IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED DECEMB ER SESSION, 1997 January 21, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
STEVE CARROLL, ) C.C.A. NO. 03C01-9611-CR-00420 ) Appe llant, ) ) JOHNSON COUNTY ) V. ) ) HON. LYNN BROWN, JUDGE HOWARD CARLTON, WARDEN, ) ) Appellee. ) (HABEAS C ORPU S)
FOR THE APPELLANT: FOR THE APPELLEE:
STEV E CAR ROL L, pro se JOHN KNOX WALKUP N.E.C.C. #256046 Attorney General & Reporter P.O. Box 5000 Mountain City, TN 37683 ELIZABETH T. RYAN Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243
DAVID CROCKETT District Attorney General Route 19, Box 99 Johnson City, TN 37601
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION The Petition er, Ste ve Ca rroll, app eals a s of righ t the trial c ourt’s dismissal
of his petition for writ of habeas corpus. Petitioner argues four issues in this pro
se appeal: (1) the indictments were defective in that they were not properly
signed by the District Attorney; (2) the trial court erred in dismissing the petition
before the State’s response was filed; (3) the trial court erred in allowing different
classes of offenses to be included in the same indictment; and (4) the trial court
violated Tenn. Code Ann. § 29-21-108 in failing to grant the writ. We affirm the
judgm ent of the tria l court.
On June 2 1, 1995 , the Petitioner was indicted b y the Ca mpbe ll County
Grand Jury for one count of aggravated rape, two counts of aggravated sexual
battery, three counts of aggravated child abuse, one count of rape of a child, one
count of incest, an d two co unts of aggravated assault. Upon pleas of guilty, the
Petitioner was convicted of two counts of aggravated child abuse and sentenced
to ten yea rs in prison .
On Octo ber 23 , 1996 , the Pe titioner file d a pe tition for writ of habeas
corpus relief in th e Joh nson Coun ty Crim inal Co urt. He alleged that his
convictions were void because the indictment did not contain th e requisite
signature of the district attorney. Before the State filed a respon se, the trial court
dismissed the petition on O ctober 29, 199 6. The trial court concluded that the
petition failed to state a claim u pon wh ich relief cou ld be gra nted. After the
Petitioner appealed the dismissal of his petition to this Court, the State filed a
-2- motion to remand to the trial court for consideration of the issue raised by the
Petitioner in his petition, which motion was granted on January 28, 1997. The
trial court subsequently entered an order on March 25, 1997, dismissing the
petition because a “defe ct in an indictm ent is a matter which must be addressed
in the trial court and on dire ct app eal or b y petition for pos t-conv iction w rit [sic] in
the trial court. It is not grounds for hab eas corpu s. Such doe s not remo ve
jurisdiction from any crim inal court of this [S]tate.” The Petitioner now b rings th is
appea l of the trial cou rt’s dismiss al of his pe tition for hab eas co rpus relief.
It is a well-established principle of law that the remedy of habeas corpus
is limited in its na ture and its scope . Archer v. State, 851 S.W.2d 157, 161-62
(Tenn. 1993); Passa rella v. State , 891 S.W.2d 619, 626 (Tenn. Crim. App . 1994).
In Tennessee, habeas corpus relief is available only if “‘it appears upon the face
of the judgme nt or the record of the p rocee dings upon which the jud gme nt is
rendered’ that a convicting court was without jurisdiction or authority to sentence
a defendan t, or that a defenda nt’s sentence o f imprisonm ent 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 prep ondera nce of the evidenc e. 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 habeas corpus relief. Id.
I. Alleged D efective Ind ictmen ts
-3- Petitioner first argues that his convictions are void because each count of
the indictment was not signed by the District Attorney General. Tennessee Code
Annotated section 40-13-103 requires a district attorney to sign the charging
document before it is sent to the grand jury. Our supreme court has also stated
that no indictm ent sho uld be se nt to the grand jury “without the sanction and
approbation of the s olicitor-g enera l, prove d by his signature on some part of the
bill.” Fout v. State, 4 Tenn. (3 H ayw.) 98, 99 (1816 ) (emp hasis adde d). Cle arly
a signature is required, but one is not necessarily required to be on each count
of an indictment. In State v. Lo ckett, our supreme court explained, “It is not
essential that the sig nature o f the officer sh ould be placed a t the end of the
indictme nt. It is sufficie nt if it appear on some other part of the paper, provided
it appear beyond doubt that the attestation relates to the ind ictment and every
part thereof, an d identifies th e sam e as the a ct and ac cusation of the
governm ent, done through its sworn officer.” 50 Tenn . (3 Heisk.) 274-7 5 (1871).
The court a lso sta ted tha t it is not “a bsolu tely nec essa ry that th e sign ature s hould
be at the c onclu sion o f the bill; b ut it mu st be o n it, and mus t show that it is
intended to co ver all the counts co ntained therein.” Id. at 275.
