# FILED
September 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE AUGUST 1998 SESSIO N

CARL EUGENE JORDAN, ) ) C.C.A. NO. 01C 01-9711-CR-00528 Appellant, ) ) DAVIDSON COUNTY VS. ) ) HON. SETH NORMAN, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction & Petition for Habeas C

orpus Relief)

FOR THE APPE LLANT: FOR THE APPELLEE:
CARL EUGENE JORDAN, Pro S e JOHN KNOX WALKUP (On Appeal) Attorney General & Repor ter DEANNA

BELL-JOHNSON LISA A. NAYLOR 211 Third Ave., North Asst. Attorney General Nashville, TN 37201 425 Fifth Ave., North (At Hearing) Nashville, TN 37243 VICTOR S. JOHNSON, III District Attorney General STEVE DOZIER Asst. District Attor

ney General Washington Square Bldg., Suite 500 222 Second Ave., North Nashville, TN 37201-1649

OPINION FILED:

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

On January 23, 1981, the petiti oner pled guilty to aggr

avated rape, armed robbery, and second-degr ee murder. He was then sentenced to thr ee concurrent forty year sentences. On May 2, 1986, this Court granted the petitioner post-conviction relief and vacated theguilty plea on a finding that the trial court had failed to fully comply with required procedure in a determination of whether theguilty plea was made knowingly and voluntari ly. State v. Jordan , No. 85-265-111(Tenn. Crim. A pp. at Nashville, May 2, 1986).

On September 23, 1986, the petitioner again pled guilty to agg ravated rape, armed robbery, and second-deg ree murder and was sentenced to three

concurre nt thirtyfive year sentences purs uant to a plea bargain agreement . On May 5, 1996, the petitioner

filed a second post-convic tion petition alleging

ineffective assistance o f counsel and ex post facto application of a s entencing law. The petition further allegedthat th e petitioner’s plea to second-degree murder was not knowing a nd his plea to aggrav ated rape was involuntary

and unknowing. The petiti oner amended this petition on December 11, 1996, alleging ineffectiv e assistance of counsel on the g rounds that pe titioner’s counsel failed to inform him that he could choose between t wo diffe rent sent encing laws and further alleging

that the State failed to file notice of its intent to seek enha ncement of the punishment . In December of 1996, the petitioner filed a petition for writ of habeas corpus alleging that the indictments for aggravated rape, murder, and armed robbery
were fatally d efective and obtained upon void and defectiv e affidavits of complaints and warrants. Lastly, on March 24, 1 997, the petitioner filed a motion to amend and add to his original petiti on for post-conviction re lief. This motion movedto strike and expu nge from the original petition the grounds of ineffective assistance of couns el and of unknowing an d invo luntary guilty plea. The motion also added the alleg ation that the petitioner’s sentence is void on the g rounds that theState did not abide by th e terms

of the plea agreement. Upon the State’ s motion, the trial court dismi ssed petitioner’s3

petition for post-conviction re lief and writ of habeas corpus . The petitioner now appeals and argues that the trial court erred when it dismissed his petition for post -co nviction reliefand writ of habeas c o rpus. We disagree and aff irm the judgment of the court below.

When petitioner pled guilty on September 23, 1986, a three year

statute of limitationswas in effect r egarding post-conv iction petitions. T.C.A. § 40-30-102 (repealed 1995). This statute of limitations st arted to run when the judg ment against the petitioner became final in October of 1986. State v. Mo o re , 814 S.W.2d 381, 382 (Tenn. Crim. App. 1991). As the petitioner’s post-con viction petition w

as filed after

October 1989, the statute of limitations had run and his petition is barred.

Petitioner

argues that

his petition is not barred by the statute of limitations because it is a motion to reopen his prior post-conviction petition filed on Aug u st 17, 1984. This argument

is without merit. A petitioner may file a motion to reopen the first post-conviction petition but only in the limited circumstanc es set out in T.C.A. § 40-30- 217 (1997). The petitioner has al leged nothing that would bring his petition within those limited circum stances

entitl ing him

to reope n his fir

st petition for post-con

victi on reli ef.

