Assigned on Briefs February 3, 2015
Appeal from the Circuit Court for Lake County No. 14-CV-9999 R. Lee Moore, Jr., Judge
Frederick Moore, Tiptonville, Tennessee, pro se.
Herbert H. Slatery, III, Attorney General and Reporter; Tracy L. Adcock, Assistant Attorney General; Phillip Bivens, District Attorney General; and Rachel E. Willis, Senior Counsel, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.
CAMILLE R. MCMULLEN, JUDGE
Following a jury trial, the Petitioner, Frederick Moore, was convicted of first degree premeditated murder, first degree felony murder, aggravated kidnapping, and two counts of tampering with evidence. See State v. Frederick Lamont Moore, No. W2009-01266-CCA-R3-CD, 2011 WL 856379, at *1 (Tenn. Crim. App. Mar. 9, 2011), perm. app. denied (Tenn. July 14, 2011). The trial court merged the first degree premeditated murder conviction with the felony murder conviction and sentenced the Petitioner to an effective sentence of life imprisonment plus twenty years. See id. The Petitioner subsequently filed a petition for post-conviction relief, alleging ineffective assistance of counsel, which was denied by the post-conviction court. See Frederick Moore v. State, No. W2012-02189-CCA-R3-PC, 2013 WL 6001928, at *1 (Tenn. Crim. App. Nov. 6, 2013), perm. app. denied (Tenn. Mar. 5, 2014). This court affirmed the post-conviction court's denial of relief on appeal. See id.
On September 15, 2014, the Petitioner filed a pro se petition for writ of habeas corpus relief. In the petition, he alleged that his indictment is void and illegal, rendering his convictions and sentences void and illegal. He also argued that he was denied due process because he was not granted a second preliminary hearing prior to the return of the superseding indicment. On October 17, 2014, the trial court entered an order denying relief. This timely appeal followed.
On appeal, the Petitioner asserts that his convictions and sentences are void and illegal. Specifically, he asserts that (1) the State illegally amended his indictment without his consent; (2) the State impermissibly obtained a superseding indictment and failed to dispose of the original indictment; and (3) he was denied due process because he was not afforded a seconed preliminary hearing before the superseding indictment was returned. The State responds that the trial court properly denied relief. We agree with the State.
"The determination of whether habeas corpus relief should be granted is a question of law." Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000)). Accordingly, our review is de novo without a presumption of correctness. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006)).
A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15 of the Tennessee Constitution. Tenn. Const. art. I, ' 15; see T.C.A. §§ 29-21-101 to -130. The grounds upon which a writ of habeas corpus may be issued, however, are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). "Habeas corpus relief is available in Tennessee only when '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." Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 337 (1868)). A habeas corpus petition challenges void and not merely voidable judgments. Summers, 212 S.W.3d at 255 (citing Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992)). "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." Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998); Archer, 851 S.W.2d at 161-64). However, a voidable judgment "is facially valid and requires proof beyond the face of the record or judgment to establish its invalidity." Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citing Dykes, 978 S.W.2d at 529). Thus, "[i]n all cases where a petitioner must introduce proof beyond the record to establish the invalidity of his conviction, then that conviction by definition is merely voidable, and a Tennessee court cannot issue the writ of habeas corpus under such circumstances." State v. Ritchie, 20 S.W.3d 624, 633 (Tenn. 2000). Moreover, it is the petitioner's burden to demonstrate, by a preponderance of the evidence, that the judgment is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). If this burden is met, the Petitioner is entitled to immediate release. State v. Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986) (citing Ussery v. Avery, 432 S.W.2d 656, 658 (Tenn. 1968)).
"Generally, defenses and objections based on a defective indictment must be raised prior to trial or they are waived." Wyatt v. State, 24 S.W.3d 319, 322-23 (Tenn. 2000) (citing Tenn. R. Crim. P. 12(b)(2), (f)). However, "the validity of an indictment and the efficacy of the resulting conviction may be addressed in a petition for habeas corpus when the indictment is so defective as to deprive the court of jurisdiction." Dykes, 978 S.W.2d at 529. The Tennessee Supreme Court has stated that an indictment is valid if it contains sufficient information "(1) to enable the accused to know the accusation to which answer is required, (2) to furnish the court adequate basis for the entry of a proper judgment, and (3) to protect the accused from double jeopardy." State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (citing State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991); VanArsdall v. State, 919 S.W.2d 626, 630 (Tenn. Crim. App. 1995); State v. Smith, 612 S.W.2d 493, 497 (Tenn. Crim. App. 1980)).
“The power to seek a superseding indictment lies within the broad discretion of the State." State v. Harris, 33 S.W.3d 767, 771 (Tenn. 2000) (citation ...