The opinion
FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
December 23, 1997
NOVEMBER 1997 SESSION
Cecil Crowson, Jr.
Appellate C ourt Clerk
JERRY COX, )
)
Appellant, ) C.C.A. No. 03C01-9610-CR-00392
)
vs. ) Johnson County
)
HOWARD CARLTON, WARDEN, )
and STATE OF TENNESSEE, ) Honorable Lynn W. Brown, Judge
)
Appellee. ) (Habeas Corpus)
)
FOR THE APPELLANT: FOR THE APPELLEE:
JERRY COX JOHN KNOX WALKUP
Pro Se Attorney General & Reporter
Northeastern Correctional Center
P.O. Box 5000 MICHAEL J. FAHEY, II
Mountain City, TN 37683 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
DAVID E. CROCKETT
District Attorney General
Rt. 199, Box 99
Johnson City, TN 37601
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT
JUDGE
OPINION
The petitioner, Jerry Cox, currently incarcerated in the Department of
Correction serving a twenty year sentence for a conviction of attempted aggravated
rape and aggravated rape,1 appeals the Johnson County Circuit Court's denial of
his Petition for the Writ of Habeas Corpus. In his petition, Cox alleged the trial court
lacked jurisdiction to convict him because the indictment failed to allege a culpable
mental state. The lower court found that the matter should have been raised at an
earlier stage of the proceedings, and further, the law under which the petitioner was
convicted did not require proof of a culpable mental state. Accordingly, the lower
court summarily dismissed the petition. It is from this determination the petitioner
appeals, claiming the court erred by dismissing his petition without appointing
counsel, allowing amendment and conducting a hearing, and likewise by failing to
treat his petition in the alternative as one for post-conviction relief. On review, we
affirm the trial court's dismissal.
I
First, Cox claims the trial court erred in dismissing his petition without
an evidentiary hearing, appointment of counsel, or an opportunity to amend. Cox
misunderstands the procedural scheme for issuance of the writ of habeas corpus.
To obtain habeas corpus relief in this state, the petitioner must submit an
application to the proper court. See Tenn. Code Ann. §§ 29-21-101, -105, -107
(1980). The court must then review the petition and must dismiss it and refuse to
issue the writ unless it indicates the petitioner's conviction may be void. See Tenn.
Code Ann. § 29-21-101, -109 (1980). If the writ is refused based on the failure of
the petition to raise a cognizable claim for relief, any need for a hearing is obviously
pretermitted because there is no justiciable issue before the court. See State ex rel.
Byrd v. Bomar, 214 Tenn. 476, 381 S.W.2d 280 (1963). Moreover, there is no
requirement in the Habeas Corpus Act that a petitioner be afforded appointed
1
The record before us does not contain any information about the
underlying convictions, save the allegations of the petition, which we have taken
as true for purposes of this appeal.
2
counsel or the opportunity to amend the petition. See generally Tenn. Code Ann.
§§ 29-21-101 to -130 (1980 and Supp. 1996). Thus, the trial court did not err simply
because it did not allow a hearing, appointment of counsel and an opportunity for
amendment of the petition.
Turning to the issue of whether the trial court correctly dismissed the
petition, we hold that the trial court’s ruling is supported by several bases. First, it
is well established challenges to the sufficiency of an indictment are not properly
raised in habeas corpus proceedings. See, e.g., Haggard v. State, 4 Tenn. Crim.
App. 620, 623-24, 475 S.W.2d 186, 187-88 (Tenn. Crim App. 1971); Brown v. State,
1 Tenn. Crim. App. 462, 473, 445 S.W.2d 669, 674 (Tenn. Crim. App. 1969). The
lower court implicity found as much by determining Cox should have raised his claim
at an earlier stage. Cox's attack against the indictment is not cognizable in a
habeas corpus proceeding.
Second, the meager record in this case does not set forth the full
indictment containing all the counts with which the defendant was charged. It is the
appellant’s duty to ensure that the record on appeal contains all of the evidence
relevant to those issues which are the bases of appeal. Tenn. R. App. P. 24(b);
State v. Banes, 874 S.W.2 73, 82 (Tenn. Crim. App. 1993); State v. Deborah
Gladish, No. 02C01-9404-CC-00070 (Tenn. Crim. App., Jackson, November 21,
1995), perm. app. denied (May 6, 1996). In the absence of such a record, the
affected issues are waived. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App.
