Richard Anthony v. Tony Parker, Warden ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
RICHARD ANTHONY v. TONY PARKER, WARDEN
Appeal from the Circuit Court for Lake County
No. 04-CR-8566 R. Lee Moore, Judge
No. W2002-02622-CCA-R3-HC - Filed December 10, 2004
This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by
opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner is appealing
the trial court's denial of habeas corpus relief. The Petitioner fails to assert a ground of relief
entitling him to habeas corpus relief. Accordingly, the State's motion is granted and the judgment
of the trial court is affirmed.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
ALAN E. GLENN , JJ., joined.
Richard Anthony, pro se.
Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General, for
the appellee, State of Tennessee.
MEMORANDUM OPINION
Petitioner was convicted of one count of robbery with a deadly weapon and two counts of
grand larceny by a Shelby County jury. See State v. George Pickle, No. 100, 1990 WL 154624, *1
(Tenn. Crim. App. at Jackson, Oct. 17, 1990), perm. to appeal denied, (Tenn. Dec. 31, 1990). The
Petitioner was sentenced to life imprisonment for the robbery conviction and to ten years on each
count of grand larceny. Id. The sentences were ordered to be served consecutively. Id. Petitioner
unsuccessfully sought post-conviction relief. See George Gary Pickle v. State, No. 02C01-9412-CR-
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00271, 1996 WL 275049, *1 (Tenn. Crim. App. at Jackson, May 24, 1996). On May 28, 2002,
Petitioner filed, pro se, an application for writ of habeas corpus relief. Counsel was subsequently
appointed and an amended application was filed, alleging that his judgment is void because the
indictments fail to allege facts and allegations sufficient to confer jurisdiction on the criminal court.
On October 10, 2002, a hearing was held, after which the trial court denied habeas corpus relief,
finding
From all of which this court finds Petitioner’s Allegations without merit and that
from the face of the indictments, judgments, and record of the proceedings the trial
Court had jurisdiction to sentence the Petitioner and that the Petitioner’s sentence of
imprisonment or restraint has not expired.
Habeas corpus relief addresses detentions that result from void judgments or expired
sentences. See Archer v. State, 851 S .W.2d 157, 164 (Tenn. 1993). The Petitioner in this case does
not argue that his sentence has expired; therefore, he is a candidate for habeas corpus relief only if
the judgment or sentence is void. The procedural requirements for habeas corpus relief are
mandatory and must be scrupulously followed.1 Archer, 851 S.W.2d at 165. The Petitioner has
failed to attach to his petition either the copies of the judgments of conviction or the indictments.
See Tenn. Code Ann. § 29-21-107(b)(2). An application for the issuance of habeas corpus may be
summarily dismissed for failure to attach the judgment forms. Id.; see also State ex rel. Wood v.
Johnson, 393 S.W.2d 135, 136 (Tenn. 1965). Moreover, on appeal, the Petitioner has the duty to
ensure that the record before this Court is sufficient to convey a “fair, accurate, and complete account
of what transpired.” Tenn. R. App. P. 24. In this regard, the Petitioner’s failure to provide this Court
with a complete record relevant to the issue presented for review constitutes a waiver of the issue.
See State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993). Notwithstanding, it is apparent that
copies of the indictment were introduced by appointed counsel at the hearing held on October 10,
2003.
Although in most instances a challenge to the sufficiency of an indictment is not a cognizable
claim in a habeas corpus proceeding, see Haggard v. State, 4 Tenn. Crim. App. 620, 475 S.W.2d
186, 187-88 (Tenn. Crim. App. 1971); Tenn. R. Crim. P. 12(b)(2) (stating that “[d]efenses and
objections based on defects in the indictment” must be raised prior to trial), the indictment may be
challenged if the objection is based on the failure of the indictment to state an offense. See State v.
Nixon, 977 S.W.2d 119 (Tenn. Crim. App. 1997); see also Willie Tom Ensley v. Howard Carlton,
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The location of Petitioner Pickle’s incarceration is not disclosed in the record before this Court. However,
this Court is able to take judicial notice of the fact that Petitioner Pickle is currently confined at the Turney Center
Industrial Prison and Farm located in Hickman County. See Tenn. R. Evid. 201(b). The present petition was filed in
Shelby County, Tennessee. Pursuant to section 29-21-105, Tennessee Code Annotated, a petition for writ of habeas
corpus must be filed in the court most convenient in point of distance to the applicant, unless a sufficient reason is
stated in the petition for not applying to such court. Petitioner has failed to offer explanation as to why the petition
was not filed in Hickman County. The petition could have been dismissed on this ground alone. However, as the
failure to file the petition in the proper court was not litigated at the trial level, we do not find this point dispositive
on appeal.
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Warden, No. E2002-00878-CCA-R3-PC, 2002 WL 31375581, *2 (Tenn. Crim. App. at Knoxville,
Oct. 21, 2002), perm. to appeal denied, (Tenn. Feb. 18, 2003). The rationale is that the resulting
conviction is void because there is no crime before the court. Willie Tom Ensley v. Howard Carlton,
Warden, No. E2002-00878-CCA-R3-PC, 2002 WL 31375581, at *2. Thus, if an invalid indictment
fails to properly charge an offense and, thereby, causes the convicting court to be without
jurisdiction, that indictment may be challenged in a habeas corpus proceeding. Willie Tom Ensley
v. Howard Carlton, Warden, No. E2002-00878-CCA-R3-PC, 2002 WL 31375581, at *2.
In reviewing the indictment, the trial court noted that the Petitioner’s challenge was based
upon the use of the following language:
... with intent feloniously to convert the same . . . to their own use and deprive the
true owner thereof.
Appointed counsel argued that the term “feloniously” is not a mental state. This language was
sufficient under the law as it existed at the time. See Campbell v. State, 491 S.W.2d 359, 361
(Tenn.1973) (an indictment using the words "feloniously" or "unlawfully" is sufficient).
Accordingly, the indictment sufficiently charged the Petitioner with a crime under Tennessee law
and Petitioner is not entitled to habeas corpus relief as to this claim.
Accordingly, it is ordered that the State’s motion is granted. The judgment of the trial court
is affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.
____________________________________
ALAN E. GLENN, JUDGE
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