Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 18, 2018
from the Circuit Court for Trousdale County No. 2017-CV-4661
John D. Wootten, Jr., Judge
Petitioner, Robert Earl Borner, appeals the dismissal of his
petition for writ of habeas corpus. He argues that the
indictment is void because it failed to state the essential
elements of the conviction offense. After a thorough review
of the record, the briefs of the parties, and the applicable
law, we affirm the judgment of the habeas corpus court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Earl Borner, Hartsville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; and
Leslie E. Price, Assistant Attorney General, for the
Appellee, State of Tennessee.
Everett Williams, J., delivered the opinion of the court, in
which Robert W. Wedemeyer and Camille R. McMullen, JJ.,
EVERETT WILLIAMS, JUDGE
AND PROCEDURAL HISTORY
2011, a McNairy County Circuit Court jury convicted the
Petitioner of the delivery of less than .5 grams of cocaine,
and the trial court imposed a sentence of eight years in the
Tennessee Department of Correction. See State v. Robert
Earl Borner, No. W2012-00473-CCA-R3-CD, 2013 WL 1644335,
at *1 (Tenn. Crim. App. Apr. 16, 2013). On October 10, 2017,
the Petitioner filed a petition for writ of habeas corpus,
alleging that the indictment is void because it charged him
with the delivery of ".5 grams or less" of cocaine
instead of "less than .5 grams of cocaine." On
October 20, 2017, the habeas corpus court summarily dismissed
the petition, noting that the Petitioner's claim had been
considered and rejected by this court on direct appeal and
that the indictment was not so defective as to deprive the
trial court of jurisdiction.
I, section 15 of the Tennessee Constitution guarantees the
right to seek habeas corpus relief. However, the grounds for
the writ are very narrow. Archer v. State, 851
S.W.2d 157, 162 (Tenn. 1993). Habeas corpus relief is
appropriate "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." Id. at 164 (citation omitted).
The writ may be used to correct judgments that are void,
rather than merely voidable. Taylor v. State, 995
S.W.2d 78, 83 (Tenn. 1999). A judgment is void when it
"is facially invalid because the court lacked
jurisdiction or authority to render the judgment or because
the defendant's sentence has expired." Id.
A voidable judgment "is one which is facially valid and
requires the introduction of proof beyond the face of the
record or the judgment to establish its invalidity."
Id. This court reviews the dismissal of a habeas
corpus petition de novo with no presumption of correctness
given to the conclusions of the habeas corpus court.
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007).
addition to his claim that the indictment was void, the
Petitioner raises a variety of issues in this appeal that he
did not raise in his original petition for writ of habeas
corpus. These issues are waived because the Petitioner has
raised them for the first time on appeal. See State v.
Howard, 504 S.W.3d 260, 277 (Tenn. 2016) ("It is
well-settled that a defendant may not advocate a different or
novel position on appeal."); State v. Johnson,
970 S.W.2d 500, 508 (Tenn. Crim. App. 1996) ("Issues
raised for the first time on appeal are considered
appellant contends that the indictment charged him with
delivering ".5 grams or less" of cocaine, did not
follow the statutory language, and did not provide adequate
notice of the offense charged. He maintains that the
indictment should have charged him with delivering "less
than .5 grams" of cocaine. He notes that Tennessee Code
Annotated section 39-17-417(a)(2), (c)(1), and (c)(2)
prohibits the delivery of cocaine in the amount of less than
.5 grams, which is a Class C felony, and in the amount of .5
grams or more, a Class B felony; he contends that the
indictment was confusing because it "suggest[ed]
culpability for both classes of sale/delivery ...