Court affirm the habeas corpus court’s denial
of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Upon review of the record
and the parties’ briefs, we conclude that the petition was properly dismissed. Accordingly, the
State’s motion is granted and the judgment of the habeas corpus court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed Pursuant
                    to Rule 20, Rules of the Court of Criminal Appeals.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JAMES CURWOOD WITT , JR., J., joined.

Marshall Tidwell, Pikeville, Tennessee, Pro se.

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

                                  MEMORANDUM OPINION

        On February 15, 1988, the petitioner pled guilty in the Dickson County Circuit Court to five
counts of rape and three counts of sexual battery, which charges originated from three multiple count
indictments. The petitioner, pursuant to a plea agreement, was sentenced as a Range II, persistent
offender to twenty years incarceration for each rape conviction and five years for each sexual battery
conviction. The plea agreement further provided that on indictment number 15955, the appellant’s
five-year sexual battery sentence was to be served consecutively to his twenty-year rape sentence,
for a sentence of twenty-five years on that indictment; on indictment number 15956, the petitioner’s
five-year sexual battery sentence was to be served consecutively to two of his twenty-year rape
sentences, for a sentence of twenty-five years on that indictment; and on indictment number 15957,
the petitioner’s five-year sexual battery sentence was to be served consecutively to two of his twenty-
year rape sentences, for a sentence of twenty-five years on that indictment. The agreement stated
that the decision as to whether the twenty-five year sentences were to be served consecutively or
concurrently would be left to the discretion of the trial court. After a sentencing hearing, the trial
court ordered the appellant to serve his twenty-five year sentence on indictment number 15956
consecutively to his twenty-five year sentence on indictment number 15955 but concurrently to his
twenty-five year sentence on indictment number 15957, for a total effective sentence of fifty years.

      Subsequently, the petitioner filed a petition for a writ of habeas corpus; alleging the following
grounds for relief:

               1. The indictments charging him with rape were void on their face.

               2. The trial court was without jurisdiction to sentence the petitioner
               as a “persistent offender.”

               3. The “indictments were fatally flawed and void regarding inspecific
               dates and locations as to alleged offenses.”

Specifically, the petitioner claimed that because “[t]he two alleged victims in this case were 15 years
old and, from the very limited record, the sex was consensual,” the State should have charged him
with statutory rape, not rape. Additionally, the petitioner contended that the indictments did not
allege specific facts supporting the allegation that the sex was committed by “force or coercion.”
He further contended that the State failed to prove the elements of rape. Additionally, the petitioner
complained that the trial court was without jurisdiction to accept guilty pleas to statutory rape
because statutory rape is not a lesser-included offense of rape. Next, the petitioner alleged that the
trial court was without jurisdiction to sentence him as a persistent offender because his previous
Hickman County convictions, which were in effect at the time of the instant sentencing hearing, were
overturned after the Dickson County pleas and sentences were imposed. He also complained that
the Hickman County convictions should have been listed in the indictments charging him in the
instant case. Finally, the appellant maintained that the indictments were “multiplicitous” and
“stacked” because he was charged with committing several offenses on the same day involving the
same victim; i.e. the State charged alternate theories of the crime in different counts, such as rape,
statutory rape, unnatural acts, contributing to the delinquency of a minor, and sexual battery.

       In its order dismissing the petition for a writ of habeas corpus, the trial court stated:

                       In his first ground for relief the Petitioner asserts that the two
               victims consented to sex, which would preclude his convictions for
               rape. This claim is essentially a challenge to the sufficiency of the
               evidence. Habeas corpus relief is not available to challenge the
               sufficiency of the evidence . . . .



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                       The Petitioner next complains that the trial court was without
               jurisdiction to accept guilty pleas to statutory rape because it is not a
               lesser-included offense of rape. According to the plea submission
               transcript and the judgments, the Petitioner did not plead guilty to
               statutory rape and was not convicted of statutory rape. This claim is
               without merit.

                       The Petitioner also alleges that the trial court improperly
               sentenced him as a persistent offender for various reasons. This
               allegation, even if true, would merely render the Petitioner’s
               judgments voidable, not void. Offender classifications are non-
               jurisdictional and are not valid grounds for habeas corpus relief . . .
               .

                      Finally, the Petitioner claims that the indictments are void
               because they violate the principle of multiplicity. Such a claim does
               not warrant habeas corpus relief . . . . Even if this claim were true, it
               would merely render the judgments voidable, not void.

        Accordingly, the habeas corpus court dismissed the petition for failure to state a claim upon
which relief may be granted. The petitioner challenges this ruling. The State moves this court to
affirm the judgment of the habeas corpus court pursuant to Rule 20 of the Rules of the Court of
Criminal Appeals.

