         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                   FILED
                              AT KNOXVILLE                         June 7, 1999

                                                              Cecil Crowson, Jr.
                         FEBRUARY SESS ION, 1999              Appellate C ourt
                                                                  Clerk




JAMES E. MARTIN,                  )    C.C.A. NO. 03C01-9807-CR-00253
                                  )
           Appe llant,            )
                                  )    JOHNSON COUNTY
V.                                )
                                  )
HOWARD CARLTON, WARDEN,           )    HON. LYNN W. BROWN, JUDGE
and STATE OF TENNESSEE,           )
                                  )
           Appellee.              )    (HABEAS CORPUS)



FOR THE APPELLANT:                     FOR THE APPELLEE:

JAME S E. M ARTIN , pro se             JOHN KNOX WALKUP
Northeast Correction Complex #121405   Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683                TODD R. KELLEY
                                       Assistant Attorney General
                                       2nd Floor, Cordell Hull Building
                                       425 Fifth Avenue North
                                       Nashville, TN 37243

                                       JOE C. CR UM LEY, J R.
                                       District Attorney General

                                       MICH AEL J. F AHEY , II
                                       Assistant District Attorney General
                                       114 Alf Taylor Road
                                       Johnson City, TN 37601




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       The Petitioner, James E. Martin, appeals as of right the trial court’s dismissal

of his petition fo r writ of habeas corpus relief. After a careful review of the record,

we affirm the judgm ent of the tria l court.



       On April 18, 1988, Petitioner pled guilty to first degree murder and armed

robbery. The trial court sentenced him to concurrent life sentences. On May 4,

1998, Petitioner filed a pro se petition for writ of habeas corpus which was

subs eque ntly denied by the trial court. In this appeal, Petitioner raises the following

issues:

                I.   Whether the trial court lacked jurisdiction;

               II.   Wh ether the indictme nts were sufficient;

                     A.   Culpa ble me ntal state
                     B.   Reference to Tennessee Code Annotated
                     C.   District Attorney G eneral’s signature
                     D.   Multiplicitous Indictment

              III.   Whether Petitioner received the effective assistance
                     of counsel; and

              IV.    W hether Petitioner’s plea wa s knowingly and
                     volunta rily entered into, whether the trial court erred
                     in accepting Petitioner’s plea, and whether a
                     confession Petitioner made in jail wa s adm itted in
                     violation of Petitioner’s Fourth Amendment rights.


       It is a we ll-estab lished princip le of law tha t the rem edy of h abea s corp us is

limited in its nature and its sco pe. Archer v. State, 851 S.W.2d 157, 161-62 (Tenn.

1993); Pass arella v. State , 891 S.W .2d 619 , 626 (T enn. C rim. App . 1994). In

Tennessee, habe as co rpus re lief is ava ilable o nly if “‘it appears upon the face of the

judgment or the record of the proceedings upon which the judgment is rendered’ that



                                               -2-
a convicting court was without jurisdiction or authority to sentence a defendant, or

that a defendan t’s sentence of im prisonme nt or other restraint has expired.” Archer,

851 S.W.2d at 164 (citation omitted in original). The petitioner has the burden of

establishing either a void judgment or an illegal confinement by a preponderance of

the evidence. Pass arella, 891 S.W.2d at 627. Moreover, where a judgment is not

void, but is merely voidable, such judgment may not be collaterally attacked in a suit

for habe as corp us relief. Id.



                                       I. Jurisdiction



       In this issue, Petition er argu es tha t the trial c ourt did not have the jurisdiction

to convic t him. H owev er, we fin d that th e Crim inal Court of Hamilton County was

vested with jurisdiction in the instant case by statutory authority and by the

constitution of the Sta te of Ten nesse e. See Tenn. Code Ann. § 16-1-101; Tenn.

Cons t. art. VI, § 1. Th is issue is w ithout me rit.



