IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

ADRIAN D. WILKERSON v. MICHAEL PARRIS, WARDEN ET AL.

Appeal from the Criminal Court for Morgan County

No. 2018-CR-17 Jeffery Hill Wicks, Judge

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No. E2018-01440-CCA-R3-HC

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The Appellant, Adrian D. Wilkerson, appeals as of right from the Morgan County 

Criminal Court’s judgment summarily denying his petition for a writ of habeas corpus. 

The State has filed a motion to dismiss this appeal due to an untimely notice of appeal or, 

alternatively, affirm by memorandum opinion the judgment of the habeas corpus court. 

Following our review, we conclude that the interest of justice requires a waiver of the 

timely filing of the notice of appeal and, therefore, deny the State’s motion to dismiss. 

We further conclude, however, that an opinion in this case would have no precedential 

value and affirm the judgment of the habeas corpus court pursuant to Rule 20 of the 

Rules of the Tennessee Court of Criminal Appeals.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

Pursuant to Rule 20, Rules of the Court of Criminal Appeals.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY 

THOMAS, JR. and ROBERT H. MONTGOMERY, JR., JJ., joined.

Adrian D. Wilkerson, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; and Clark B. Thornton, Senior 

Assistant Attorney General.

MEMORANDUM OPINION

Before the court is the State’s motion to dismiss this appeal based upon the 

untimely filing of the notice of appeal or, alternatively, affirm by memorandum opinion 

the judgment of the habeas corpus court. The pro se Appellant seeks an appeal as of right 

from the habeas corpus court’s summary denial of relief. The habeas corpus court’s 

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order denying relief was filed on June 20, 2018. The Appellant filed a notice of appeal 

with this court on August 8, 2018, forty-nine days after the entry of the habeas corpus

court’s judgment. The Appellant, however, attempted to file a notice of appeal with the 

trial court clerk on July 19, 2018. The Appellant has not filed a response to the State’s 

motion.

Tennessee Rule of Appellate Procedure 4(a) provides that “the notice of appeal 

required by Rule 3 shall be filed with the clerk of the appellate court within 30 days after 

the date of entry of the judgment.” Tenn. R. App. P. 4(a). “[H]owever, in all criminal 

cases the ‘notice of appeal’ document is not jurisdictional and the timely filing of such 

document may be waived in the interest of justice.” Id. The appellant bears the burden 

of establishing when the interest of justice mandates waiver of the timely filing of the 

notice of appeal. State v. Kevin Montrell Thompson, E2016-01565-CCA-R3-CD, 2017 

WL 262701, at *2 (Tenn. Crim. App. Jan. 20, 2017). That said, the Appellant has not 

responded to the State’s motion to dismiss. See State v. Rockwell, 280 S.W.3d 212, 214 

(Tenn. Crim. App. 2007) (encouraging litigants to file a motion seeking permission to 

waive the timely filing of a notice of appeal or motion to dismiss prior to assignment to 

the court for consideration). Although the notice of appeal filed with the appellate court 

clerk was untimely, we note that the Appellant’s attempted filing with the trial court clerk 

would have been considered timely prior to the expiration of the Rule 4 transitional 

period just weeks before the due date of the notice of appeal. Furthermore, the August 8, 

2018 filing with the appellate court clerk was only nineteen days late. Under these 

circumstances, we conclude that a waiver of the timeliness of the notice of appeal is 

warranted. Therefore, the State’s motion to dismiss the appeal is DENIED. We further 

conclude, however, that an opinion in this case would have no precedential value and 

affirm by memorandum opinion the judgment of the habeas corpus court. See Tenn. Ct. 

Crim. App. R. 20.

Factual Background

The Appellant was convicted by a Davidson County Criminal Court jury of 

especially aggravated robbery, theft of property valued over $1,000, and first degree 

felony murder. The trial court imposed a total effective sentence of life plus twenty-nine 

years. On direct appeal, this court affirmed the Appellant’s convictions but modified the 

sentence to a total effective sentence of life plus twenty-five years. State v. Adrian 

Wilkerson and Steven Murphy, No. 01C01-9610-CR-00419, 1998 WL 538551 (Tenn. 

Crim. App. Aug. 26, 1998) (designated not for citation), perm. app. denied (Tenn. Sept. 

18, 2000). The Appellant unsuccessfully pursued post-conviction relief, the denial of 

which was affirmed by this court. Adrian Wilkerson v. State, No. M2001-02295-CCAR3-PC, 2002 WL 1558521 (Tenn. Crim. App. July 16, 2002), perm. app. denied (Tenn. 

Dec. 9, 2002). The Appellant filed a subsequent petition for post-conviction relief, the 
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summary denial of which was affirmed by this court. Adrian Wilkerson v. State, No. 

M2015-00420-CCA-R3-PC, 2015 WL 5240043 (Tenn. Crim. App. Sept. 8, 2015), perm. 

app. denied (Tenn. Dec. 10, 2015). The Appellant filed his first petition for a writ of 

habeas corpus, alleging ineffective assistance of counsel and jury instruction error. This 

court affirmed by memorandum opinion the habeas corpus court’s order summarily 

denying relief. Adrian Wilkerson v. State, M2003-01385-CCA-R3-HC, 2004 WL 

2599458 (Tenn. Crim. App. Nov. 12, 2004), perm. app. denied (Tenn. Feb. 25, 2005). 

