         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 19, 2003

               DONALD W. RHEA, JR. v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Wayne County
                            No. 13019     Stella Hargrove, Judge



                  No. M2003-01034-CCA-R3-CO - Filed February 24, 2004


The petitioner, Donald W. Rhea, Jr., pled guilty in the Davidson County Criminal Court to robbery
and attempted robbery and received a nine-year sentence. Subsequently, the petitioner filed for
habeas corpus relief in the Wayne County Circuit Court, alleging that his sentence was illegal and
that the indictments underlying his conviction were fatally defective. The trial court dismissed the
habeas corpus petition and the petitioner timely appealed. Upon review of the record and the parties’
briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE , P.J., and
THOMAS T. WOODALL, J., joined.

Donald W. Rhea, Jr., Clifton, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; and
Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                     I. Factual Background

        The petitioner was indicted on count one for aggravated robbery and count two for attempted
aggravated robbery. Ultimately, he pled guilty to robbery and attempted robbery and received a total
effective sentence of nine years incarceration in the Tennessee Department of Correction. On direct
appeal, this court summarized the facts underlying the petitioner’s pleas in the following manner:

                       [I]n July 1999, fourteen-year-old Trad Staecker, accompanied
               by his mother, Deborah, attended a late night movie. Enroute home,
               Mrs. Staecker stopped at a service station to purchase gasoline. As
               Trad Staecker pumped the gasoline, he noticed the [petitioner]
               rummaging through a blue car that was parked behind their own
               vehicle on the service station premises. The [petitioner] approached
               the Staeckers and asked for a cigarette. When the Staeckers informed
               the [petitioner] that they did not smoke, the [petitioner] demanded
               money. Mrs. Staecker replied that she only had a checkbook. The
               [petitioner] then became violent and threatened to “blow up the F--
               ing car.” Mrs. Staecker stated that she was going to call the police.
               The [petitioner] replied, “Oh, you can’t do a damn thing about it.
               You don’t know who I am. The police can’t do a goddamn thing
               about it.”

                       Trad Staecker went toward the gas station in an attempt to get
               help. However, the station attendant had locked all of the doors,
               preventing Trad from entering the station. Nonetheless, Trad
               continued to shout for the attendant to call the police. Meanwhile,
               Mrs. Staecker was attempting to obtain the license plate number from
               the [petitioner’s] vehicle. The [petitioner] attacked Mrs. Staecker,
               knocking her to the ground. He then took her checkbook and began
               choking her. When Trad became aware of his mother’s situation, he
               immediately returned to confront her attacker. The [petitioner]
               warned Trad that “he had a knife and that he would kill the two of
               [them] right then and there.”

                       A bystander came forward and ordered that the [petitioner]
               “leave that woman and her child alone.” At this point, the attendant
               unlocked the doors enabling Trad and Mrs. Staecker to enter the
               station. Two UPS employees also approached, shouting at the
               [petitioner] to “leave them alone.” The [petitioner] then dropped the
               checkbook and fled behind a Waffle House restaurant.

                       The [petitioner] was found hiding behind the Waffle House
               where he was arrested. At the time police took him into custody, the
               [petitioner] was armed with “two knives and a putty knife.” Even
               after his arrest, the [petitioner] continued with his threats to kill the
               Staeckers.

State v. Donald W. Rhea, Jr., No. M2000-02299-CCA-R3-CD, 2001 WL 849538, at *1 (Tenn. Crim.
App. at Nashville, July 27, 2001). On appeal, this court affirmed the judgments of the trial court.


        Thereafter, the petitioner, acting pro se, filed a petition for habeas corpus relief. In his
petition, the petitioner contended, among other things, that “the evidence actually adduced . . . does
not support the allegations set forth in the indictment,” namely that the State could not establish the


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kind of weapon used during the offenses. Additionally, the petitioner complained that his judgment
of conviction on count two, while specifying that he pled guilty to attempted robbery, referenced
Tennessee Code Annotated section 39-13-402 (1997), the aggravated robbery statute, as the
appropriate code section. The petitioner argued that he pled guilty to attempted robbery, not
attempted aggravated robbery, and thus the judgment of conviction on that count was fatally flawed.

        The trial court dismissed the petition, finding that the petitioner “has waived any claims
regarding the validity of the indictment by pleading guilty.” Additionally, the trial court found that
the notation on the judgment referencing Tennessee Code Annotated section 39-13-402 was a
clerical error which could be corrected at any time. The petitioner now appeals this ruling, seeking
habeas corpus relief.

                                             II. Analysis

        Initially, we note that the determination of whether to grant habeas corpus relief is a question
of law. See 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 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. See 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).

        In the instant case, the trial court found that when the petitioner pled guilty, he waived any
complaints regarding the indictments. “The principle is well-settled in Tennessee jurisprudence that
the voluntary entry of an informed and counseled guilty plea constitutes an admission of all facts
necessary to convict and waives all non-jurisdictional defects and constitutional irregularities which
may have existed prior to the entry of the guilty plea.” State v. Pettus, 986 S.W.2d 540, 542 (Tenn.
1999); see also Tenn. R. Crim. P. 12(b)(2); State v. Smith, 996 S.W.2d 845, 846-47 (Tenn. Crim.
App. 1999). Upon our examination of the record, we can discern no jurisdictional defects in the
indictments. Accordingly, we agree with the trial court that the petitioner waived any alleged defects
in the indictment by pleading guilty.




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        As we have noted, the petitioner also complains that the judgment for his attempted robbery
conviction reflects that he was convicted of attempted robbery, but cites the aggravated robbery
statute as the code section underlying the offense. The judgment also indicates that the offense was
a Class C felony. The State contends that the listing of the incorrect code section and the incorrect
class of the offense was merely a clerical error and does not serve to render the judgment for that
offense void.

        Tennessee Rule of Criminal Procedure 36 provides that “[c]lerical mistakes in judgments .
. . may be corrected by the court at any time.” This court has stated:

                  In making changes for clerical error, the record in the case must show
                  that the judgment entered omitted a portion of the judgment of the
                  court or that the judgment was erroneously entered. The most reliable
                  indicator that clerical error was made is the transcript of the hearing
                  or other papers filed in connection with the proceedings which show
                  the judgment was not correctly entered.

State v. Jack Lee Thomas, Jr., No. 03C01-9504-CR-00109, 1995 WL 676396, at *1 (Tenn. Crim.
App. at Knoxville, Nov. 15, 1995).

       In the instant case, the trial court found, “Based on the plea agreement attached to petitioner’s
pleading, it is clear the discrepancies are clerical errors subject to correct[ion] at any time.” Upon
our examination of the record, we note that the petitioner’s guilty pleas provide that the petitioner
pled guilty on count two to attempted robbery, a Class D felony. Thus, we conclude that the
incorrect markings are merely clerical errors which do not render the petitioner’s attempt conviction
void. The petitioner is not entitled to habeas corpus relief on this issue.1 See Ronald W. Rice v.
David Mills, No. E2003-00328-CCA-R3-PC, 2003 WL 21972930, at *3 (Tenn. Crim. App. at
Knoxville, Aug. 19, 2003), perm. to appeal denied, (Tenn. 2004).

                                                III. Conclusion

         Based upon the foregoing, we affirm the judgment of the trial court.



                                                               ___________________________________
                                                               NORMA McGEE OGLE, JUDGE




         1
           Generally, clerical errors may be remedied by filing a motion for correction under Rule 36 of the Tennessee
Rules of Criminal Procedure.

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