Thompson v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 22, 1998
• Docket: 03C01-9611-CR-00395
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED MAY 1997 SESSION January 22, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk WILLIAM PERRY THOMPSON, ) ) Appellant, ) No. 03C01-9611-CR-00395 ) ) Johnson County v. ) ) Honorable Lynn W . Brown, Judge ) HOWARD CARLTON, WARDEN,) (Writ of Habeas Corpus) AND STATE OF TENNESSEE, ) ) Appellees. )

For the Appellant: For the Appellee:

William Perry Thompson, Pro Se John Knox Walkup N.E.C.C. #143559 Attorney General of Tennessee P.O. Box 5000 and Mountain City, TN 37683 Sandy R. Copous Assistant Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493

David E. Crockett District Attorney General Route 19, Box 99 Johnson City, TN 37601

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton Judge OPINION

The petitioner, William Perry Thompson, appeals as of right from the

dismissal of his petition for habeas corpus relief by the Johnson County Criminal Court

for failure to state a cause of action upon which relief could be granted. The petitioner

is presently in the custody of the Department of Correction serving his sentences for his

1989 and 1990 convictions upon his entry of guilty pleas for third degree burglary,

grand larceny, and receiving and concealing stolen property. On appeal, the petitioner

contends that his convictions are void because the indictments are fatally defective in

that (1) the district attorney’s signature does not appear on each count of the

indictments, (2) the counts of the indictments do not contain a caption stating the

county and the state in which the offenses occurred, and (3) each indictment is not

properly endorsed as a true bill and signed by the grand jury foreperson. The petitioner

also contends that the trial court erroneously dismissed the petition without allowing the

state to respond and improperly permitted the indictments to include different classes of

offenses in a single indictment. We conclude that the trial court properly dismissed the

petition.

In his pro se petition for a writ of habeas corpus, the petitioner contends

that he is being illegally restrained of his liberty because the indictments were not

sufficiently signed by the district attorney, because there was not a sufficient number of

grand jury members to find a true bill, that the captions were insufficient to support

proper indictments, and the court was without jurisdiction because the offenses took

place in another county. The petitioner also asserted that his sentences were

excessive and prejudicial. The petitioner did not include copies of the indictments at

issue.

2 On the same day that the petitioner filed his petition, the petitioner filed

several motions to dismiss the indictments on grounds that each count of the

indictments did not contain the district attorney’s signature and that the indictments

were not properly signed and endorsed as being a true bill by the jury foreperson. The

petitioner also filed a motion to clarify the grounds for his petition for writ of habeas

corpus relief.

Before the state’s response to the petition was filed, the trial court

dismissed the petition. The trial court concluded that the petition failed to state a claim

upon which relief could be granted.

Subsequently, the state supplemented the record with certified copies of

the indictments at issue. The multiple-count indictments do not include the district

attorney’s signature at the end of each count, but rather the signature of the district

attorney appears at the end of the last count of each indictment. The spaces for the

district attorney’s signatures are left blank and a line has been drawn through the

notation “Charles E. Hawk District Attorney General” on the remaining pages of each

indictment. Also, at the beginning of each of the indictments, a caption setting forth the

county and the state appears.

When a petitioner is being held pursuant to a judgment of conviction,

habeas corpus relief is available only when it can be shown that the judgment is void or

the sentence has expired. See Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). In

this respect, before a judgment can be declared to be void, “the judgment itself or the

record of the proceedings, standing alone, must show a want of jurisdiction . . . .”

Passarella v. State, 891 S.W.2d 619, 628 n.49 (Tenn. Crim. App. 1994).

3 We agree with the trial court’s decision that the petitioner failed to state

grounds upon which relief could be granted. Claims regarding defects in the indictment

must be raised before trial, unless the claim relates to the trial court’s lack of jurisdiction

or failure to charge an offense. The district attorney’s or grand jury foreperson’s failure

to endorse or sign the indictment does not deprive the trial court of jurisdiction, and the

failure to raise the issues before trial constitutes a waiver of the issue pursuant to Rule

12(b)(2), Tenn. R. Crim. P. State v. Roy Danny Mayo, No. 01C01-9308-CC-00287,

Cheatham County, slip op. at 5 (Tenn. Crim. App. Oct. 20, 1994) (citing Applewhite v.

State, 597 S.W.2d 328 (Tenn. Crim. App. 1979) (“foreman’s signature has come to be

viewed as ‘a procedural safeguard rather than a substantive requisite of an indictment,’”

and complaints regarding the lack of the foreperson’s signature are waived if not raised

pretrial).1

Likewise, the petitioner’s contentions that the indictments do not contain

an appropriate caption indicating the county and the state where the offenses occurred

and that different classes of offenses are contained in a single indictment do not

present grounds for habeas corpus relief as they relate to nonjurisdictional defects in

the indictment not raised before trial. See Mitchell v. State, 16 Tenn. 514, 528 (1835)

(caption is not part of the indictment but is a formal statement of the proceedings that

appears before the introduction of the indictment); Miller v. State, 508 S.W.2d 804, 807

(Tenn. Crim. App. 1973) (indictment not void because indictment charged separate and

distinct offenses). Therefore, the trial court correctly determined that the petitioner’s

allegations were not proper grounds for habeas corpus relief. Under these

circumstances, the trial court’s dismissal of the petition without requiring the state to

respond was proper.

1 We note that the petitioner conceded in his supplemental brief the issue relating to the indictments not being properly endorsed or signed by the grand jury foreperson. We agree that the grand jury foreperson’s signature appears on each of the indictments indicating that a true bill was found by the jury.

4 The petition fails to state a claim for which a writ of habes corpus should

issue. Therefore, the judgment of the trial court is affirmed.

Joseph M. Tipton, Judge

CONCUR:

Joe B. Jones, Presiding Judge

Curwood Witt, Judge