Petitioner

also appeals the trial cou rt’s denial of his wr it of habeas corpus in which petitioner all eges the i ndictments were fatally defective. This argument is without merit as it hasbeen waived. It is the duty of the appellant to prepar e a record that conveys a fair, accurate and complete account of what transcribed in the trial court with respect to the issues which for m the ba sis of the appeal. Tenn. R. App. P. 24 (b). In addition, this Court has

held that an appellate court c annot consider

an issue which is not preserved in the rec ord for re view. State v. Banes , 874 S.W.2d 73, 82 (Tenn. Crim. App. 1994). As the petitioner di d not include the indictments i n the record, any complaint s pertaining to those indic tments are waived.1 This Court has hel d those offenses t hat occurred af ter November 1, 1989, are to be governed by our Supreme Court’ s rulin g in State v. Hill , 954 S.W .2d 725 ( Tenn . 1997). See Orren v. Carl ton , No. 03C0 1-9704 -CR-0 0141(T enn. Cr im. Ap p. at Knox ville, filed Feb. 13 , 1998); Barrett v . Compton , No. 02C01-9612-C C-00462 (Te nn. Crim. App. at Jacks on, filed April 9, 1997). 4 Furthermore, even if the indictments had been includ ed in the record, the petitioner’s argu ments would still fail. H abeas corpus relief is only available when a conviction is void because the conv icting court was without jurisdicti on or authority to sentence the petitioner

or petitioner’s sentence has expired. Archer v. State , 851 S.W.2d 157, 164 (Tenn. 1993). Petitioner contend s the indi ctments are fata lly defec tive because they did not contai n the req uisite mens rea deprivi ng the trial court of jur isdiction. Although this is a proper basis for a writ of habeas corpus, the petitioner has alleged nothing that would entitle him to habeas corpus reli ef.

In determ ining w hether an indictment is sufficient , it must first be determined whether

the crime occurred under the ol d or the new criminal c ode. In the presentcase the petitioner’s offense occu rred in 1981, well before the enactment of the
new criminal code on November 1, 1989. 1 Since the indictments chall enged by petitioner
were returned under the old cri minal code, the prevaili ng law at that time g over ns this case. Wh en petitioner was indicted in 198 1, Tennessee law required the fo llowing:

[t]he indictment must state the facts constitu ting the offense in ordinary and concis

e language, without pr

olixity or repetition, in such a manne r as to enable a pe rson of commo n understandi ng to know what is int

ended, and with that degree of certainty which will enable the court,on conviction, to pronounc e the proper judgment . . . . T.C. A.§ 40-1802 (now codified at § 40-1 3-202). In a ddition, the

Tennessee Supr

eme Court reviewed such stat ute and held that recitation of the st atutory language regarding the offense charged gives rise to the presumption that the indictment sufficiently apprises the defendant of the mental element required. Campbell v. State , 491 S.W.2d 359, 361 (Tenn. 1973).

The first-degree murder indictment of the petitioner, assuming his brief is5

correct as that is the onl y recitation of the indic

tment in the record, charg es Carl Eugene Jordan a/k/a C arl hadley [sic] her

etofore to wit, on the 11 [sic] day of July, 1980 and prior to the date of this indictment with force and ar ms, in the custody aforesaid, unlawfu lly, felon iously, will fully, de liberate ly, malicio usly, and in th e perpet ration of or attem pt to perp etrate a bulgrary, [sic] did make an assault upon the body of one, Bobb y H. Reeves, and . . ., the sai d . . . Carl Eugene Jorda n a/k/a Carl Hadley, then and the re unlawfully, felonious ly, willfully , deliber ately, malici ously a nd in the prepetr ation [s ic] of of [sic] the attempt to perpetrate a burglary, did kill and murder the said Bobby H. Reev es, in violation of Tennessee C ode Annotated §39-2402 and against the pea ce and dignity of the state of Tennessee. Petitioner

argues that because this indictment does not include the term “premeditation” it is fatally flawed, depr

iving the sentencing

court of jurisdiction

over the petitioner

and the subject matter.

The statute under which the petitioner was charge d was T.C.A. § 39-2402 (repealed 1989). The statute stat ed (a) Every murder perp etrated by mean s of poison, lying in wait, or by other

kind of willful, deliber

ate, malicious, and premeditated killing, or committed in the perpetrati on of, or attempt to perpetrate, any murder in the first degree,arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or the unlawful throwing , placing or discharg ing of a destructive device or bomb, is murder in the first degree. T.C.A. § 39-2402 (repealed 1989).

