State v. William Lee

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 20, 1999
• Docket: 02C01-9807-CC-00208
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

APRIL 1999 SESSION FILED July 20, 1999

Cecil Crowson, Jr. Appellate Court Clerk WILLIAM MICHAEL LEE, ) a/k/a WILLIAM LEE DRUMBARGER, ) C.C.A. No. 02C01-9807-CC-00208 ) Appellant, ) Lake County ) v. ) Honorable R. Lee Moore, Jr., Judge ) FRED RANEY, Warden, ) (Habeas Corpus) ) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

William Michael Lee, pro se Michael E. Moore LCCX - Site 01 - 98676 Solicitor General Lauderdale County Correctional Complex P. O. Box 1000 J. Ross Dyer Henning, TN 38041-1000 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243

C. Phillip Bivens District Attorney General P. O. Drawer E Dyersburg, TN 38024

OPINION FILED: ____________________________________

AFFIRMED

L. T. LAFFERTY, SENIOR JUDGE OPINION

The petitioner, William Michael Lee, (a.k.a. William Lee Drumbarger), appeals as

of right from the trial court’s dismissal of his petition for writ of habeas corpus. We affirm

the judgment of the trial court.

On June 10, 1998, the petitioner filed a pro se petition for a writ of habeas corpus

with the Lake County Circuit Court. The petitioner was an inmate at the Northwest

Correctional Complex at the time he filed his petition. He claimed that the trial court: (1)

denied him proper notice, by way of formal indictments, of the nature and cause of the

accusations being lodged against him; and (2) denied him a fair and meaningful

opportunity to defend against the accusations lodged against him in violation of the Fifth,

Sixth, and Fourteenth Amendments to the United States Constitution and Article 1,

Sections Eight and Nine of the Tennessee Constitution.

In support of his claims, the petitioner attached to the petition copies of all

indictments and judgments against him, copies of unpublished opinions of this Court

relevant to the issues in the petition, and a copy of the statute that the petitioner is alleged

to have violated, Tenn. Code Ann. § 39-3703. Furthermore, the petitioner alleged that the

instant petition is his second petition for writ of habeas corpus. However, the petitioner has

failed to file and attach a copy of his first petition, nor has he attached copies of the results

of any evidentiary hearings, the results of any action of the trial court as to the merits of the

first petition, or any direct appeals that were taken.

The Davidson County grand jury indicted the petitioner under the name of William

Lee Drumbarger for five counts of aggravated rape of five different boys, ages 7 through

10, and one count of aggravated sexual battery of a sixth boy, 11 years of age. The

indictments alleged a time span from October, 1981 through January, 1982. A jury found

the petitioner guilty of all charges and fixed his punishment at life for each of the

aggravated rapes and thirty-five years for the aggravated sexual battery. The trial court

ordered the sentences to be served concurrently. On direct appeal, this Court affirmed the

2 convictions. State v. William Lee Drumbarger, No. 83-141-111 (Tenn. Crim. App.,

Nashville, March 22, 1985), per. app. denied (Tenn. 1985).

The petitioner contends the indictments are void in that the term “sexual penetration”

as used in the indictments did not clearly state “in ordinary and concise language” exactly

what sexual penetration entails, so that a “person of ‘common understanding’ will know

what is intended.” Although the statute defines “fellatio” as sexual penetration, the

petitioner contends that he did not commit aggravated rape, since the petitioner performed

fellatio on the victims, thus there was no penetration.

The trial court dismissed the petition on the basis that the petitioner failed to comply

with Tenn. Code Ann. § 29-21-107, which mandates that the petitioner attach a copy of the

judgment of convictions to his petition. In its brief, the state agrees with the petitioner that,

although the form attached to the petition for habeas corpus is a different form than that

currently used by the courts, the judgment form attached by the petitioner is the correct

form for a judgment in 1983 and is still valid today. Therefore, the state contends that the

petitioner is being legally detained. However, regardless of the correctness of the form,

the state argues that the petitioner has not shown that the judgment itself is void, which is

a prerequisite to obtaining habeas corpus relief.

It is a well established principle of law that the remedy of habeas corpus is limited

in nature and its scope. Archer v. State, 851 S.W.2d 157, 161-62 (Tenn. 1993). In

Tennessee, habeas corpus relief is available only if “it appears upon the face of the

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

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

defendant’s sentence of imprisonment or other restraint has expired.” Id. The petitioner

has the burden of establishing either a void judgment or an illegal confinement by a

preponderance of the evidence. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim.

App. 1994).

3 As part of that burden, the petitioner must comply fully with the mandatory

provisions of Tenn. Code Ann. § 29-21-107. In his petition, the petitioner stated this is his

second petition for habeas corpus relief, but failed to attach any disposition of the

allegations or merits in the first petition for relief. Thus, we are at a loss as to exactly what

happened in a prior proceeding. We are unable to determine whether the petitioner raised

similar issues in the first petition. Tennessee Code Annotated § 29-21-107(4) provides that

the petitioner shall state “[t]hat it is the first application for the writ, or, if a previous

application has been made, a copy of the petition and proceedings thereon shall be

produced, or satisfactory reasons be given for the failure so to do.”

Without question, the procedural provisions of the habeas corpus statutes are

mandatory and must be followed scrupulously. Archer, 851 S.W.2d at 165; State ex rel.

Wood v. Johnson, 216 Tenn. 531, 393 S.W.2d 135, 136 (1965); State ex rel. Kuntz v.

Bomar, 214 Tenn. 500, 381 S.W.2d 290, 291 (1964); Bateman v. Smith, 183 Tenn. 541,

543, 194 S.W.2d 336, 337 (1946). It is the petitioner’s duty to prepare a record which

conveys a fair and accurate account of what transpired with respect to the issues that form

the basis of the appeal in order to allow for a meaningful appellate review. Tenn. R. App.

P. 24; State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App.), per. app. denied (Tenn.

1991). Thus, the petitioner has failed to comply with the mandatory provisions of Tenn.

Code Ann. § 29-21-107 and is not entitled to any relief. Gene H. Crank v. State, No.

01C01-9708-CR-00318, 1998 WL 800190, at *1 (Tenn. Crim. App., Nashville, November

19, 1998); Charles R. Smith v. Jimmy Harrison, Warden, No. 02C01-9607-CC-00241, 1997

WL 404012, at *1 (Tenn. Crim. App., Jackson, July 18, 1997), per. app. denied (Tenn.

1998).

4 On other grounds, we affirm the trial court’s judgment.

______________________________________ L. T. LAFFERTY, SENIOR JUDGE

CONCUR:

___________________________________ JOSEPH M. TIPTON, JUDGE

___________________________________ DAVID G. HAYES, JUDGE