### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs M arch 11, 2003
RANDALL C ARVER v. STA TE OF TENNESSEE Direct Appeal from the Criminal Court for Sumner County No. 732-2000 Jane W. Wheatcraft, Judge

No. M2002-02891-CCA-R3-CO - File M ay 16, 2003

On Februa

ry 9, 2002, th

e petitioner pled g

uilty to a ggra vated as sault and

attempte d especi ally aggravated

kidnapping and wa s sentenc ed, resp ectively , to conc urre nt six- and eig

ht-y ear sen

tences. On October 22, 2002, he filed a pro se “Petition for Writ of Error Coram Nobis and/or Writ of Habeas Corpus,” seeking relief because of newly discove

redevidenc e that, at the time of his pleas of guilty, the victim “wa s under numerous felony charges,” which “informa tion was flagrantly

kept from the defense,” and

because he pled g uilty to agg ravate d assault

which is not a lesser-included offense of attempt to commit first degree murder, for which he was indicted. Additionally, he arg ues on appeal that the post-conviction court erred in dismissing his petition without appointing counsel or conducting an evidentiary hearing. Following our revie w, we affirm the post-conviction court’s dismissal of the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which G ARY R. W ADE , P. J., and J OE G. R ILEY , J., joined. Randall Carver, Northwest Correctional Complex, Tiptonville, Tennessee, Pro Se.
Paul G. Summers, Attorney Gene ral and Reporter; Helena Walton Yarbrough, Assistant Attorney Genera l; and L awrenc e Ray

Whitley , Distric t Attorne

y General , for the appellee, State of Tennessee.
OPINION
FACTS
We first will

outline the

chronolo gy

of this mat

ter. Acc ording t

o the ame nded judg ments, the petitioner was indicted for attempt to comm it first degree murder and especially ag gravated ki dn ap pi ng , w hi ch we re am en de d, re sp ec ti ve ly, to agg ravate d assault , to which he pled guilty and rece ived a sent ence of

six years, and to att empt t o comm it esp ecial ly aggravate d kid nappi ng, t o which he pled g

uilty and r eceived a sentence of eig ht years. The se sentences were to be served-2-

concurr ently but consecutively to sente nc es im po se d b y th e C om mo nw ea lt h o f K en tu ck y. On October

22, 2002, the petitioner filed a pro se “Petition for Writ of Error Co ram Nobis and/or Wr it of Ha be as Co rp us ” w hi ch wa s d en ie d b y the po st-conviction court in a written order issued the same day. A s to the alleged newly discovered evidence which had bee n kept from him, the post-conviction court sta ted that th ere wa s “no aff

idavit or corroboration of this bold assertion” and that the remedy of

error c oram nobi s is only

for new evidenc e that re

lates to matters which were actually litiga

ted at trial, and, here , t he re wa s n o t ri al be ca us e t he de fe nd an t p le d g ui lt y. As to the petitioner’s argument that he was illegally

sentenced for the agg

ravated assault charge because

that crim e is not a lesser-included offense of attempted fir st degree murder, the post-conviction court reached the follo wing co nclusion:

Petitioner alleges [aggr

avated a ssault] is no t a

lesser included of

fense of Attem pted Mu rder wit h which the Petitione

r was ori ginally charged. While that allegation is true, it does not render the judgment void as thi s plea ba

rgain was negotia

ted between the De

fendant , his Counsel and the State of Tennessee and was acce pted at a submission hearing by

the Court. Accordingly , the post-conviction court dismissed the petition, and this appeal resulted.
ANALYSIS
The petit ioner seeks coram nobis “and/or” habeas corpus re lief. However, as we will explain, the petitioner has not set out viable claims pursuant to either of these avenues for relief.
A writ of error coram nobis is an extraordinary remedy by

