1 For a more detai led reci tati on of th e fact s underl ying the petiti oner’s convictions, see State v. Richard Lynn

Norton , No. 319, 199 0 W L 9561 4, at **1- 2 (Tenn. Crim. App . at Knoxville, July 12, 1990). 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs D ecem

ber 11, 200 2
RICHARD LYNN NORTON v. STAT E OF TENNESSEE
Direct Appeal from the Criminal Court for Davidson County

No. 3223 Seth Norman, Judge

No. M2002-00789-CCA-R3-CO - Filed June 24, 2003

The petitioner, Richard Ly nn Norton, was conv

icted in 1 989 of ag grava

ted assa ult and as sault. He received an effective sentence of

ten year s incarceration in the Tennessee Depa rtment of Correction. Su bs eq ue nt ly, the petitioner filed for habeas corpus relief, contending that the indictment charging him with aggravated assault wa s defective and theref ore his conviction for aggra vated assault is void. The trial court denied the petition for habeas corpus relief andthe petitioner

appealed to this court. Upon review of the record and the pa rties’ briefs, we affirm the judgment of the trial court. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cr

iminal Court is Affirm

ed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID G. H AYES and J OHN E VERE TT W IL LI AMS , JJ., joined. Richard Ly

nn Norton, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; Victor S. (Torry)Johnson , III, District Attorney Gene ral; and Jon Seaborg, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION

I. Fact ual Backgro

und On May 18, 1989, a

Greene County jury found the petitioner g uilty of the

aggravated assault of Offic er Jack Ke

ll ey and th e assault of Officer Sam Greene. 1 The trial court imposed a sentence of ten yea

rs incarceration for the ag gravated assault conviction and a concurrent sentence of eleven m

onths and t

wenty -nine da

ys f or the as sault con

victi on. I n his brief on appeal, the petitioner stated that his ten yea r sentence “expired in June of 1996.”2 Th e trial co urt cor rectly ad mon ished the pe titioner fo r failing to inc lude the jud gme nts of co nviction with his

origi nal petit

ion for habeas corpus reli ef

as req uired by T enne ssee C ode Anno tated se ction 2 9-21 -107 (b)(2 ). W e note that a tri al court

may dismiss a petitio n for failure to co mply with this req uirem ent. See Stat e ex r el. Wood v. Johns on 393 S.W .2d 135, 136 (Tenn. 1965 ).

3 The petit ioner al so rais es addit ional iss ues on appeal whi ch were not rais ed in the t

rial court, and therefore will not b e con sidere d by this c ourt.
-2-

On Februa

ry 22, 2002, t

he petitio ner file d in the Davidson County Criminal Court a Petition for a Writ of Habeas Corpus, alleging tha t the indictment charging him wi th aggravate d assault “do es not charge, the offenses of aggravated assa

ult, in that it does not assert the essential element of bodily injury or serious bodily

injury .” Acco

rdingly , the petitioner a sserts , “the j udgmen t, sentence, and v[e]rd

ict are v oid on its face.”

The petit ioner co ntends tha

t the alle ged voi d conviction
w as used to enhance a sentence imposed on a subseque nt conviction for which he remain s incarcerated.

The trial cou rt, withouta hearing and without the appointment of counsel, denied the petit ioner habeas corpu s reli ef, ex plain ing:

[t]he petitioner alleges that the indictmen

t does not c

harge the offe nse of aggr avated a ssault, the conviction and sentence of which we must as sumethe petitioner is serving, since no copy of the underlyin g judgment was attached to the petition, in accordance with [Tennessee Code Annot ated section] 29-21-107(2). This is not a remedy afforded by means of ha

beas corpus. The petition is hereby denied. 2

As a result of the trial court’s order, the petitioner attempted to amend his habeas corpus petition to

include t he judg ments underly

ing his c onviction s. Howev er, the r ecord be fore this court does not reflect that the “amendment” was eve r received or considered by the trial court. On appeal, the petitioner argues that “[t]he languag e of the indictment in counts (1) and (2) d oes not sufficiently cha

