IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
AUGUST SESSION, 1998 January 6, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
JAMES R. TWITTY, ) C.C.A. NO. 03C01-9707-CR-00310
)
Appe llant, )
) JOHNSON COUNTY
V. )
)
HOWARD CARLTON, Warden, ) HON. LYNN W. BROWN, JUDGE
and S TATE O F TEN NES SEE , )
)
Appellee. ) (HABEAS COR PUS)
FOR THE APPELLANT: FOR THE APPELLEE:
JAME S R. TW ITTY, pro se JOHN KNOX WALKUP
Northeast Correctional Center Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683-5000 ELIZABETH B. MARNEY
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Petitioner, James R. Twitty, appeals as of right the trial court’s dismissal
of his p etition fo r writ of habeas corpus. In this pro se appea l, Petitioner p resents
the following seven (7) issues for review: (1) whether the indictment was defective;
(2) whether his plea was coerced; (3) whether he received ineffective assistance of
trial counsel; (4) whether he is serving an exc essive sente nce; (5 ) wheth er he is
serving a sentence for a non-existent crime ; (6) wh ether th e trial co urt erre d in
dismissing his petition without appointment of counsel or an evidentiary hearing;
and; (7) whether he is being held unconstitutionally because of the defective
indictment and the excessive sentence. In this opinion, we will summarize
Defe ndan t’s seven (7) issues as basic ally four (4) ch allenges : a defective indictme nt,
a coerced plea, ineffective assistance of trial counsel, and an excessive sentence
for a non-existent crime. After a careful review of the issues, we affirm the judgment
of the trial cou rt.
It is a well-established principle of law that the remedy of habeas corpus is
limited in its nature and its scope. Archer v. State, 851 S.W.2d 157, 161-62 (Tenn.
1993); Passa rella v. State , 891 S.W.2d 619, 626 (Tenn. Crim . App. 19 94). In
Tennessee, habeas corpus relief is available only if “‘it appears upon the face of the
judgment or the record of the proce eding s upo n whic h the ju dgm ent is rendered’ that
a convicting court was without jurisdiction or authority to sentence a defendant, or
that a defenda nt’s sentence o f imprisonm ent or other restraint ha s expired.” Archer,
851 S.W .2d at 164 (citation omitted in original). The petitioner has the burden of
establishing either a void judgment or an illegal confinement by a preponderance of
the evide nce. Pass arella, 891 S .W .2d at 6 27. Mo reove r, wher e a jud gme nt is not
-2-
void, but is m erely voidable, such judgment may not be co llaterally a ttacke d in a su it
for habe as corp us relief. Id.
Norma lly, defenses based on defects in the indictment are usually foreclosed
if they are not raised prior to trial. Tenn . R. Crim . P. 12( b)(2) a nd (f). H owev er, Ru le
12(b)(2) also provides that a court shall notice at any time during the pendency of
the proce eding s the d efens e that th e indic tmen t fails to show jurisdiction in the court
or that it fails to charge an offense. Dykes v. Compton, __S.W.2d __, No. 02-S-01-
9711-CC-00105, Lake Coun ty (Tenn ., Nashville, S ept. 21, 19 98). A valid indictment
is an essen tial jurisdictional element, without which there can be no prosecution.
See State v. Hill, 954 S.W.2d 725, 72 7 (Ten n. 1997 ); State v. Stokes, 954 S.W.2d
729, 730 (T enn. 1 997). “B ecau se a h abea s corp us pro ceed ing will allow us to
examine the record -- including the indictment -- it is an appropriate vehicle to
determine whether a jud gment is void.” Dykes, No. 02-S -01-9 711-C C-00 105, s lip
op. at 2-3.
I.