1991). “In the absence of an adequate record on appeal, this court must presume
that the trial court’s rulings were supported by sufficient evidence.” Id.
Third, as meager as the record is, it does reflect that the defendant’s
conviction was the result of a guilty plea. This court has previously held, in a post-
conviction context, that the defendant who pleaded guilty may not attack the
indictment. Ronald Collier v. State, No. 02C01-9608-CC-00284 (Tenn. Crim. App.,
3
Jackson, April 7, 1997), perm. app. denied (Tenn. 1997).
A plea that is entered voluntarily, understandingly and intelligently
constitutes a waiver of all procedural and constitutional defects in the
proceedings that may have occurred prior to the entry of the plea . .
. . Thus, the petitioner has waived this issue and he cannot now
complain that the indictment was defective.
Ronald Collier, slip op. at 3. See also State v. Preston Carter, No. 02C01-9601-CR-
00002, slip op. at 9 (Tenn. Crim. App., Jackson, May 2,, 1997) (applying the guilty-
plea waiver rule to defects in an indictment). Accordingly, the defendant in the
present case has waived the claim he now makes.
Fourth, noting that the defendant bases his claims upon holdings of
this court in State v. Roger Dale Hill, No. 01C01-9508-CC-000267 (Tenn. Crim.
App., Nashville, June 20, 1996), perm. app. granted (Tenn., Jan. 6, 1997), and
Nathaniel White v. State, No. 03C01-9408-CR-00277 (Tenn. Crim. App., Knoxville,
June 7, 1995), we find, apart from the fact that Roger Dale Hill was reversed, see
State v. Roger Dale Hill, Sr., ---S.W.2d---, No. 01S01-9701-CC-00005 (Tenn. Nov.
3, 1997), that both Roger Dale Hill and Nathaniel White were cases that turned
upon the language of the 1989 revisions to the criminal code, specifically
Tennessee Code Annotated section 39-11-301(b), a provision that was not
contained in the code prior to 1989. See Tenn. Code Ann. § 39-11-301(b) (1997).
The defendant was convicted in 1987. The rationale employed in Roger Dale Hill
and Nathaniel White is not available to the defendant in this case. Curtis Newbern
v. State, No. 02C01-9702-CR-00071, slip op. at 2 (Tenn. Crim. App., Jackson, July
1, 1997) (Tenn. R. Ct. Crim. App. 20 Order). Also, in Roger Dale Hill and Nathaniel
White, the indictment challenges were made on direct appeal, not in a habeas
corpus proceeding. Accordingly, Hill and White are not controlling.2 See Curtis
Newbern, slip op. at 2.
2
In his brief, Cox argues Roger Dale Hill is applicable to cases arising
under the criminal law as it existed prior to the 1989 revisions to the Code
because Hill says, "These concepts are not new in Tennessee." That statement
from Hill, however, is found in the court's discussion of the necessity of an
indictment which alleges all the essential elements of the offense charged and
the necessity of a lawful indictment as a prerequisite to prosecution. Roger Dale
Hill, slip op. at 7. As such, we are unpersuaded.
4
Accordingly, we find the trial court correctly dismissed the petition.
II
Cox also argues the trial court should have treated his petition as one
for post-conviction relief. He fails to address, however, the statutory bar to such an
action. According to his allegations, he pleaded guilty and received his sentence
on March 9, 1987. He does not allege his case was appealed. As such, his three
year statute of limitations has long since expired. See Tenn. Code Ann. § 40-30-
102 (repealed 1995). Further, he states no basis for allowing untimely consideration
of a post-conviction claim. Additionally, Cox was convicted in Sullivan County. His
petition was filed in Johnson County, the proper venue for habeas corpus relief but
not post-conviction relief. Compare Tenn. Code Ann. § 40-30-204(a) (1997) (post-
conviction petition shall be filed in court where conviction occurred) with Tenn. Code
Ann. § 29-21-105 (1980) (petition for writ of habeas corpus shall be filed in court
"most convenient in point of distance" to the petitioner unless a sufficient reason is
given in the petition). The lower court did not err in failing to consider the petition
as one for post-conviction relief.
The judgment of the trial court is affirmed.
_________________________________
CURWOOD WITT, JUDGE
CONCUR:
_______________________________
JOSEPH B. JONES, PRESIDING JUDGE
_______________________________
PAUL G. SUMMERS, JUDGE
5
6