                            II. Sufficiency of the Indic tments



       In this issue, Petitioner asserts that his convictions are void because of

various insufficiencies in the indictments. After a careful review of these issues, we

find the ind ictmen ts to be su fficient.




A. Culpa ble Men tal State




                                             -3-
      Petitioner contends that the indictments were void because they did not allege

a culpable mental state for the offenses of arm ed robbery and first degree m urder.

The crimes in this cas e were com mitted in 1986 , before the enactment of the 1989

Criminal Code. Post-1989 cases have focused on Tennessee Code Annotate d

section 39-11-301 and -302, which require a culpable mental s tate for the

commission of a criminal offense and define the four culpable mental states

applic able to violations of the 1989 Criminal Code. See, e.g., Sate v . Hill, 954

S.W.2d 725 (Tenn. 1997). However, the criminal law at the time of Petitioner’s

crimes did not contain an analogous provis ion. See e.g., Carl E. Saine v. Alton

Hesson, Warden, C.C.A. No. 02C01-9710-CC-00399, Lauderdale County (Tenn.

Crim. App., Jackso n, Dec. 15, 19 97), perm. to appeal denied (Tenn. 1998). The first

degree murde r counts in the indictm ent allege in pertinen t part as follow s:

             That [Petitioner] heretofore on or about the 28th day of
             Augu st, 1987 [sic], in the Coun ty aforesaid, did un lawfully,
             feloniously, willfully, delibe rately, m alicio usly[, ]
             prem editate dly and of malice aforethought assault, kill and
             murder James W. Brown, against the peace and dignity of
             the State.

             ...

             That [Petitioner] heretofore on or about the 28th day of
             Augu st, 1986, in the C ounty afores aid, did unlawfully and
             felonio usly murder James W. Brown, while in the
             perpetration of Robbery, against the peace and dignity of
             the State .


At the time of the crimes, first degree murder was defined in pertinent part as

“[e]very murder perpetrated by means of poison, lying in wait, or by other kind of

willful, deliberate , maliciou s and p remed itated killing, or committed in the

perpetration of or attempt to perpetrate, any . . . robbery . . . .” Te nn. Co de Ann . §

39-2-20 2 (Sup p. 1982 ).




                                           -4-
       The armed robbery indictment alleges in pertinent part as follows:

              That [Petitioner] heretofore on the 28th da y of Augu st,
              1986, in the County aforesaid, did unlawfully, felonio usly
              and forcibly take from the person of James W. Brown, the
              following described pro perty, to-wit: good and lawful
              money of the United States of America, valued at more
              than $200.00, the property of James W . Brown, by the use
              of force and violence, by the use of a dangerous and
              dead ly weapon, to-wit: a belt, or by putting the said James
              W . Brown in fear of bodily injury, against the peace and
              dignity of the State.


On the releva nt date , robbe ry was define d as “th e felon ious a nd forc ible taking from

the person of another, goods or money of any value, by violence or putting the

person in fear. . . . [I]f the robbery be accomplished by the use of a deadly weapon

the punishment shall be death by electrocution, or the jury may commute the

punishment to imprisonment for life or for any period of time not less than ten (10)

years.” Tenn . Code An n. § 39-2-501 (Supp. 198 2).



       A portion of the former Criminal Code relevant to the indictments in this case

provides that the ind ictments must “state the fa cts constituting the offen se in ordinary

and concise language, without prolixity or repetition, in such a ma nner a s to en able

a person of com mon unde rstand ing to k now w hat is intended, and with that degree

of certain ty which will enable the court, on conviction, to pronounce the proper

judgmen t . . . .” Tenn. Code A nn. § 40-13-2 02 (Supp . 1982).