The District Attorney General in the instant case signed the second page
of a two-page indictment. The counts in the in dictm ent we re con secu tively
numbered, starting on page one and continuing through page two. It can be
logica lly reasoned that his signature was plainly intend ed to cov er all the co unts
contained in the two-page indictment. We find no merit in this issue.
II. Alleged Error in Dismissing Petition Before State Filed Response
-4- The trial court dismissed the Petitioner’s petition for habeas corpus relief
before the State’s response was filed beca use P etitione r had n ot sho wn tha t his
conviction was void or that his term of imprisonment had expired. In Pass arella,
this Co urt held that if it is clear from the face of the p etition th at the p etitione r is
not entitled to relief, then the trial court is not required to hold a hearing or inquire
into the allegations in the petition, but may dismiss the petition summarily. 891
S.W.2d at 627. Petitioner’s allegations in the instan t case , if merito rious, w ould
render his conviction voidable rather than void, thus making the issues
inappro priate for habeas corpus relief. Therefore, the trial court had the authority
to sum marily dism iss the pe tition. This iss ue is witho ut merit.
III. Alleged Error in Allowing Different Classes of Offenses in Same Indictment
Petitioner argues that the C ampb ell Coun ty Criminal Court erred in placing
different classe s of offe nses in the sa me in dictm ent. T his Co urt finds that this
issue is not appropriate for habeas corpus review because even if the issue had
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED DECEMB ER SESSION, 1997 January 21, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
STEVE CARROLL, ) C.C.A. NO. 03C01-9611-CR-00420 ) Appe llant, ) ) JOHNSON COUNTY ) V. ) ) HON. LYNN BROWN, JUDGE HOWARD CARLTON, WARDEN, ) ) Appellee. ) (HABEAS C ORPU S)
FOR THE APPELLANT: FOR THE APPELLEE:
STEV E CAR ROL L, pro se JOHN KNOX WALKUP N.E.C.C. #256046 Attorney General & Reporter P.O. Box 5000 Mountain City, TN 37683 ELIZABETH T. RYAN Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243
DAVID CROCKETT District Attorney General Route 19, Box 99 Johnson City, TN 37601
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION The Petition er, Ste ve Ca rroll, app eals a s of righ t the trial c ourt’s dismissal
of his petition for writ of habeas corpus. Petitioner argues four issues in this pro
se appeal: (1) the indictments were defective in that they were not properly
signed by the District Attorney; (2) the trial court erred in dismissing the petition
before the State’s response was filed; (3) the trial court erred in allowing different
classes of offenses to be included in the same indictment; and (4) the trial court
violated Tenn. Code Ann. § 29-21-108 in failing to grant the writ. We affirm the
judgm ent of the tria l court.
On June 2 1, 1995 , the Petitioner was indicted b y the Ca mpbe ll County
Grand Jury for one count of aggravated rape, two counts of aggravated sexual
battery, three counts of aggravated child abuse, one count of rape of a child, one
count of incest, an d two co unts of aggravated assault. Upon pleas of guilty, the
Petitioner was convicted of two counts of aggravated child abuse and sentenced
to ten yea rs in prison .
On Octo ber 23 , 1996 , the Pe titioner file d a pe tition for writ of habeas
corpus relief in th e Joh nson Coun ty Crim inal Co urt. He alleged that his
convictions were void because the indictment did not contain th e requisite
signature of the district attorney. Before the State filed a respon se, the trial court
dismissed the petition on O ctober 29, 199 6. The trial court concluded that the
petition failed to state a claim u pon wh ich relief cou ld be gra nted. After the
Petitioner appealed the dismissal of his petition to this Court, the State filed a
-2- motion to remand to the trial court for consideration of the issue raised by the
Petitioner in his petition, which motion was granted on January 28, 1997. The
trial court subsequently entered an order on March 25, 1997, dismissing the
petition because a “defe ct in an indictm ent is a matter which must be addressed
in the trial court and on dire ct app eal or b y petition for pos t-conv iction w rit [sic] in
the trial court. It is not grounds for hab eas corpu s. Such doe s not remo ve
jurisdiction from any crim inal court of this [S]tate.” The Petitioner now b rings th is
appea l of the trial cou rt’s dismiss al of his pe tition for hab eas co rpus relief.
It is a well-established principle of law that the remedy of habeas corpus
is limited in its na ture and its scope . Archer v. State, 851 S.W.2d 157, 161-62
(Tenn. 1993); Passa rella v. State , 891 S.W.2d 619, 626 (Tenn. Crim. App . 1994).
In Tennessee, habeas corpus relief is available only if “‘it appears upon the face
of the judgme nt or the record of the p rocee dings upon which the jud gme nt is
rendered’ that a convicting court was without jurisdiction or authority to sentence
a defendan t, or that a defenda nt’s sentence o f imprisonm ent 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 prep ondera nce of the evidenc e. 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 habeas corpus relief. Id.
