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Borner v. State

Court of Criminal Appeals of Tennessee, Nashville

May 21, 2018

ROBERT EARL BORNER
v.
STATE OF TENNESSEE

          Assigned on Briefs April 18, 2018

          Appeal from the Circuit Court for Trousdale County No. 2017-CV-4661 John D. Wootten, Jr., Judge

         The 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Robert 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.

          John Everett Williams, J., delivered the opinion of the court, in which Robert W. Wedemeyer and Camille R. McMullen, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         FACTS AND PROCEDURAL HISTORY

         In 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.

         ANALYSIS

         Article 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).

         In 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 waived.").

         The 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 ...


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