Jeffery Miller v. Jewell Steele, Warden ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 17, 2013
JEFFERY MILLER v. JEWELL STEELE, WARDEN
Direct Appeal from the Criminal Court for Davidson County
No. 4422 Mark J. Fishburn, Judge
No. M2012-01628-CCA-R3-HC - Filed July 24, 2013
Petitioner, Jeffery Miller, appeals from the trial court’s summary dismissal of Petitioner’s
petition for writ of habeas corpus. After reviewing the record and the parties’ briefs we
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, Jr. and J EFFREY S. B IVINS, JJ., joined.
F. Michie Gibson, Jr., Nashville, Tennessee, for the appellant, Jeffery Miller.
Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Amy Tarkington,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The October, 1996 term of the Montgomery County Grand Jury returned an
indictment that charged Petitioner with first degree murder. The indictment alleged in
pertinent part that
on or about the 1st day of September, 1996, and in the State and County
aforesaid, [Petitioner] unlawfully, feloniously, knowingly, intentionally,
deliberately and with premeditation did kill Joshua Kelley, by use of a
deadly weapon, to-wit: a firearm, in violation of TCA 39-13-202(a)(1) and
against the peace and dignity of the State of Tennessee.
(Emphasis added).
On April 28, 1997, the day the trial began, the State made a motion to amend the
indictment to delete the word “deliberately.” This motion was granted. The trial court’s
docket sheet for that day notes the motion and disposition, but does not state whether
Petitioner had an objection to the amendment, no objection, or if he joined in the motion.
The trial court’s minute entry provides no additional information. The jury was unable to
reach a verdict and a mistrial was declared. At the subsequent trial, Petitioner was convicted
as charged. This court affirmed the conviction on direct appeal. State v. Jeffery Miller, No.
01C01-9801-CC-00029, 1999 WL 398188 (Tenn. Crim. App. June 18, 1999), perm. app.
denied (Tenn. Nov. 22, 1999).
The petition which is the subject of this appeal was filed December 2, 2011. In the
petition, it is alleged that the sentence is an illegal, void sentence. Petitioner first alleged that
the sentence was the result of a defective indictment, because “the indictment fails to allege
all the essential elements of [first degree murder].” Specifically, Petitioner asserts that the
State’s motion to amend the indictment, which resulted in the word “deliberately” being
deleted, resulted in an “essential element” of first degree murder being removed from the
indictment. The main thrust of the petition for habeas corpus relief is that without the
essential element of “deliberation” the indictment was “nullified” because thereafter the
indictment failed to allege a criminal offense, and the conviction was thus void. As an added
allegation, or perhaps as an alternative theory for relief, Petitioner added the following
assertion at the conclusion of the factual allegations in the petition:
The trial court impermissibly amended the indictment after jeopardy
had attached to broaden the charge that was returned by the Grand Jury, and
as such, the amendment did not provide the petitioner with timely notice of
the charges to assert an adequate defense.
Thus Petitioner asserted that the amendment to the indictment either (1) resulted in
the indictment not charging a criminal offense, or (2) broadened the “charge that was
returned by the Grand Jury.” Although Petitioner alleges the indictment was amended after
jeopardy had attached, he does not allege, and none of the documents filed with the petition
indicate, if the jury in the first trial had been selected and sworn prior to the amendment to
the indictment. In any event, it is abundantly clear from the record that the indictment was
amended prior to jeopardy attaching by the process of swearing of the jury in the second trial,
which is the jury which convicted Petitioner.
The State asserts the appeal should be dismissed because Petitioner’s notice of appeal
was not timely filed within thirty days after the entry of the trial court’s order dismissing the
petition. The trial court’s order was entered on January 5, 2012, and the notice of appeal was
filed approximately six months later on July 10, 2012. The petition was filed pro se, and
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Petitioner retained counsel who filed the late notice of appeal. Subsequently, counsel filed
a motion for this court to waive the timely filing of the notice of appeal. In support thereof,
Petitioner’s affidavit, filed with the motion, stated that he never received a copy of, or other
notice of, the order dismissing his petition. Tennessee Rule of Appellate Procedure 4(a)
provides that “in all criminal cases the ‘notice of appeal’ document is not jurisdictional and
the filing of such document may be waived in the interest of justice.” We exercise our
discretion in this case and waive the timely filing of the notice of appeal. We note that while
the order dismissing the petition provides at the end thereof, “cc: Mr. Jeffery Miller,
Petitioner,” there is no certificate of service on the order, and thus no signature of any person
proving that a copy of the order was sent to Petitioner in compliance with the “cc:.”
As to the merits of the case, we conclude that Petitioner is not entitled to relief in this
appeal. The offense occurred on September 1, 1996. Jeffery Miller, 1999 WL 398188 at *1.
In 1995, well prior to the commission of the offense in this case, “deliberately” was deleted
as a necessary element of first degree murder. See Tennessee Public Acts 1995, ch. 460,
effective July 1, 1995. Accordingly, the indictment was proper.
As to Petitioner’s assertion that “the amendment did not provide the petitioner with
timely notice of the charges to assert an adequate defense,” even if this allegation had merit,
which it does not, it would only make the judgment of conviction merely voidable, and not
void.
It is well settled law that a conviction which may be merely voidable, but not void, is
not reviewable in a habeas corpus proceeding. Taylor v. State, 995 S.W.2d 78, 83 (Tenn.
1999). A void judgment is one which shows on the face of the record a lack of jurisdiction
by the trial court over the person, the subject matter of the case, the issue to be decided, or
the relief to be granted. See Cantrell v. Easterling, 346 S.W.3d 445, 453-54 (Tenn. 2011).
In a habeas corpus proceeding the term “jurisdiction” is synonymous with “authority.” Id.,
at 454.
A judgment which may be merely voidable is facially valid and requires additional
proof beyond the face of the judgment or record to establish its alleged invalidity, i.e., alleged
failure to give proper notice. Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007). If the
petition for habeas corpus relief fails on its face to state a cognizable claim, the trial court
may summarily dismiss the petition. State ex. rel. Byrd v. Bomar, 381 S.W.2d 280, 283
(1964). Petitioner is not entitled to relief in this appeal. Accordingly, the judgment of the
trial court summarily dismissing the petition for habeas corpus relief is affirmed.
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THOMAS T. WOODALL, JUDGE
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