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### IN THE COURT OF

CRIMINAL AP

PEALS OF TENNESSEE AT NASHVILLE Assigned on Brief s June 17,

2003 JOE CLARK MITCHEL L v. STATE OF TEN NESSEE Direct Appeal from

the Circuit Court for Wayne County No. 12823 Robert

L. Jones , Judge

No. M2002-03011-CCA-R3-CO - Filed Septem ber 30, 2003

Petitioner filed a p etition for writ of habeas corpus alleging that the indictments against him were fatally defective and that this Court’s reduction of one of his convictions for agg ravated rape to rape violated the constitutional prohibition against double jeopardy . The trial court dismissed the petition withoutan evidentiary

hearing. Following

a review of the record in this matter, we a ffirm the order of the trial court’s dismissing the petition for writ of habeas corpus. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed
J ERRY L. S MIT H , J., delivered the opinion of the court, in which J OHN E VERE TT W ILLIAMS and R OBER T W. W EDEMEYER , JJ., joined. Joe Clark Mitchell, Clifton, Tennessee, pro se , for the petitione r, Joe Clar

k Mitchell

. Paul G. Summers, Attorney Gene ral and Reporter; Christine Lapps, Assistant Attorney Gene

ral; and T. Michael Bottoms, District Attorney General; for the appellee, State of Tenne ssee. Opinion
In 1986, Petitioner was convicted of two count s of aggravated a ssault, two counts of armed ro bb er y, two counts of aggravated kidna pping, one count of arson, one count of first degree burglary and two counts of

aggr avated r ape. All of Petitioner’s convictions arose out of one criminal spree in which he terrorized two women for a number of hours. State v. Joe Cl ark Mitch ell , No. 87-152- III, 1988 WL 32362, *1 (Tenn. Crim. App., Nashville, April 7, 1988), perm. to appeal denied (Tenn. 1988). The tria

l judged ordere d Petit

ione r’s four life sentences for both counts of ag gravated kidnapping and both coun ts of ag grava

ted rape to run con secutive

ly a nd allother sentences to run concurr ently with the f

our life s entence s.2

On appeal, this Court summarized the facts leading up to Petitioner’s convictions as follow s: One of the victims testified that as she was leaving her friend’s house, a man started towards her across the lawn. He hit her severa l times with a large stick, and he was armedwith agu n and a hunting knife. He forced both women into the house , and u sed duct tape to tape their ankles, arms, mouths, and ey es. He stole their jewelry and ransacked the house. He used a knife to cut the clothes off the testify ing witne ss and raped her. Then he set fire to the house. He carried both women to a car, drove around f or several hours, stopping at one point to rape the witness one more t ime

. He eventually aba

ndoned the car and t he women, and they were able to free themselves and walk for help. Mitchell , 1988 WL 32362, at *1. Following our review, this Court affirmed the trial court’s judgments as to all counts except for Petitioner’s conviction for aggrava ted rape under count two of indictment No. M2322. Id. We concluded

that the evidence was insufficient to show that the second rape in t he victim ’s car was accomplishedwith the us e of either Petitioner’s gun or his hunting knife. Id. However, the evidence was sufficie

nt to susta

in Petition er’s conviction for simple rape as a lesser include d offense of aggravated

rape. Id. Accordi ngly, this Court reduc ed Petitioner’s conviction for count two of indictmentNo. M2322 to rape and sentenc ed Petition

er as a Range II multiple offender to thirteen yearsimprisonment. Id. . W e order ed Peti tioner’ssentenc e for ra pe to be se

rved con secutive

to Petitioner’s remaining three life sentences. Id. In hispetition for writ of habeas corpus, Petitioner first alleged tha this indictments for the offenses of armed robbery , aggravated kidnapping and aggravated ra

pe were fatally

defective in that eachi ndict me nt fa il ed to se t f or th th e m at er ia l e le me nt s o f t he un de rl yin g o ff en se . S pe ci fi ca ll y, Petitioner argues that eac

h indictme

nt alleg ed that a

deadly weapon, “to wit: a

knife”, was used

to accompl ish the crimes when the proof a t tri al showe d that Petit

ioner use d a handg

un, or pist

ol, during the commission of the offenses. Because of this vari anc e, Petitioner contends that he was unable to prepar e a defe nse ag ainst the c

harge d offens es. Petitioner also asserted

in his petit

ion that thi s Court’s r

eduction of the se cond rap e offen se from aggr avated r ape to simp le rape violated the co ns ti tu ti on al pr oh ib it io n a ga in st do ub le je op ar dy. Petiti onera rgues t

hat by convicti ng Petiti oner of t he gre ater ch arge, the jury acquitte d him of all lesser- in clude d offense s of agg ravate d rape. Petitioner

submits tha

t when thisCourt found him innocent of aggravated ra

pe on appeal, we lacked

jurisdiction to reduce his sentence to simple rape.
In its respon se to Petitioner’s petition, the State argued that Petitioner had failed to show that the indi ctmen ts wer e facia lly void . Alt hough the indic tments listed only the use of a knife during the commission of the offenses, the proof at trial clearly showed that Petitioner was armedwith both a knife and a

gun. Because Petitioner had not stated a c laim for which relief could be granted, the Statemoved the trial court to d ismiss the p etition. F

ollowing its review, the trial court granted the3

State’s motion and di smissed Pe titioner’ s petition f

or writ of habeas c orpus. We note at the outset that the grounds upon which a writ of habea s corpus may be issued a re very narrow. McLaney