The Appellant filed a second petition for a writ of habeas corpus, alleging once again that 

the trial court erroneously instructed the jury on lesser included offenses. This court

affirmed by memorandum opinion the habeas corpus court’s summary denial of relief. 

Adrian Wilkerson v. State, No. E2007-00382-CCA-R3-HC, 2008 WL 793784 (Tenn. 

Crim. App. Mar. 26, 2008). In his third petition for a writ of habeas corpus, the 

Appellant alleged that the trial court failed to properly enter judgments in the especially 

aggravated robbery and theft convictions. While noting the judgments of conviction 

originally included “transposed” sentences that were properly corrected by the habeas 

corpus court pursuant to Tennessee Rule of Criminal Procedure 36, this court affirmed 

the habeas corpus court’s summary denial of relief. Adrian Wilkerson v. State, E2007-

02453-CCA-R3-HC, 2008 WL 4949227 (Tenn. Crim. App. Nov. 20, 2008).

On April 25, 2018, the Appellant filed his fourth petition for a writ of habeas 

corpus. This time, the Appellant alleged that the trial court was without jurisdiction to 

enter the judgments of conviction based upon a fatally defective indictment. The 

Appellant asserted that the indictment was fatally defective because the first degree 

felony murder count only alleged robbery as the requisite felony offense, rather than 

especially aggravated robbery as charged in a separate count. On June 18, 2018, the State 

filed a motion to dismiss the petition. On June 20, 2018, the habeas corpus court 

summarily denied relief, ruling that the indictment was sufficient to vest the trial court 

with jurisdiction to enter judgment against the Appellant.

Analysis

The determination of whether to grant habeas corpus relief is a question of law. 

Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we will review the trial 

court’s findings de novo without a presumption of correctness. Id. Moreover, it is the 

petitioner’s burden to demonstrate, by a preponderance of the evidence, “that the 

sentence is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 

(Tenn. 2000).

Article I, section 15 of the Tennessee Constitution guarantees an accused the right 

to seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). 

However, “[s]uch relief is available only when it appears from the face of the judgment 
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or the record of the proceedings that a trial court was without jurisdiction to sentence a 

defendant or that a defendant’s sentence of imprisonment or other restraint has expired.” 

Wyatt, 24 S.W.3d at 322; see also Tenn. Code Ann. § 29-21-101. In other words, habeas 

corpus relief may be sought only when the judgment is void, not merely voidable. 

Taylor, 995 S.W.2d at 83. “A void judgment ‘is one in which the judgment is facially 

invalid because the court lacked jurisdiction or authority to render the judgment or 

because the defendant’s sentence has expired.’ We have recognized that a sentence 

imposed in direct contravention of a statute, for example, is void and illegal.” 

Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (quoting Taylor, 995 S.W.2d at 

83).

Typically, challenges to an indictment are not proper for a habeas corpus action.

Haggard v. State, 475 S.W.2d 186, 187-88 (Tenn. Crim. App. 1971). However, our 

supreme court has held that “the validity of an indictment and the efficacy of the resulting 

conviction may be addressed in a petition for [a writ of] habeas corpus when the 

indictment is so defective as to deprive the court of jurisdiction.” Dykes v. Compton, 978 

S.W.2d 528, 529 (Tenn. 1998). It is undisputed that a valid indictment is essential to 

establish jurisdiction for prosecution. Id. Generally, an indictment is valid if the 

information contained therein provides sufficient information “(1) to enable the accused 

to know the accusation to which answer is required, (2) to furnish the court adequate 

basis for the entry of a proper judgment, and (3) to protect the accused from double 

jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). Moreover, our supreme 

court has concluded that there is no need to conform to traditionally strict pleading 

requirements which are fraught with empty technicalities. Id. at 727-28.

The Petitioner maintains on appeal that the indictment was fatally defective 

because the first degree felony murder charge failed to allege that the murder was 

committed in the perpetration of an especially aggravated robbery. As this court has 

stated “the felony murder statute generally states the requisite underlying felonies 

associated with its application. Necessarily included in the list of requisite felonies is any 

other grade of the same felony.” State v. Steven Wayne Wilson, No. M2011-00004-

CCA-R3CD, 2012 WL 3041451, at *16 (Tenn. Crim. App. July 25, 2012), perm. app. 

denied (Tenn. Dec. 13, 2012). The indictment in this case automatically encompassed a 

murder committed in the perpetration of an especially aggravated robbery, and there is no 

requirement that the enhanced class be charged in the indictment. Therefore, “the 

indictment sufficiently vested the court with jurisdiction and the resulting judgment of 

conviction is valid.” Dykes, 978 S.W.2d at 529. The Appellant’s additional argument 

that he was somehow illegally convicted of first degree premediated murder via a 

constructive amendment to the indictment is not supported by the record. We conclude 

that the habeas corpus court did not err in dismissing the petition.
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Conclusion

We affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the 

Tennessee Court of Criminal Appeals.

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NORMA MCGEE OGLE, JUDGE