Dwayne R. Cross v. State of Tennessee ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
DWAYNE R. CROSS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Blount County
Nos. C-10380, C-10542 David Reed Duggan, Judge
No. E2009-02153-CCA-R3-CO - Filed September 29, 2011
The defendant, Dwayne R. Cross, appeals the Blount County Circuit Court’s denial of his
motion to dismiss the indictments in this case, and the State moves this court to affirm the
circuit court’s order summarily via Tennessee Court of Criminal Appeals Rule 20. The
State’s motion is well taken, and accordingly, the circuit court’s order is affirmed pursuant
to Rule 20.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
Pursuant to Rule 20, Rules of the Court of Criminal Appeals
J AMES C URWOOD W ITT, J R., J., delivered the opinion of the court, in which J OSEPH M.
T IPTON, P.J., and N ORMA M CG EE O GLE, J., joined.
Dwayne R. Cross, appellant, pro se.
Robert E. Cooper, Jr., Attorney General & Reporter; and Clark Bryan Thornton, Assistant
Attorney General, for the appellee, State of Tennessee.
MEMORANDUM OPINION
In one of the defendant’s cases, following a jury trial, the trial court entered a
judgment of conviction of rape in 1999. Also, later in 1999, following a guilty plea, the trial
court entered a judgment of conviction of second degree murder. The defendant appealed
his conviction and nine-year sentence in the rape case; this court affirmed the trial court in
that case. See State v. Dewayne R. Cross, No. 03C01-CC-00053 (Tenn. Crim. App.,
Knoxville, Feb. 7, 2000). This court also affirmed the trial court’s denial of the defendant’s
petition for post-conviction relief from the rape conviction. See Dewayne R. Cross v. State,
No. E2006-00375-CCA-R3-PC (Tenn. Crim. App., Knoxville, Sept. 20, 2006).1 Apparently,
no appeal emanated from the murder conviction, and no post-conviction proceeding ensued.
The defendant predicated his 2009 motion to dismiss his indictments upon the
claim that the Blount County Circuit Court systematically excluded African Americans from
the position of grand jury foreperson. The circuit court summarily dismissed the motion.
We deem the defendant’s claim to import only that the convictions are
voidable, not void, and as such, the conviction judgments were final long before the motion
to dismiss was filed. The defendant’s claim of systematic exclusion of African American’s
from the post of grand jury foreperson bespeaks a facet of the Sixth Amendment right to jury
trial. State v. Bell, 745 S.W.2d 858, 860 (Tenn. 1988) (“Selection of a . . . jury from a
representative cross-section of the community is an essential component of the Sixth
Amendment right to a jury trial.”) (citing Taylor v. Louisiana, 419 U.S. 522 (1975)). This
court has consistently held that claims of deprivations of the right to jury trial render the
resulting judgments voidable and not void. See, e.g., Francis L. Sanschargrin v. State, No.
M2005-00304-CCA-R3-HC, slip op. at 2 (Tenn. Crim. App., Nashville, Aug. 11, 2005);
Wayford Demonbruen, Jr. v. State, No. M2004-03037-CCA-R3-HC (Tenn. Crim. App.,
Nashville, June 30, 2005); Robert Howell v. Tony Parker, W2005-00521-CCA-R3-HC,
(Tenn. Crim. App., Jackson, June 27, 2005); see also State v. Neal, 810 S.W.2d 131, 134
(Tenn. 1991) (failure to apprize the defendant of the “full litany of information [concerning
his constitutional privileges] that is required to be communicated” to the accused prior to his
giving up the right to a jury trial “merely renders the related judgment voidable rather than
void”). In the present case, the trial court lost jurisdiction to operate within the original
criminal cases.
Thus, based upon the defendant’s claim, the only theoretical challenge to his
indictments would come in the form of collateral attack. The availability of collateral attack
upon criminal convictions, however, is limited. For instance, relief in the form of a writ of
habeas corpus is not available when the challenged judgment is merely voidable. Archer v.
State, 851 S.W.2d 157, 164 (Tenn. 1993); State ex rel. Newsom v. Henderson, 424 S.W.2d
186, 189 (Tenn. 1968). Collateral attack in the form of a proceeding pursuant to the Post-
Conviction Procedure Act is available when a constitutional deprivation renders a criminal
judgment merely voidable, see T.C.A. § 40-30-103, but procedural impediments within the
Act preclude the claim now under review.
1
These appellate opinions spell the defendant’s first name “Dewayne.” The motion to dismiss is the
leading process of the case now under review, and in this pro se motion, the defendant spells his first name
“Dwayne.” This usage is the basis for the appellation used in the current style of the case.
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The defendant exhausted his opportunity to challenge his rape conviction via
a petition for post-conviction relief. See T.C.A. § 40-30-102 (c) (“This part contemplates the
filing of only one (1) petition for post-conviction relief. In no event may more than one (1)
petition for post-conviction relief be filed attacking a single judgment. If a prior petition has
been filed which was resolved on the merits by a court of competent jurisdiction, any second
or subsequent petition shall be summarily dismissed.”). Although a “petitioner may move
to reopen a post-conviction proceeding that has been concluded, under the limited
circumstances set out in [section] 40-30-117,” the defendant’s claim does not state a basis
for reopening his earlier post-conviction petition. As a 2009 post-conviction petition leveled
at the murder conviction, the present action is barred by the one-year statute of limitations.
See id. § 40-30-102(a).
We discern no other avenues for presenting the claim the defendant asserted
in his motion. Accordingly, we affirm the denial of the motion pursuant to Rule 20.
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
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