v. Bell , 59 S.W.3d 90, 92 (Tenn. 2 001). A w rit of habea s corpus i s availa ble only when it appears from the face of the judgment or rec ord that either the convicting court was withoutjurisdiction to convict or sentence the petitioner, or the petitioner ’s sentence has expired. Wya tt v. State , 24 S.W.3d 319, 322 ( Tenn. 200 0); see also Tenn. Code Ann. § 39-21-101. In other words, habeas corpus relief may only be sought whe

n the judgment is void, not merely voidable

. Taylor v. State , 995 S.W.2d 78, 83 (Tenn. 1999). “[W]here the allegations in a petition for writ of habeas corpus do

not demons trate

that the judgment is void, a trial court may correctly dismiss the petition without a hearing.” McLaney , 59 S.W.3d at 93. The determination of whether to grant habe as corpu s relief is a question of law. Id . at 92. Accordi ngly , this Court r eviews th e trial c ourt’s findings de novo without a presumption of correctness. Id.; Har

t v. State , 21 S.W.3d 901, 903 (Tenn. 2000). The petitioner has the burden of showing that the judgment is void by a preponderance of the evidenc e. Wya tt , 24 S.W.3d at 322.
Becau se a valid indictment is an essential jurisdictional element of a prosecution, “an indictmentthat

is so defective as to fail to vest jurisdiction in the trial court may be challenged

at any stage of the proceedings, including in a habe as corpus petition. Wya tt , 24 S.W.3d at 323 (citations omitted). Petitioner

relies on the supreme court’s holding in State v. Ladd , 32 Tenn. (2 Swan) 226 (1852) to support

his argument tha

t a designation of

a specif ic weap on inthe indictment renders the indictmentfatally def

ective if the proof at trial shows that an entirely different type

of weapon was used to commit the crime. A better illustration of Petitioner’s ar gument, perhaps , may

be found in State v. Brooks , 462 S.W.2d 491 (Tenn. 1970). The indictment at issue in Brooks refer enced th e use of a pistol during the robbery , but the evidence at trial showed that the defendant actually used a

.22 caliber rifle. In determining

that this variance rendered the indictment defective, the court espoused the common law rule requiring strict conformity between each allega

tion in the indictment and the proof at trial. Id . at 494. Since that time, however, “the old common law rule has been relaxed . . . so that substance rather than form is now determi native of such questions.” State v. M oss , 662 S.W.2d 590, 592 (Tenn. 1984). Before a variance between the indictment and the proof will be considered fatal, such variancemust be bot

h materia l and pre ju dicial. Id. An indictm ent will g enerally b e valid “ if it provides sufficient inform ation (1) to enable the accused to know the acc usation to which answer is require d, (2) to f

urnish the

court ad equate b asis for t

he entry of a prop er judg ment and ( 3) to prote ct the accused from double jeopardy .” State v. H ill , 954 S.W.2d 725, 727 (Te nn. 1997 ) (citations omitted). The form of the indictment is also governed by statute. As in effect at the time of Petitioner’s offenses , “[t]he indic tment must s tate the f acts con stituting

the offe nse in ord

inary and conc ise language, without prolixity or repe tition, i n such a manner as to enable a person of c ommon understanding to know what is intended . . . .” Tenn. Code Ann. § 40-13-302 ( 1982 Supp.).4

The indictments against Petitioner track ed the statutory lang uage of the offenses of a

rmed ro bb er y, aggravated kidnapping and aggravated

robbery in e

ffect at the time of the crimes. See Tenn. Code Ann. §§ 39 -2-501( a); –301( a)(2)(D); and - 603(a)( 1) (Supp. 1982). I t w as su fficien

t to state the offense charged in the wor ds of the statute or

the equivalent of the statutory words. State v. Ta te , 912 S.W.2d 785, 7 89 (Tenn . Crim. App . 1995). A lthough t he indict ments all eged that Petitioner committed each of the off enses with a knife, one of the victims testified at trial that Petitioner approached her carry

ing a bigstick in hisright ha nd, a gu n in his lef

t hand, and a knife

encase d in a holster o n his side. Petitioner does not deny that he c arried a hunting knife. I nstead, he argues that the gun wasthe prima

ry weapon u sed to intim

idate the victims an d accomp lishthe offe nse s. We find Petiti oner’s a

rgumen ts to be wit

hout merit

. We conclude that the indictments provided adequa te notice to Petitioner that he was being charged with armed robbery , aggravated kidnapping and aggravated r

ape. Furthermore, contrar y to his allegation that he was unable to prepare a defen se, Petitio ner succ essfully defended himself a gains tone count of aggrava ted rape when the State’s evidence proved insufficient to sustain a finding that e ither the gu n or the kn ife was used during the second rape in the victim’s car. Any alleged variance between the wording of the indictment

and the pro of at tria

l was not f

atal. Petitioner is not entitled to relief on this issue.
As for Petitioner’s claim that this Cour t’s redu cti on of his se ntence f or agg ravate d rape to simple rape vio lated the

constituti onal proh

ibiti on agains t doub le jeopa rdy , such cla

im, if true , would render Petitioner’s conviction for rape voidable rather than void. Ralph Phillip Claypole, Jr. v. State , No. M1999- 02591-CCA -R3-PC, 2001 WL 523367, at *2 (Tenn. Crim. App., Nashville, May 16, 2001); William A. Ransom v. State , NO. 01C01-9410-CR-00361, 1995 WL 555064, at *3 (Tenn. Crim. App., Nashville, Sept. 20, 1995), perm. to appeal denied (Tenn. Feb. 5, 1996). A judgment which is merely voidable ra ther than void is subject to attack o nl y through the post-conviction process, not through the habeas corpus proc edures. Taylor , 995 S.W.2d at 83.

CONCLUSION Based upon our review, we aff irm the trial court’s dismissal of Petitioner’s petition for writ of ha beas cor pus.

_____________________________________ JERRY L. SMITH, JUDGE