which the trial court may provide relief from a judgment under narrow and limited circumstance s. Statev. Mixon , 983 S.W.2d 661, 666 (Tenn. 1999). Regarding the writ, Tennessee Code Annotatedsection 4 0-26-105 provides , in pertine nt part: Upon a showing by the defe ndant tha t the def endant w as without

fault in failing to present

certain evidence at the proper time, a w rit of error coram no bis will lie for subsequently or new ly discovered e vidence relating to matters which were l itigat ed at t he tri al if t he jud ge determines that such evidence may have resulted in a different judgment, had it been presented at the trial. The issue shall be tried by the court without the intervention of a jury, and if the decision be in favor of t

he pe titioner, the judgment complained of shall be set aside and the de

fendant shall be g

ranted a new tria l in that cause. . .

.-3-

Likewise, the reme dy p

rovided b y a

writ of ha

beas cor pus is limited in scope and may only be invoked where the judgment is void or the petitioner’s term of imprisonment has expired. State v. Ritchie , 20 S.W.3d 62

4, 629 (Te nn. 2000) ; State v. Davenport , 980 S.W.2d 407, 409 ( Tenn. Cri m. App. 1998); Passarella v. State , 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994)

. A void, as opposed to a voidable, judgment has been defined by our supreme court as “one in w hich the judg ment is faciall y invalid because the court did no t ha ve the statutory authority to render such judgment.” Dykes v. Compton , 978 S.W.2d 528, 529 (Ten n. 1998); see also Tay

lor v. Stat e , 995 S.W.2d 78, 83 (Tenn. 1999). The judgment of a cou rt of general jurisdiction is conclusive and presumed to be valid, and such a jud

gment c an only

be impea

ched if t h e record af

firmatively shows that the rendering court wa s without personal or subject matter jurisdiction. Archer v. State , 851 S.W.2d 157, 162 (Tenn. 1993) ; Passarella , 891 S.W.2d at 626 . Thus, habeas c orpus relief is av ailable o nly when “‘it appears upon the face of the judgment or the record of the proce edings upon which the judgmen tis rendered’ that a convicting court wa s without jurisdiction or authority to sentence a defenda nt, or that a defendant’s sentence of imprisonment . . . has expired.” Archer , 851 S.W.2d at 164 (citatio n omitted) . To obtain habeas corpus relief, the petitioner must show by a preponderance of the ev idence that his sentence is void and not merely voidable. See Davenport , 980 S .W.2d a t 409; Passarella , 891 S.W.2d at 627. Conse quently , a petitio ner can not colla terally attack a faciall y valid judgment

of the tri al court

in a petition for habeas corpus relief. Archer , 851 S.W.2d at 162.
In the petition which is the basis for this appeal, the petitioner challen ges only

the conviction for aggravated assa

ult. The judgmen

t o f conviction for this offense shows that the petitioner was indicted for attempt to commit murder first degree and that the charge was amended to a ggravated assault, the offe

nse to which he pled guilty. I t was the petitioner’s right to agree to amendment of the indictment, see

Tenn. R. Crim. P. 7(b), and to enter a plea of guilty to the amended

offense of aggr avated a ssault. The amendment of the indictment being apparent on the face of the judgment precludes the petitioner’s claim that the conviction is void because agg ravated assault isnot a

lesserincluded offense of attempt to commit firs t degree murder. See Charles K . Hunter v. Ricky Bell, Warden , No. 01C01-9807-CR-00316, 1999 WL 482405, at *1 (Tenn. Crim. App. July 9, 1999) (a judgment reflecting an ag reed amendment of attempt to commit first degree murde r to aggravated assault is facially va

lid and, thus, not the subject of habeas corpus relief).
In a related claim, the petitioner conte nds that his guilty plea is voidable bec ause it was entered unknowingly, mea

ning that he pleaded guilty to aggravated assault for which he w as not indicted and whic h was not a lesser-included offense of attempted first degree murder. How ever, since the judg ment of c onviction shows tha

t the petit ioner ple d guilty

to the ame

nded charge of aggravated assa

ult, his plea of guilty is neither void nor voida ble.
Ad di ti on al ly, the petitioner contends that “the Prosecution, the Sentencing Court, and other Officers of the