The petitioner contends that sin ce the statute includes the term “preme ditati on”, it is an element of the offense and must be all eged in the indictment. This contention is without mer it. Premeditation is not an element of first-degree murder where fe lony m urder is being charg ed. See State v. Hopper , 695 S.W.2d 530, 535 (Tenn. Crim. App. 1985). In the pe titioner’ s case, the murder occurred during the commission of a r obbery and arape, therefore constituting felony murder. As premeditation is not an element of first-degr ee murder when such murder o ccurs during the commission of a robbery or a rape, it was not necessary to in clude the term6

premeditation in the indictment against the petitione r.

The petitioner also contends that the indic tment charging him with aggravatedrape was fatally defective because it contained language of a factual content wholly diff erent and inconsistent with the ensuing circumstances as they related to the events that unfolded d uring the a lleged offense. Th e aggravated rape indi ctment, according to petitioner’s brief, reads:

Carl Eugen e Jordan a/k/a Car l Hadley . . . on the da y and year aforesaid . . . unlaw fully, forcibly or w

ith the use of coercision [sic] di d sexually penetrate on e Fredia Reeves . . . the said Lewis Eugene Cobitt [sic] and Carl Eugene Jordan a/k/a Carl H adley Aiding or Abetti ng each other in/the [sic] act of sai d sexual penetration and w hile the said Lewis Eugene C orbitt and/or Carl Eug ene Jordan a/k/a Car l Eugene Ha dley were ar med with a deadly weapon, to wit, a pis

tol . . .

The petitioner argues that s ince the “record i s absolutely barren of evi dence, of any kind, depicting th e necessary elements needed for s upporting an indictment

of ‘Aiding and Abetting’” the indictment is fatally defective. The petitioner was indicted under T.C.A. § 39-3703 (repealed 1989), which states:

(a) Aggravated rape is unlawful sexual penetration of another accompanied by any of the following circumstances: (1) Force or coercio n is used to accomplish the ac t and the defendant is armed with a weapon or any article used or fashioned in a manner to lead the v ictim reasonably to beli eve it to be a weapon; (2) The defenda nt causes per sonal injur

y to the vi ctim; (3) The defendant is aided or abetted by one or more o ther persons; and (A) Force or coercion is used to accomplish the act T.C.A. § 39-3703 (repealed 1989).

Petitioner

was also indicted under T.C.A. § 39-109 (repealed 1989), as an aider and abettor. Such statute states that “[a]ll persons present, aiding and abetting, or ready and consenting to aid and abet, in any criminal o ffense, shall be deemed principal7

offenders, and punished as such.” T .C.A . § 39-109 (repealed 1989). Petitioner’s contention is that there is not enough evidence in the record to convi ct him as an aider and abettor. It is well -settled law that habeas corpus and post-conviction proceedings are not available to test the sufficiency of the evidence at the original trial, nor to inquire into
or determine the questi on of guilt or innocence, nor to test the competency or incompetency of original trial w itnesses. Shepherd v. State , 533 S.W.2d 335, 338 (Tenn. Cri m. App. 1975); see also Myers v. State , 462 S.W.2d 265, 267 (Tenn. Crim. App. 1970). Therefore, petitioner’s contention thatthe evidence was ins ufficient to support a convic tion for aggra vated r ape is no

t a prope r basis

for post -convi ction r

elief.

The petitioner further contends that the indictment

charging petitioner

with aggravatedrape failed to recite expl icitly the facts whi ch constituted t he all eged crime. Ac cording to the petitioner, this fail ure renders the indictment fatal ly defective. Thi s contention is without merit. T he indictment charging petitioner with agg ravated rape stated the facts constituting ag gravated rape in ordinary language such that a person of
common understanding would know the crime charged and wit h enough certainty to enable a court to pronounce proper judgment upon c onviction. As such, the indictment
was sufficient under the applicable s tatutory standard. See T.C. A. § 40 -1802 (now codified at § 40-13-202).

Petitioner

also challenge s the indi ctment c harging hi m with arme d robbery. Petitioner

alleges th e indictm ent is fa tally def ective and should be set aside because it does not include the term “forcible.” The indictment charg in g petitioner with ar med robbery is set out in petitioner’s Reply Brief and states:

On the 11 day of July, 1980, i n the County aforesaid, that (he), has probably [ sic] caus e to belie ve that Car l Hadley a/k/a Carl Eugene Jordan un lawfully and feloniously did make an assault upon the body of one F reda M. Reeves, and did then and there unlawfull y and feloniuosly [sic

] put (her) in fear and danger of (h er) life, and then and there unlawfully, feloniuosly, [sic] and violently did steal, take,8 and carry away fr

om the person and against the w ill of the said Freda M. Reeves certain personal property, to wit, approximately

$15.00 i n foo [si c] stamp s of the v

alue of $15.00 the personal property of the said Freda M. Reeve s, said robb ery being ac complish ed by the u se of a de adly weapon, to wit, a pis

tol . . . .