       After reviewing the indictments under the applicable law, we find them to be

sufficient. The indictments in the case at bar closely follow the statutory form of the

crimes. The culpable mental states required by the statutes are sufficiently alleged,

or can be inferred, from the wordin g in the indictm ents. F urther more , their for m is

consistent with the m andate of section 40-13-202 (Supp. 1982). Thus, we find them

                                            -5-
sufficient under the law as it existed at the time.        We note that although not

controlling in the present case, our supreme court’s decision in Hill supports our

conclusion. The court stated in the Hill opinion that “an indictmen t need not con form

to traditionally strict pleading requirements,” and that “[i]n mo dern p ractice , it is

unneces sary to charge guilty knowledge unless it is included in the statuto ry

definition of the offense.” 954 S.W.2d at 727, 729. Having reviewed the language

of the indictments in this case, we find that it would suffice under the supreme court’s

analys is of the current statutory requirements of notice and form as well. This issue

is without m erit.



B. No Reference to Tennessee Code Annotated

       Petitioner also contends that the indictments for armed robbery and first

degree murder are invalid because neither references statutory authority.              An

indictment or prese ntmen t must pr ovide no tice of the o ffense ch arged, a n adeq uate

basis for the entry of a proper judgment, and suitable protection against double

jeopardy. State v. T rusty, 919 S.W .2d 305 , 309 (T enn. 19 96); State v. Byrd, 820

S.W.2d 739, 740-41 (Ten n. 1991 ). Again, the indictme nt mus t “state the fa cts

constituting the offense in ordinary and concise language, without prolixity or

repetition, in such a manner as to enable a person of comm on und erstand ing to

know what is intend ed, an d with th at deg ree of c ertainty which will enable the court,

on conviction, to pronounce the proper judgment . . . .” Tenn. Code Ann. § 40-13-202

(Supp. 1982). In the instant case, we find that the indictments provided Petitioner

sufficient information of the charges against him, and therefore, this issue is without

merit. Furthermore, failure to raise this issue before trial constitutes a waiver of the

issue pursua nt to Tenn. R . Crim. P. 12(b)(2 ).




                                           -6-
C. Attorney G eneral’s Signa ture

       Petitioner argues that his c onviction for first degree m urder is void because

each coun t of the in dictm ent wa s not s igned by the D istrict Atto rney G enera l.

Tennessee Code A nnotated se ction 40-13-1 03 requires a district attorney to sign the

charging docum ent before it is sent to the g rand jury. Our suprem e court has also

stated that no indictment should be sent to the grand jury “without the sanction and

approbation of the s olicitor-g enera l, proved by his signature on some part of the b ill.”

Fout v. State, 4 Tenn. (3 Hayw.) 98, 99 (1816) (emphasis added).                 Clearly a

signature is required, but one is not necessarily required to be on each count of an

indictme nt. In State v. Lo ckett, our supreme court explained, “It is not essential that

the signature of the offic er sho uld be place d at the end o f the ind ictme nt. It is

sufficient if it appear on some other part of the paper, provided it appear beyond

doubt that the attestation relates to the indictment and every part thereof, and

identifies the sam e as the a ct and ac cusation of the gov ernme nt, done through its

sworn officer.” 50 Tenn. (3 Heisk.) 274-75 (1871). The court also stated that it is not

“abso lutely necessary that the signature should be at the conclusion of the bill; but

it must be on it, and must show that it is intended to cover all the counts contained

therein.” Id. at 275.



       The District Attorney General in the instant case signed a one-page, two-count

indictment at the bottom of the page.             The cou nts in the indictme nt were

cons ecutive ly numbered. It can be logica lly reaso ned th at his sig nature was p lainly

intended to cover both the counts contained in the one-page indictment.

Notwithstanding the fact that we have concluded the signature in the case sub judice

to be proper, this Court has consiste ntly held tha t a district attorney’s failure to sign

an indictm ent wo uld no t depriv e the tria l court o f jurisdic tion. See, e.g., Mickey A.

                                            -7-
Brown v. State, C.C.A. No. 03C01-9707-CR-00280, Johns on Co unty (Tenn. Crim.