Court were all aware that the State[’]s Chief Witness and/or the alleged victim had major fe l onies pending before the same Sumner County Court and failed to make this Defendant aware o f same.” The post-conviction court denied this claim because the petitioner offered n o affida vit or corr oboratio n of the e

vidence that he c laims was withheld, and “[m]att e rs inv olving newly discover ed evide nce rel ate only

to matter s w hich wer

e li tigated at trial.” This denial is the-4-

basis for the petitioner’s claim that the post-conviction court erred in dismissing the petition without appointing counsel and affording a hearing on the petition.
There are severa

l problemswith the pe

titioner’ s attempti ng to fit his claim into the narrow slots afforded by

coram nobis and habeas corpus relief that the se ntencing court an d the State with heldfro m him the fact that “the alleged victim had major felonies pe nding.” Although the petitio nerargue s in his appeal that this evidence likely w ould have changed the outcome of the procee dings, he does not advance a theory whereby pending criminal chargesagains t the victi m would have been admissible if he had gone to trial. The general rule is that the subsequent discover y of impeach ment evid ence, a s this would

have be en at bes t, willnot entitle a petitioner to coram nobis relief: “When it a

ppears t hat the ne

wly discover ed evidence can hav e no other effec t than to ‘discre dit the testim

ony of a witne ss at the o

rigina l trial, contrad

ict a witn ess’ statements or impeach a witness, ’ the t rial cou

rt should n ot order

a new tri al ‘unle ss the test imony of the wit

ness who i s sought to be impeached was so important to the issue, and the evidenceimpeach ing the witness so strong and convincing t

hat a dif ferent result at trial would necessarily follow.’” State v. Ca

ldwell , 977 S.W.2d 110, 117 (Tenn. Crim. App. 1997) (qu otin g State v. Rogers , 703 S.W.2d 166, 169 (Tenn. Crim. App. 19 85)). Whi le the importance of the victim’s testimony is obvious, that of unrelat ed pending felon

y charge s again st the vict im is not.
Ad ditionally , the petiti oner fa ces the h urdle tha t he pled g

uilty to the cha

rges a gainst h im, and, “in order for a writ [of error cora m nobis] to issue, [he] would have to present newly discover ed evidence which would show that his plea was not voluntarily or knowingly entered.” Newsome v. State , 995 S.W.2d 12 9, 134 (Te nn. Crim. A

pp. 1998) . The pet

itioner’ s claim tha

t his plea of

guilty was involuntary is grounded upon the claim that he unknowingly pled g uilty to a charg e which was nota less er-in clude d offen se of t he ind icted charge

. Howeve r, as we have de termined , that cla

im is wi th ou t m er it . A cc or di ng ly, we conclude that the newly discovered claims set

out in the petition likewi se are nota basis for relief. The petitioner also has arg ued that the post-conviction court should have appointed counsel to represent him. However, appointment of counsel is discretionary in a habeas corpus case. SeeTenn. Code Ann. § 40-14-204. Unlike in McLa ney v. Bell , 59 S.W.3d 90, 94 (Tenn. 2001), in which our supreme court determined that the post-conviction court erred by notappointing counsel who would h ave assi s ted in ascertaining whether cer tain of a petitioner’s offenses were committed while he was on bail, the record in this matter is sufficie nt to show that the petitioner’s claims do not entitle him to reli ef. Acc ordingl y, t he post-c onviction

court did not abuse its discretion in dismissing the petition. SeeTenn. Code Ann. § 40-26-1 05; State v. Hart , 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995).
CONCLUSION
Based upon the foregoingauthorities and reasoning, we affirm the post-c onviction court’s denial of the petition.

___________________________________ ALAN E. GL

ENN, JUDGE