Kenneth Robert Daniels v. Howard Carlton, Warden

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 19, 2003

KENNETH ROBERT DANIELS v. HOWARD CARLTON, WARDEN

Appeal from the Circuit Court for Johnson County

No. 4133 Lynn Brown, Judge

No. E2003-01063-CCA-R3-PC

December 19, 2003

The petitioner, Kenneth Robert Daniels, appeals as of right the Johnson County Circuit Court’s

dismissal of his petition for habeas corpus relief. In this pro se appeal, the petitioner contends that

he should be granted habeas corpus relief because his judgment of conviction for especially

aggravated robbery is void. The state contends that the trial court properly dismissed the petition

for failure to state a claim. We affirm the trial court’s dismissal of the petition.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

ALAN E. GLENN, JJ., joined.

Kenneth Robert Daniels, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General, for

the appellee, State of Tennessee.

OPINION

On January 15, 1993, the petitioner pled guilty to second degree murder and especially

aggravated robbery, both Class A felonies. The Knox County Criminal Court sentenced the

petitioner to twenty-five years for second degree murder and fifteen years for especially aggravated

robbery to be served consecutively in the Department of Correction. This court affirmed the denial

of the petitioner’s first petition for habeas corpus relief in March 1996 when the petitioner

challenged his conviction for both second degree murder and especially aggravated robbery,

contending that he did not fully understand the agreement when he pled guilty and that his due

process rights were violated. Kenneth Robert Daniels v. State, No. 03C01-9606-CC-00244, Johnson

County (Tenn. Crim. App. Feb. 27, 1997). In January 2003, the petitioner filed a second petition for

habeas corpus relief. The gist of the petitioner’s claim is that his sentence for especially aggravated

robbery is void because the charge of especially aggravated robbery was never presented to the grand

jury and he never consented to the state’s amendment of the indictment to include this charge. The

trial court summarily dismissed the petition.

The trial court may summarily dismiss a petition for writ of habeas corpus relief when the

petitioner does not state a cognizable claim. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim.

App. 1994). A petition for the writ of habeas corpus may only be brought if the judgment is void

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

claimed illegality renders the judgment or sentence voidable, rather than void, no relief can be

granted. Id. at 161. “If the face of the record shows that the court did not have jurisdiction, then the

judgment is void.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). Thus, we examine the

record on its face to determine whether it is void. Here, the petitioner pled guilty to the charges of

felony murder and especially aggravated robbery. The petitioner asserts that he had no knowledge

of the added count of especially aggravated robbery when he pled guilty in 1993 and that he never

consented to an amendment of the indictment. However, the petitioner acknowledges that the

indictment was, in fact, amended. In this respect, the record before us does not reflect that the

judgment, on its face, is void. As the state asserts, taking the petitioner’s allegations as true, the

judgment of conviction at issue would be considered voidable, not void as required for habeas corpus

relief. Therefore, the trial court correctly concluded that the petitioner’s allegations failed to state

a claim for relief.

Based on the foregoing and the record as a whole, the judgment of the trial court is affirmed.

___________________________________

JOSEPH M. TIPTON, JUDGE

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