### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs A

ugust 22, 2001
LAWRENCE A. STRICKLAND v. JAMES BOWLEN, Warden

Appeal from the Circuit Court for Bledsoe County No. 2-2001 J. Curtis Smith, Judge

No. E2001-01236-CCA-R3-CD September 7, 2001

The petitioner, Lawrence A. Strickland, appeals the Bledsoe County Circuit Court’s dismissal of his petition for habeas corpus relief, which challenged his 1997 guilty-plea- based, Ro ane County conviction of aggravated sexual battery. Based upon our de novo review of matters of law, we conclude that the sentence imposed by the conviction court was void, altho ugh we rej ect the petitioner’s claim that the indic tment is invali d. We reverse the judgment of the lower court and grant habeas corpus relief in the fo rm of declaring the petitioner’s Roane County sentence void. Because the conviction re

sts upon a guilty

plea that, in

turn, was premised upon the agreed sentence being valid, we vacate the petitioner’s conviction and sentence. The conviction court shall afford the petitioner the opp

ortunity to withdra

w his guilty plea pur

su ant t o Tennessee Rule of Criminal Procedure 11(e)(4). Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed in Part, Reversed in Part

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J OSEPH M. T IPTONand J OHN E VERETT W ILLIAMS , JJ., joined. Lawrence A. Strickland, Appellant, Pro Se.
Paul G. Summers, Attorney General and Reporter; Patricia C. Kussma n, Assistant Attorne

y General; James Michael Taylor, D istrict Attorney G

eneral; James W. Pope, Assistant Dis trict A ttorney General; and Peter Martin Cough lan, Assistant Distr

ict Attorney Gene

ral, for the Appellee, State of Tennessee.

OPINION

On December 12, 1997, the petitioner pleaded guilty in the Roane County Criminal Courtto an offense of aggravated sexual battery that had occurred on or about Januar y 22, 1981. The plea disposedof a 1996 indictment that charged the

petitioner with two

1981 aggravated

rapes. The indictment upon which the resulting aggravated sexual battery conviction is based alleges t

hat,1 The reverse s ide of the indictment

refers t o the charged of

fense as “ aggravated r

ape.” The convi

ction court and the state general ly referred to t

he charged offense as “aggravated rape.” Prior to 199 2, the offense currently pros c ribed in Code section 39 -13-52 2, “rape o f a child,” w as classified as a category of aggra vated rap e. See Tenn. Code Ann. § 39-13-50 2(a)(4) (1991) (amended by Act of Apr. 23, 1992, ch. 878, §§ 1, 3 1992 Tenn. Pub. Acts 807, 808). Thus , in 199 2, t

he c ate gor y was remo ved and bec ame the basi s of the new “rape of

a child” s

ection 39-13- 522.
-2- during the specified 198 1 time frame, the p etitioner did “unla

wfully and intentio

nally sexually penetrate [the named victim], a person of less than (13) years of age,in violation of T.C.A. section 39-13-522, contrary to the form of the statute in such cases. . . .” See Tenn. Code Ann. § 39-13-522 (1997) (enacted in 1992

and captioned “r

ape of a child,”

proscrib ing as a

Class A felony “the unlawful sexual penetration of a victim by the defe

ndant or the defe

ndant by a victim, if

such victim is less than thirteen (13) years of age”). 1

In submitting a guilty plea to one count of aggravated sexual battery, the petitioner apparently acceded to the prosecutor’s statement that the parties had

agreed to proceed under

the current sent

encing consider

ations, in exchange for reduction of the charge from agg ravated rape to aggravated

sexual battery. We have agreed to recommend a sentence of twelve years. This will fa l l under the current sentencing guidelines, which require the sentence to be served at 100 percent, or no less than 85 percent. . . .
The conviction court accepted the plea and sentenced the petitioner to twelve years in the Department

of Correction. See Tenn. Code Ann. § 39 -13-504 (enact

ed in 1989 and proscribing as
a Class B felony “unlawful sexual contact with a victim by the defendant or the defendan t by a victim accompanied by . . . the [circumstance of the victim being] less than thirteen (13) years of age”); Id . § 40-35-112(a)

(1997) (establis

hing a sentencing

range of eight to

twelve years for Range I Class B felonies); Id . § 40-35-501(i) (1997) (providing that a person convicted of aggravated sexual battery shallserve 100 percent of his or her sentence before becoming eligible for release, subject to the application of a maximum of fifteen percent reduction).

On appeal, the petitioner

maintains that he is entitled to habeas corpus relief because (1) his sentence purs

uant to the 1989 sentencing law is void and (2) his conviction is voi

d because the indictment improperly invoked a statute that is inapplicable to 1981 conduct.