App., Knoxville, Aug. 17, 1998), perm. to appeal denied (Tenn. 1999). Therefore,

an objec tion to a defec t of this n ature m ust be mad e pre-t rial, and not in a collate ral,

post-trial habea s corpu s petition. See Tenn. R. Crim. P . 12(b)(2); Nelson B. Graves

v. Howard Carlton, Warden, C.C.A. No. 03C01-9705-CR-00171, J ohnso n Cou nty

(Tenn. Crim. A pp., Kno xville, Mar. 25 , 1998), perm. to appeal denied (Tenn. 199 8).

We find no merit in this issue.



D. Multiplicitous Indictment

       Petitioner alleges that the counts in the indictment pertaining to first degree

murder a re invalid because they are multip licitous . Petition er app ears to argue , in

part, that he has b een u ncon stitutionally subjected to double jeopardy. Petitioner

was charged with common law first degree murder and felony murder. This method

of charging Petitioner did not subje ct him to double jeopardy. Our state and federal

constitutions protect a p erson fro m bein g prose cuted a secon d time for the same

offense after acquittal or conviction, and from being punished multiple times for the

same offense. See State v. Mounce, 859 S.W.2d 319, 321 (Tenn. 1993). In the

instant case, two counts of the indictmen t alleged alternative means of committing

the same offen se, murde r. Howeve r, Petitioner pled guilty to one count of first

degree murder. Therefore, he was not prosecuted nor punished twice for the same

offense. See Earl E. Collier v. Charles Jones, Warden, C.C.A. No. 03C01-9710-CR-

00464, Morga n Cou nty (Tenn . Crim A pp., Knoxville, A ug. 14, 19 98), perm. to appeal

denied (Tenn. 1999). Furthermore, only one sentencing judgment was entered for

a violation of Ten ness ee Co de An notate d sec tion 39 -13-2 02. Th is Court has noted,

“the trial cou rt’s entry of only one judgment of conviction imposing only one sentence

. . . protects the defen dant from receiving m ultiple pun ishme nts for the same offense.

                                              -8-
No double jeopa rdy peril exists.” State v. Addison, 973 S.W.2d 260, 267 (Tenn.

Crim. A pp. 199 7), perm. to appeal denied (Tenn. 199 8). We note th at the S tate is

not even required to elect at trial between first degree preme ditated an d delibera te

murder and felon y murd er charg ed in sep arate co unts of the ind ictme nt for a s ingle

offense. See State v. Henley, 774 S.W.2d 908, 916 (Tenn. 1989). We also note

that a con viction for both first degree murder and armed robbery did not subject

Petitioner to doub le jeopard y either. See State v. Norris, 684 S.W .2d 650, 654

(Tenn. Crim. App . 1984). Finally, this is not an appropriate issue for habeas corpus

relief. See Collier, C.C.A. No. 03C01-9710-CR-00464, slip op. at 1-2. This issue is

without m erit.



                                      Issues III and V



       The Petitioner contends in these issues that he was provided ineffective

assistance of counsel, that a confession he made while in custody was in violation

of his Four th Ame ndme nt rights, tha t his plea w as unk nowing ly and invo luntarily

entered into, and that the trial court erred in accepting his plea. These kinds of

collateral attacks based on constitutional challenges to an otherwise valid conviction

are proper for post-conviction relief proceedings, but not in a proceeding for habeas

corpus relief. See, e.g., Archer v. State, 851 S.W .2d 157, 164 -65 (Tenn . 1993).

None of these allegations is proper for a habeas corpus petition because they do not

render h is judgm ent void. T hese iss ues are without m erit.



       Based on all the foregoing, we affirm the trial court’s dismissal of the

petition for w rit of habea s corpu s relief.




                                                -9-
                         ____________________________________
                         THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
JERRY L. SMITH, Judge


___________________________________
L. T. LAFFERTY, Senior Judge




                               -10-
