IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 13, 2004
KEVIN L. MARSHALL v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Coffee County
No. 31690 L. Craig Johnson, Judge
No. M2004-01077-CCA-R3-HC -Filed October 29, 2004
The petitioner, Kevin L. Marshall, appeals the dismissal of his motion to correct an illegal
sentence. Because this is not the appropriate context for this appeal and because we conclude
that the record supports the trial court’s determination that the petitioner failed to set forth a
factual or legal basis on which to justify relief, we affirm the dismissal of the post-conviction
petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which GARY R. WADE, P.J.,
and DAVID H. WELLES, J., joined.
Kevin L. Marshall, Clifton, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant
Attorney General; Charles Michael Layne, District Attorney General; and Kenneth J. Shelton,
Jr., Deputy District Attorney, for the appellee, State of Tennessee.
OPINION
The petitioner was indicted on two counts of vehicular homicide and two counts of
leaving the scene of an accident involving a fatality. Pursuant to a negotiated plea agreement,
the vehicular homicide charges were dismissed and the petitioner pled guilty to leaving the scene
of an accident with a fatality and an amended charge of evading arrest. The petitioner was
sentenced to four years and one year for the charges, respectively. The petitioner thereafter filed
a “Motion to Correct Illegal Sentence,” in which he claimed that the court lacked jurisdiction to
render the judgment because the original indictment did not reflect the count of evading arrest,
and no new indictment or amended indictment was filed in the matter. The trial court considered
the matter as a petition for post-conviction relief and summarily dismissed it. The court
particularly noted the plea proceedings and the agreed amendment to Count Four of the
indictment and concluded that the petition set forth no factual or legal basis upon which to
justify relief. Thereafter, the petitioner filed a timely appeal to this Court.
Initially, we note that the petitioner seeks to appeal as of right the trial court’s dismissal
of his motion. However, “‘Rule 3(b) of the Tennessee Rules of Appellate Procedure does not
permit a direct appeal of a trial court’s dismissal of a motion to correct an illegal sentence.’”
Robin McNeal Vanhoose v. State, No. W2003-02176-CCA-R3-CO, 2004 Tenn. Crim. App.
LEXIS 798 (Tenn. Crim. App., at Jackson, Sept. 17, 2004) (quoting State v. Ernest Eugene
Thomas, No. E2000-02613-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 590 (Tenn. Crim.
App., at Knoxville, Aug. 3, 2001)); see also Tenn. R. App. P. 3(b). Rather, the appropriate
method for challenging an illegal or void judgment is through a petition for writ of habeas
corpus, the denial of which can be directly appealed to this Court. See Tenn. R. App. P. 3(b);
Tenn. Code Ann. § 29-21-127 (2004); Cox v. State, 53 S.W.3d 287, 294 (Tenn. Crim. App.
2001). In the case at bar, the petitioner has failed to follow the statutory procedural provisions
for filing a habeas petition as set out in Tennessee Code Annotated section 29-21-107; therefore,
we will not treat his appeal as such.
Alternatively, in rare circumstances, when a Rule 3 appeal is not available to a petitioner,
this Court may treat an appeal as a petition for writ of certiorari, now codified at Tennessee Code
Annotated section 27-8-101. See Cox, 53 S.W.3d at 294. This Court has previously held,
however, that the writ of certiorari is “limited” and that “appeals via certiorari should rarely be
granted to review motions that assert sentencing infirmities which do not rise to the level of
illegality or voidness.” Id. Although we do not believe it is an appropriate subject for such
treatment, even if this appeal was treated as a petition for writ of certiorari, we conclude that the
issues raised by the petitioner are without merit.
In the motion that is the basis for this appeal, the petitioner challenged his conviction for
evading arrest. The record shows that the petitioner’s original indictment included two counts of
leaving the scene of an accident involving a fatality and that one of the charges was amended to
evading arrest at the time of the petitioner’s plea. The petitioner contends that the conviction for
evading arrest is illegal because the original indictment did not reflect the charge and no new
indictment was issued. However, Tenn. R. Crim. P. 7(b) states that an indictment may be
amended in all cases with the consent of the petitioner. Tenn. R. Crim. P. 7(b). Moreover, an
indictment may be amended by oral or written motion, and the petitioner’s oral or written
consent must be clear from the record. State v. Stokes, 24 S.W.3d 319, 323 (Tenn. 2000).
Instructive in this appeal is our supreme court’s recent holding in State v. Yoreck, which
squarely addresses the issue with which we are presented. State v. Yoreck, 133 S.W.3d 606
(Tenn. 2004). In Yoreck, the court held that a indictment is not facially void when: (1) the trial
court properly had subject matter jurisdiction over the case at issue, (2) it appears that the
indictments were orally amended during the guilty plea proceedings, and (3) the judgments
indicate agreed amendments to the indictments. Id. at 612. Under this standard, the record
reflects that no jurisdictional defect exists, thus the judgment in this case was neither illegal nor
void.
In the case sub judice, the petitioner was initially charged with a proper indictment and
the trial court was vested with jurisdiction, thus the first requirement is met. See, e.g., Wyatt v.
State, 24 S.W.3d 319 (Tenn. 2000). Further, the record reflects that the petitioner subscribed a
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“Plea of Guilty and Acknowledgment and Wavier of Rights,” that the document noted in two
separate places that the offense to which the petitioner pled was an amended charge, and that the
document identified the charge as a Class E felony. Therefore, it appears that the indictments
were orally amended during the plea proceedings. Finally, the judgment reflects the agreed
amendment. Pursuant to Rule 7(b), it was the petitioner’s right to agree to amendment of the
indictment and to enter a plea of guilty to the amended charge of evading arrest, and that is
precisely what he did. It is of no consequence that the petitioner now seeks to renounce his plea;
his signature on the plea documents is a clear indication of the petitioner’s notice of, and written
consent to, the amended charge. Thus, the record reflects that the trial court had jurisdiction to
render the judgment in this case.
Pursuant to the rule in Yoreck, because no jurisdictional defect exists, the judgment and
sentence could be, at most, voidable. Moreover, by entering a plea of guilty, the petitioner
admitted all facts and elements necessary to sustain a conviction and waived all other non-
jurisdictional defects or constitutional irregularities. See State v. McKinney, 74 S.W.3d 291,
306 (Tenn. 2002). For all of the above reasons, the dismissal of the motion to correct illegal
sentence is affirmed.
Conclusion
Based on the foregoing and the record as a whole, we affirm the post-conviction court’s
judgment.
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JOHN EVERETT WILLIAMS, JUDGE
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