IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 1, 2005

MILTA D. BLANCHARD v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. P-28149 Joseph B. Dailey, Judge

No. W2004-01801-CCA-R3-HC - Filed May 13, 2005

The petitioner, Milta D. Blanchard, appeals the Shelby County Criminal Court’s denial of habeas

corpus relief and claims that his 1992 conviction of reckless endangerment is void because the

charging instrument did not charge the offense of reckless endangerment. We affirm the dismissal

of the petition.

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

JAMES CURWOOD WITT,JR.,J., delivered the opinion of the court, in which THOMAS T. WOODALL

and J.C. MCLIN, JJ., joined.

Lorna McClusky, Memphis, Tennessee (at trial); and William D. Massey, Memphis, Tennessee (on

appeal), for the Appellant, Milta D. Blanchard.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Jamie Kaplan, Assistant District Attorney

General, for the Appellee, State of Tennessee. 

OPINION

The record reveals that the petitioner was charged with aggravated assault by using

a pistol to cause the victim’s fear of imminent bodily injury. See Tenn. Code Ann. § 39-13-102

(2003). Pursuant to his 1992 written plea agreement, the petitioner pleaded guilty to reckless

endangerment, a Class E felony, and was sentenced to a Range I term of two years in the county

workhouse. In 2004, the petitioner filed a petition for habeas corpus relief, in which he asserted

that the conviction offense was not charged in the indictment. 

The habeas corpus court conducted a hearing on the state’s motion to dismiss the

petition. During the hearing, counsel for the petitioner and the state informed the court that the

petitioner was awaiting sentencing on both state and federal convictions. Counsel for the petitioner

acknowledged that she represented the petitioner on the federal matters. The petitioner had
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apparently long since completed service of the two-year sentence imposed in the challenged

conviction. Following the hearing, the court concluded that, as of the time of the offense in 1991

and the resulting conviction in 1992, reckless endangerment was considered a lesser included offense

of aggravated assault. Based upon this determination, the court dismissed the petition.

The legal issues raised in a habeas corpus proceeding are questions of law, and our

review of questions of law is de novo. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000) (“[W]hether

to grant the petition [for habeas corpus relief] is a question of law that we review de novo.”); State

v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (question of law reviewed on appeal de novo ).

Habeas corpus relief is available only when the aggrieved party’s conviction is void

because the convicting court lacked jurisdiction to impose the judgment or when the sentence has

expired. See Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). The petitioner in the present case

has apparently long since completed his sentence pursuant to the challenged judgment and is no

longer incarcerated pursuant to that judgment. Thus, he claimsthat his conviction judgment is void

on the ground that the conviction court lacked jurisdiction to enter the judgment.

A void conviction is one which strikes at the jurisdictional integrity of the trial court.

Id.; see State ex rel. Anglin v. Mitchell, 575 S.W.2d 284, 287 (Tenn. 1979); Passarella v. State, 891

S.W.2d 619, 627 (Tenn. Crim. App.1994). “‘Jurisdiction’ in the sense here used, is not limited to

jurisdiction of the person or of the subject matter but also includes lawful authority of the court to

render the particular order or judgment whereby the petitioner has been imprisoned.”; Anglin, 575

S.W.2d at 287; see Archer, 851 S.W.2d at 164; Passarella, 891 S.W.2d at 627.

“When there is a trial on a single charge of a felony, there is also a trial on all lesser

included offenses, ‘as the facts may be.’” State v. Willie D. Graham, No.03C01-9707-CC-00314,

slip op. at 19 (Tenn. Crim. App., May 7,1998) (quoting Strader v. State, 210 Tenn. 669, 362 S.W.2d

224, 227 (Tenn.1962)). When an individual is accused of a crime, however, the state must give the

accused adequate notice of the charged offense by specifying it in the indictment. See State v.

Trusty, 919 S.W.2d 305, 309 (Tenn.1996) (citing Tenn. Const. Art. I, § 9), overruled on other

grounds by State v. Dominy, 6 S.W.3d 472, 477 (Tenn. 1999). A defendant cannot be legally

convicted of an offense that is not charged in the indictment or that is not a lesser included offense

embraced in the indicted charge. State v. Lampkin, 619 S.W.2d 520 (Tenn. 1981); McLean v. State,

527 S.W.2d 76 (Tenn. 1975); State v. Morris, 788 S.W.2d 820 (Tenn. Crim. App.1990)). 

In the present case, the parties below debated whether reckless endangerment was a

lesser included offense of aggravated assault in 1992. We hold, however, that an issue nearer the

threshold of a habeas corpus proceeding disposes of the present case. Specifically, we hold that the

petitioner is neither imprisoned nor restrained of his liberty as a direct consequence of the challenged

judgment, and therefore, he is ineligible for habeas corpus relief. 

Article I, section 15 of the Tennessee Constitution establishes the right to seek habeas

corpus relief in Tennessee, but the procedures governing habeas corpus petitions are codified in
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Tennessee Code Annotated sections 29-21-101 through -130. Tennessee Code Annotated section

29-21-101 provides that “[a]ny person imprisoned or restrained of liberty, under any pretense

whatsoever, . . . may prosecute a writ of habeas corpus, to inquire into the cause of such

imprisonment and restraint.” Tenn. Code Ann. § 29-21-101 (2003) (emphasis added). “The

ordinary meaning of the term ‘imprisoned’ is clear[; it] refers to actual physical confinement or

detention,” Hickman v. State, 153 S.W.3d 16, 22 (Tenn. 2004), but the meaning of “restrained of

liberty” for habeas corpus purposes is less obvious. 

Although one need not be in physical confinement to be restrained of one’s liberty

for purposes of habeas corpus, id., “when the restraint on a petitioner's liberty is merely a collateral

consequence of the challenged judgment, habeas corpus is not an appropriate avenue for seeking

relief,” id. at 23. In Hickman, our supreme court held 

that a person is not “restrained of liberty” for purposes of the habeas

corpus statute unless the challenged judgment itself imposes a

restraint upon the petitioner’s freedom of action or movement. Use

of the challenged judgment to enhance the sentence imposed on a

separate conviction is not a restraint of liberty sufficient to permit a

habeas corpus challenge to the original conviction long after the

sentence on the original conviction has expired. 

Id.

This holding in Hickman disposes of the present petitioner’s claim to habeas corpus

relief. He does not allege that he remains imprisoned or is restrained of his liberty pursuant to the

challenged judgment. See id. at 24. Based upon the record of the hearing on the petition, the

petitioner apparently seeks to avoid the 1992 judgment as a means of diminishing his punishment

liability in ongoing – but unrelated – criminal proceedings. This is precisely the type of collateral

consequence of the challenged judgment that Hickman deemed unworthy of a habeas corpus remedy.

 

Accordingly, the dismissal of the petitioner is affirmed.

___________________________________ 

JAMES CURWOOD WITT, JR., JUDGE