In his first issue, Petitioner argues that th e indic tmen t is invalid beca use it
does not allege an y injury to the victim, nor does it allege any type of weapon used
for the atte mpte d mu rder. P etitione r’s reliance on State v. Kimbrough, 924 S.W.2d
888 (Tenn. 1996), to attack his indictment for attempted first degree m urder is
misplaced. The Kimbrough case dealt with a conviction for attempt to commit felony
murder, not an attempt to commit premeditated first degree murder. Nonetheless,
we find that the indictment properly charges him with the com mission of a
substantive offense, a ttempt to comm it murde r in the first deg ree. See State v.
-3-
Stampley, C.C.A. No. 02-C-01-9409-CR-00208, slip op. at 7, Shelby County (Tenn.
Crim. App., Ja ckson, A ug. 16, 19 96), perm. to appeal denied (Tenn. 1997). The
Stampley case invo lved an ind ictmen t almost identic al to the indictment in the
present case. The indictment in the case before us reads in pertinent part as follows:
[O]n the 20th day of January, 1991, in Washington
County, Tennessee, [Petitioner] did unlawfully, deliberately
and with premeditation attempt to kill [victim], in violation
of Section 39-12-101, Tennessee Code Annotated, and
against the peace and dignity of the State of Tennessee.
Although the Court in Stampley was fo cusin g on th e petitio ner’s argument that the
indictment failed to allege an overt act, this Court nonetheless held that the
“language clearly a lleges that the appe llant comm itted the offe nse of atte mpt to
com mit murder in the first deg ree,” and that the issu e was w ithout me rit. Id. We
also note that case law reveals that including a type of weapon used in the offense
or that the victim sustained bodily injury in the indictment is not required when
charging attemp ted first deg ree mu rder. See, e.g., State v. Nix, 922 S.W.2d 894
(Tenn. Crim. A pp. 199 5), perm. to appeal denied (Tenn . 1996); State v. Jimmie Lee
Demoss, C.C.A. No. 02C01-9406-CC-00127, Madiso n Cou nty (Ten n. Crim. A pp.,
Jackson, Apr. 26, 1 995); State v. Edwin Jesperson, C.C.A. No. 03C01-9206-CR-
00212, Monroe C ounty (Tenn. Crim. A pp., Kno xville, Aug. 11 , 1993), perm. to appeal
denied (Tenn . 1993). T his issue is without m erit.
II. and III.
-4-
Petitioner’s next two issues, the coerced plea and ineffective assistance of
counsel, are not c ognizable in a habeas corpus proceeding. These kinds of
collateral attacks based on constitutional challenges to an otherwise valid conviction
are proper for post-conviction relief procee dings, but not in a petition for habeas
corpus relief. See, e.g., Archer v. State, 851 S.W.2d 157, 164-65 (Tenn. 1993).
Thes e issues are witho ut merit.
IV.
As to his last issue, Petitioner fails to carry his b urden of estab lishing by a
preponderance of the evidence that his term of imprisonment has expired.
Pass arella, 891 S.W .2d at 6 26-27 . Petition er sim ply says that his sente nce is
excessive and that he has served his sentence. However, Petitioner offers no
evidence to support his arguments. Furthermore, he does not allege that the
convicting court was without jurisdiction, thereby making his conviction and sentence
void. The refore, this iss ue is witho ut merit.
This Court has held that if it is clear from the face of the petition that the
petitioner is not entitled to relief, then the trial court is not required to hold a hearing
or inquire into the allegations in the petition, but may dismiss the petition sum marily.
Id. We agree with the trial court’s dismissal of Petitioner’s petition.
Accordingly, the judgment of the trial court is affirmed.
____________________________________
-5-
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JOSEPH M. TIPTON, Judge
___________________________________
JOE G. RILEY, Judge
-6-
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
AUGUST 1998 SESSION January 6, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
JAMES R. TW ITTY, )
)
Appe llant, ) No. 03C01-9707-CR-00310
)
) Johns on Co unty
v. )
) Honorable Lynn W. Brown, Judge
)
HOW ARD CARLTO N, Warden ) (Habeas Corpus)
and STATE OF TENNESSEE, )
)
Appellees. )
DISSENTING OPINION
I agree w ith mos t of the resu lts and rea soning in the ma jority opinion . I
respe ctfully disagree with its conclusion that the indictment in this case is sufficient
to allege th e offense of attem pt to com mit first deg ree mu rder.