rge the offense of ag gravated assault.” 3 II. Analysis The determination of whether to grant habea s corpus relief is a question of law. McLaney v. Bell , 59 S.W.3d 90, 92 (Tenn . 2001). A s such, we will review the tr ial co urt’s findi ngs de novo without a presumption of corre ctness. Id. Moreove r, it is the

petitione r’s burd en to demonstrate, by a preponde rance of the evidence, “that the sente nce is void or that the confinement is illegal.” Wya

tt v. State , 24 S.W.3d 319, 322 (Tenn. 2000).

Article I, section 15 of the Tennessee Constitution guarantees an accused the rig ht to seek hab eas cor

pus r e lief. See Tay

lor v. Stat

e , 995 S.W.2d 78, 83 (Tenn. 1999). However, “[s]uch relief is availab le only when it appea rs from the face of the judgment or the r ecord of the procee dings that

a trial court was without jurisdiction to sentence a defendant or that a defendant’s sentence of imprisonment or other restraint has expired.” Wya tt , 24 S.W.3d at 322; see also Tenn. Code Ann. § 29-21-101 (2000). In other words, habeas corpus relief may be sought only whe

n the-3-

judgment is void, not merely voidable. Taylor , 995 S.W.2d at 83. “A vo id judgment ‘ is one in which the judgment

is facially invalid bec ause the court lacked jurisdiction or authority to render the judgment or because the de fendant ’s s entence has expired.’ We have recog nized that a sentence imposed in direct contravention o f a statute, for example, is void and illegal.” Stephenson v. Carlton , 28 S.W.3d 910, 911 (Tenn. 2000) (citations omitted). Moreover, we note that “[w]ithout question, the proc edural p rovisionsof the ha

beas cor pus statute s are mandatory and must be followed scrupulously.” Archer v. State , 851 S.W.2d 157, 165 (Tenn. 1993).

In Wya tt , 24 S.W.3d at 322-23 (citations omitted), our supreme court stated: Ge ne ra ll y, defenses and objections based on a defect i ve indictment must be raised prior to trial or they are waived. However, as we have previous ly

stated, “[a] valid indictment is an essential jurisdictional element, without which t here can be no prosecution.” Thus, an indictmentthat is so defective as to fail to v est jurisdiction in the trial court may be cha

llenged at any stage of the pr

oceedings, incl

uding in a habeas corpus petition. Ac co rd in gl y, i f the indictments charging the petitioner were fatally def

ective, this issue could be raised in a habea s corpus p etition. Re gardle ss, the pe titioner’ s complain

t is without m

erit.

The petiti on er maintains that the indictments were fatally flawed because they

did not allege that he c aused se

rious bodi ly in

jury . Howeve

r, the sta tutein effe ct at the t

ime of the offense providedthat a n accus ed cou ld be gu ilty of aggr avat ed assault in a variety of ways. Count one of the indictmen

t again st the petitioner charged that the petitioner “unlawfully assault[ed] officer Jack Kelley , while dis play

ing a de adly

weapon, to-wit: a pistol contrary to [Tennessee Code Annotated section] 39-2-101(b)(3).” Count two char ged the petitione

r with the exact same

offense agains t officer Sam Greene. Tennessee Code Annotated section 39-2-101(b)(3) (1987) provided: (b) A person

is guilty of the offense

of agg ravate d assault , rega

rdless of whether the victim is an adult, a child, or theassailant’s spouse, if such person:

. . . . (3) Assaults ano ther wh ile displaying a de adly wea pon or while the victim knows such person has a deadly weapon in his possession. Thus, the indictments charging the petitioner corr ectly cha rged the appe llant with

aggr avated a ssault. This issue is without merit.
III. Conclusion

Based upon the foregoing , we affirm the judgment of the trial court.

___________________________________ NORMA McGEE OGLE, JUDGE