In order to determine the suffici ency of this indictment it is nec essary to review the statute under which petitioner was in di cted. Petitioner was i ndicted under T.C.A. § 39-3901 (repealed 1989), which states:

(a) Robbery is the feloni ous and forcible taking from the person of another, goods or money of any value, by violence o r putting the perso n in fear . Every perso n convicte d of the crime of robbery shall be imprisoned in the penitentiary not less than five (5) nor more than fifteen (15) years; pr ovided, that if the robbery be accomplished by the use of a deadl y weapon the punishment shall be death by electro cution, or the jury may

commute the punishment to imprisonment for life or for any period of time not less than ten (10) years.

This Court has held that “[a]n indictment for a statutory offense nee d only describe the crime in the words o f the statute or through words substituted which are equivalent

to the words used in the statute or of more extensive signification.” Patty v. State , 556 S.W.2d 776, 780 (Tenn. Crim. App. 1977). In fact, the Tennessee Supr eme Court has held the words “forcibly” and “violently” are synonymous. Mendolia v. State , 241 S.W.2d 606, 611 (Tenn. 1951). The Tennessee Supreme C ourt has also held an indictment

charging robbery is not rende red defe ctive by the use of th e word “viole ntly” instead of the word “forcibly.” McTigue v. State , 63 Tenn. 313 (1874). I n lig ht of the foregoing, the indictment ch arg ing petitioner with armed robbery was sufficient where “violently” was used in place of “forcibly.”

Petitioner’s final co ntention in his writ of habeas corpus is that the indictmentsagainst him were gained upon voi d and defective affidavits of complai nts and warrants and are therefore void. These cont entions are without merit. Habeas corpus9

reliefis available onlyupon a showing that a conviction is void or the petitioner’s sentence has expired. Archer v. State , 851 S.W.2d 157 (1993). The petitioner has al leged nothing that would entitle him to habeas corpus relief. Furthermore, it is well settled law that all questionsas to the sufficiency of a warrant are foreclosed by the finding of an indictment. Jones v. State , 206 Tenn. 245, 256-57, 332 S.W.2d 662, 667 (Tenn. 1960); se e also State v. Southland News Co., Inc. , 587 S.W.2d 103, 105 (Tenn. Crim. App. 1979). The Tennessee Supreme Court has also s tated “it would be a

miscarriage of justice to hold that when the probabi lity o f the comm ission

of a crime has been called to the at tention of the grand jury by

either a defective or ev en a void warran t, the grand j ury would be powerless to inves

tigate the situation further and to find a valid indictment for whatever offense or

offenses their investigation might develop.” Jones , 332 S.W.2d at 667. This reasoning is also applicable to petiti oner’s claim that defectiv e complaints renderedthe indictments against him v oid. As such, the indictments against the petitioner ar e valid.
Petitioner has also filed a reply brief with this Court alleging the trial court
was without jurisdiction to dismiss his petition for post-convic tion relief and writ of

habeas corpus, and the trial court committed reversible error

when counsel was al lowed t o withdraw from petition er’s case without f iling a motion to withdraw or informing the court of such with drawal. I t is well-settled that a post-conviction petitioner may not raise grounds on appeal that were not charg ed in the petition for post-conv iction relief or

the amended petition. Long v. State , 510 S.W.2d 83, 85 (Tenn. Crim. App. 1974). As the aforementioned grounds were not included in the original peti tion f or post-conviction r elief or the amended petition, this Co urt will not rev iew the merits of these all egations.

In sum, we agree with the court below that the petitioner’s petition for postconviction relief was barred by the statute of limitations and that his writ of habeas corpus failed to state grounds upon which relief could be granted. Further, there is no allegation in the petition for post-conviction relief that would allow thepetitioner to reopen pursuant1 0

to T.C.A. § 40-30-217 (1997).

The denial of the petition and wr it of habeas corpus is affirmed.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ THOMAS T. W OODALL, Judge

______________________________ L. TERRY LAFFERT Y, Special Judge