The majority opinion relies upon State v. Cedric E. Stampley, No. 02-C-01-
9409-CR-00208, Shelby County (Tenn. Crim. App. Aug. 16, 1996), app. denied
(Tenn. Jan. 27, 199 7), which held that a n indictm ent simila r to the one in this case
was sufficient to allege the offense o f attemp t to comm it first degree murde r. In
Stampley, the defendant argued that the indictment failed to allege a n overt ac t. In
full, this court’s reasoning was as follows: “The fallacy with this argument is that the
indictment does not charge the appellant with conspiring to commit an offense. The
indictment charge s him w ith the com mission of a subs tantive offen se, attem pt to
-7-
com mit murder in the first degree.” Slip op. at 9. The court then merely stated that
the allega tions allege d the offen se of attem pted first de gree m urder.
On the other hand, in State v. Michael K. Ch ristian, Jr., No. 03C01-9609-CR-
00336, Sullivan County (Tenn. Crim. App. Mar. 23, 1998), applic. filed (May 22,
1998), this court m ade a d etailed an alysis of the eleme nts of a criminal attem pt.
Christian claimed that the presentment against him charging attempted first degree
murder failed to alleg e the elem ents of an attemp t. The pertinent allegations w ere
that the defenda nt “did attemp t to kill [the victim] b y stabb ing [he r] with a d eadly
weapon . . . which conduct constituted a substantial step toward the commission of
the said offense.” This court stated the following:
“An indictment or information charging an attempt to commit a
crime should specifically allege intent and the overt act done tow ard
commission of the offense . . . .” Indictments and Informations, 41 Am.
Jur. 2d, § 132, p. 748 (2d Ed. 1995) (footnotes omitted) . In Gervin v.
State, 371 S.W.2d 449, 451 (Tenn. 1963), our supreme court ruled that
an indictment cha rging so licitation would not sustain a conviction for
attemp t. The cou rt described criminal attempt as follows: “An attempt
. . . requires . . . (1) an intent to commit a specific crime; [and] (2) an
overt act . . . . In attem pts, the intent must be to commit the
contemplated crime.
. . . To constitute an attempt there must also be an act of perpetration,
that is an overt act.” Id. (Citations o mitted).
This genera l concep t of crimina l attempt carried over into the
1989 c odification o f criminal a ttempt:
Criminal attempt is an offense directed at the individual
whos e inten t is to com mit an offense, but whose actions,
while strongly corrobora tive of crimin al intent, fail to
achieve the criminal objective intended. Accordingly, the
offense is basically one of criminal intent cou pled with a cts
that clearly dem onstrate the offender’s proclivity toward
criminality.
Sentencing Commission Comments to Tenn. Code Ann. § 39-12-101.
Slip op. at 13-14 (footnote omitted). This court concluded that the allegation
regar ding th e defe ndan t stabb ing the victim w ith a de adly we apon sufficie ntly
-8-
showed the conduct that was a substantial step toward commission of a first
degree murde r.
The ind ictmen t is required to state the facts that co nstitute the offense.
T.C.A . § 40-1 3-202 . Each of the th ree m eans of crim inal atte mpt p rovide d in
T.C.A. § 39-12-101 requires an act or actions to go with the intent to commit an
offense , in this case first degree murde r. The failur e of the ch arging ins trumen t to
allege any co nduc t or actio n by the petition er relativ e to him intend ing to c omm it
first degree murde r renders the indictm ent fatally de ficient.
_____________________________
Joseph M. Tipton, Judge
-9-