I. Alleged D efective Ind ictmen ts
-3- Petitioner first argues that his convictions are void because each count of
the indictment was not signed by the District Attorney General. Tennessee Code
Annotated section 40-13-103 requires a district attorney to sign the charging
document before it is sent to the grand jury. Our supreme court has also stated
that no indictm ent sho uld be se nt to the grand jury “without the sanction and
approbation of the s olicitor-g enera l, prove d by his signature on some part of the
bill.” Fout v. State, 4 Tenn. (3 H ayw.) 98, 99 (1816 ) (emp hasis adde d). Cle arly
a signature is required, but one is not necessarily required to be on each count
of an indictment. In State v. Lo ckett, our supreme court explained, “It is not
essential that the sig nature o f the officer sh ould be placed a t the end of the
indictme nt. It is sufficie nt if it appear on some other part of the paper, provided
it appear beyond doubt that the attestation relates to the ind ictment and every
part thereof, an d identifies th e sam e as the a ct and ac cusation of the
governm ent, done through its sworn officer.” 50 Tenn . (3 Heisk.) 274-7 5 (1871).
The court a lso sta ted tha t it is not “a bsolu tely nec essa ry that th e sign ature s hould
be at the c onclu sion o f the bill; b ut it mu st be o n it, and mus t show that it is
intended to co ver all the counts co ntained therein.” Id. at 275.
The District Attorney General in the instant case signed the second page
of a two-page indictment. The counts in the in dictm ent we re con secu tively
numbered, starting on page one and continuing through page two. It can be
logica lly reasoned that his signature was plainly intend ed to cov er all the co unts
contained in the two-page indictment. We find no merit in this issue.
II. Alleged Error in Dismissing Petition Before State Filed Response
-4- The trial court dismissed the Petitioner’s petition for habeas corpus relief
before the State’s response was filed beca use P etitione r had n ot sho wn tha t his
conviction was void or that his term of imprisonment had expired. In Pass arella,
this Co urt held that if it is clear from the face of the p etition th at the p etitione r is
not entitled to relief, then the trial court is not required to hold a hearing or inquire
into the allegations in the petition, but may dismiss the petition summarily. 891
S.W.2d at 627. Petitioner’s allegations in the instan t case , if merito rious, w ould
render his conviction voidable rather than void, thus making the issues
inappro priate for habeas corpus relief. Therefore, the trial court had the authority
to sum marily dism iss the pe tition. This iss ue is witho ut merit.
III. Alleged Error in Allowing Different Classes of Offenses in Same Indictment
Petitioner argues that the C ampb ell Coun ty Criminal Court erred in placing
different classe s of offe nses in the sa me in dictm ent. T his Co urt finds that this
issue is not appropriate for habeas corpus review because even if the issue had
merit, the conviction would not be void but merely vo idable. See Pass arella, 891
S.W .2d at 627 .
Rule 14 of the Tennessee Rules of Criminal Procedure provides for
severance of offenses in appropriate cases. It provides that a defendant’s motion
for severance of offenses must be made before trial unless it is based on a
ground not known prior to trial. In this case, Petitioner pled guilty to two of the
offenses in the indictm ent. Not o nly is the issu e waived by failure to file a motion
for severance prior to the guilty plea, we see absolutely no prejudice to Defendant
if conso lidation of the offenses in one indictment was improper due to the fact
-5- that Petitioner p led guilty to on ly two of the m ultiple offens es in the in dictme nt.
This issu e is withou t merit.
IV. Alleged Failure of Trial Court in Refusing to Entertain Petitioner’s Petition
In his final issue, Petitioner alleges again that his conviction was void, and
that it was therefore unconstitutional for the trial court to not entertain his petition.
He also argues that the trial court’s dismissal of his petition was arbitrary, callous
and mad e with d elibera te indiffe rence as to h is rights . In sup port of h is argument
that it was unconstitutional, Petitioner cites Rule 58 of the Tennessee Rules of
Civil Procedure. How ever, this rule applies to proper e ntry of judgm ents with
notice given to the parties. Therefore, this rule is inapplicable to the issues and
case a t bar.
Regarding Petitioner’s argument that his conviction is void, this issue has
been reviewed above and decided against the Petitioner. Furthermore, we do not
find the actions of the trial court to be arbitrary or “callous.” The trial court was
justified in dismissing Petitioner’s petition, as his conviction was not void an d his
senten ce had not expire d. This iss ue is witho ut merit.
Finding no merit in the issues raised by Petitioner, we affirm the judgment
of the trial cou rt.
____________________________________ THOMAS T. W OODALL, Judge
-6- CONCUR:
___________________________________ DAVID H. WELLES , Judge
___________________________________ DAVID G. HAYES, Judge
-7-