        The determination of whether to grant habeas corpus relief is a question of law. McLaney
v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). As such, we will review the trial court’s findings de novo
without a presumption of correctness. Id. Moreover, it is the petitioner’s burden 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).

        Article I, § 15 of the Tennessee Constitution guarantees an accused the right to seek habeas
corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). However, “[s]uch relief is
available only when it appears from the face of the judgment or the record of the proceedings that
a trial court was without jurisdiction to sentence a defendant or that a defendant’s sentence of
imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d at 322; see also Tenn. Code Ann.
§ 29-21-101 (2000). In other words, habeas corpus relief may be sought only when the judgment
is void, not merely voidable. Taylor, 995 S.W.2d at 83. “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.’ We have recognized that a sentence imposed in
direct contravention of a statute, for example, is void and illegal.” Stephenson v. Carlton, 28 S.W.3d
910, 911 (Tenn. 2000) (citations omitted).




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       As his first issue on appeal, the petitioner questions whether

               the trial court err[ed] in not granting habeas corpus relief in that the
               indictments were defective and void on their face regarding the facts
               that the alleged victims were age 15 and there was no proof as to rape,
               and only statutory rape could be legally charged, and statutory rape
               was merged with rape even though it is not a lesser included offense.

The petitioner also argues that the habeas corpus court erred “in not granting habeas corpus relief
regarding the fact that the indictments were fatally flawed regarding inspecific dates and locations
as to alleged offenses.”

        We note that in his brief, the petitioner specifically “waives [the] issue regarding statutory
rape charges being merged with the rape offenses.” Therefore, we will not address this ground on
appeal. The petitioner raises several complaints regarding the indictments underlying his
convictions. Generally, the sufficiency of an indictment is not a proper ground for habeas corpus
relief. See Haggard v. State, 475 S.W.2d 186, 187 (Tenn. Crim. App. 1971); Marvin Anthony
Matthews v. State, No. W2005-01504-CCA-R3-HC, 2005 WL 3202546, at *2 (Tenn. Crim. App.
at Jackson, Nov. 30, 2005). However, our supreme court has explained that “an indictment that is
so defective as to fail to vest jurisdiction in the trial court may be challenged at any stage of the
proceedings, including in a habeas corpus petition.” Wyatt, 24 S.W.2d at 323.

        We have examined the indictments underlying the petitioner’s convictions for rape and
sexual battery, and we conclude that they provide the necessary information to charge an offense and
forestall potential double jeopardy problems. See State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997).
Moreover, as the habeas corpus court noted, the heart of the petitioner’s challenges to the
indictments concern the sufficiency of the evidence against him. In other words, the petitioner
claims that the proof did not support his convictions for rape; the proof, at most, supported
convictions for statutory rape. Sufficiency of the evidence is not a proper ground for habeas corpus
relief. The entry of the petitioner’s guilty pleas to five counts of rape “constitutes an admission of
all facts alleged and a waiver of procedural and constitutional defects in the proceedings that
occurred before the entry of the plea.” State v. Smith, 996 S.W.2d 845, 847 (Tenn. Crim. App.
1999).

       We also note that the petitioner’s claim that the indictment raised multiplicitous charges
would render the judgments, at most, voidable, not void. See Gary Lynn Vernon v. Jim Dickman,
No. M2003-02268-CCA-R3-HC, 2004 WL 1778480, at *2 (Tenn. Crim. App. at Nashville, Aug. 9,
2004), perm. to appeal denied, (Tenn. 2004). Thus, the habeas corpus court was correct in
dismissing this ground of the petition.

       As his final issue on appeal, the appellant claims that the habeas corpus court erred “in not
granting habeas corpus relief regarding the fact that the sentencing court was without jurisdiction to
sentence [him] as a persistent offender.” The petitioner claims that the trial court utilized


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convictions which were later reversed to determine that the petitioner was a persistent offender as
that term was defined under the 1982 Sentencing Act. After our review of the record, we note that
it appears that the petitioner, as part of his plea agreement, agreed to be sentenced as a persistent
offender. This court has previously stated that offender classifications “are non-jurisdictional and
legitimate bargaining tools in plea negotiations.” Bland v. Dukes, 97 S.W.3d 133, 134 (Tenn. Crim.
App. 2002); see also Hicks v. State, 945 S.W.2d 706, 709 (Tenn. 1997). The petitioner is not
entitled to habeas corpus relief on this issue.

       Accordingly, the State’s motion is granted. The judgment of the trial court is affirmed
pursuant to Rule 20, Rules of the Court of Criminal Appeals.


                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




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