The legal issues raised are questions of law, and our revi

ew of questions of

law is de
novo
. Hart

v. State , 21 S.W.3d 901, 903 (Tenn. 2000) (“whether to grant the petition [for habeas corpus relief] is a ques

tion of law th

at we review d e novo”); State v . Hill , 954 S.W.2d 725, 727 (Tenn. 1997) (qu

estion of law revi

ewed on appeal de novo ). Based upon our de novo review, we
reverse the judgment of the lower court and declare void the petitioner’s sentence imposed by the Roane County Crimina

l Court.-3- I. The Sentence

In 1981, sexual offenses were governed by “The Sexual Offenses Law of 1979.” See Tenn. Co d e Ann. § 39-3701 (Supp. 1980) (repealed 1989). This act proscribed the offense of aggravated

rape, a Class X felony, which was defined as the “unlawful sexual penetration of another accompanied

by [the circumstance of the victim being] less than thirteen years of age.” See Tenn. Code Ann. § 39-3703 (Supp. 1980) (repealed 1989). The prescribed puni shment in 1981 for aggravated

rape was twenty years to life imprisonment. See id . The Code in 1981 also proscribed aggravated

sexual battery, a

Class X felony, whi

ch was defined a

s the unlawful “se

xual contact with another accompanied [by the circumstance of the victim being] less than thirteen years of age.” See Id. § 39-3704 (Supp. 1980) (repealed1989). The prescribed punishment in 1981 for aggravated sexual battery was a

term of imprisonment not less than five years nor more than 35 years. See id

. Pursuant to the “Class X Felonies Act of 1979,” sentences for Class X felonies were required to be determinate

in nature, were not subject to reduction for “good, honor or incentive or other sentence credit,” and terminated

or expired “only after service of the entire sentence day for day.” Id. § 39- 5403 (Supp. 1980) (repealed 1989).

In addition, th

e Tennessee Criminal Sentencing Reform Act of 1982 established sentencing by the trial judge in non-capital cases, as opposed to the prior law mandating sentencing by the jury. See Tenn. Code Ann. §§ 40-35-101 through -504 (1982) (repealed 1989). Even though the 1982 Act has been repealed, sentencing by the t rial judge has been retained via the Criminal Sentencing Reform Act of 1989. See Tenn. Code Ann. § 40-35-203 (1997).

Boththe 1982 and the 198 9 sentencing laws

recite that crim

es committed befor

e July 1, 1982 are punishable by the applicable pre-July 1, 1982 sentencing law. See Tenn. Code Ann. § 40-35-112(a) (repealed 1989); Tenn. Code Ann. § 40-35-117(c) ( 1997); see also Tenn. Code Ann. § 40-35-117, Senten

cing Comm’n Comments ( offenses commit

ted prior t o July 1, 1982 “were treated under thevery different indeterminate jury sentencing structure”). Furthermore, this court has held that crimes c

ommitted prior to

July 1, 1982, are e

xclusively

punished via jury sentencing under the applicable prior law. Turner v. State , 919 S.W.2d 346, 361 (Tenn. Crim. App. 1995); State
v. Harris , 678 S.W.2d 473, 476 (Tenn. Cri m. App. 1984); State v. Carter , 669 S.W.2d 707, 708 (Tenn. Crim. App. 1984); see William Andrew Dixon v. Flora

J. Holland , No. M1999-02494-CCAR3-PC, concurring op. at 1 (Tenn. Crim. App., Nashville, Nov. 17, 2000) (Hayes, J., concurring), pet. for perm. app. g ranted (Te nn. Apr. 30, 2001). Thus, the conviction court in this case was required to apply the applicable 1981 law in sentencing the petitioner.

Next, we consider the e

ffect of the fa

ilure of that cour

t to apply the proper

sentencing law. We know that a p etitioner, in order to obtain habeas corpus relief, must show t hat his confinement is the result of a void judgment or that his sentence has expired. See Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). We also know that the inval

idity of the senten

ce itself, as wel

l
as the broader invalidity of the co nviction, results in a void judgment and is a sufficient basis for habeas corpus relief. See Stephenson v. Carlton , 28 S.W.3d 910, 911 (Tenn. 2000). To support a claim for habeas corpus relief, however, the illegality of a sentence must be egregious to the point2 See n. 1, supra
. -4-

of voidness. Jerry L. Cox v. Sta te , No. E2000-02044-

CCA-R3-PC, slip op. at 3- 5 (Tenn. Crim. App., Knoxville, Apr. 17, 2001). Thus, the petitione r’s habeas corpus challenge to his sentence is ineffectual unless the flaw renders his sentence void. Id

. We have determined, however, that the flaw has precise

ly that effect.

In McConnell v. State , a post-convictio n relief case, o

ur su preme court held that a sentence that is beyond the statutorily authorized sentencing provisions of the 1989 sentencing law is void. McConnell v. State, 12 S.W.3d 795, 798-800 (Tenn . 2000). In McConnell , a proceeding under the 1989 sentencing act, the high court vacated the sen tence wh ich, according to the plea agreement,

was structured under the 1982 sentencing act. Id . at 796, 800. The court hel d that the sentences imposed via a plea agreement were “outside the trial court’s jurisdiction.” Id . at 798.

This court has previously interpreted McConnell to mean that McConnell’s sentence “was flawed because

the parties couched the computation as an illega l function of the 1982 Act.” William Boyd v. State , No. E1999-02179-CCA-R3-PC, slip op. at 5 (Tenn. Crim. App., Knoxville, Nov. 6, 2000) (emphasis in original). Thus, in light of Carter, Harris and Turner , th e petitione r’s attem pt in the present case to join a post-1989 sentence to a 1981 crime runs afoul of McConnell. McConnell

requires a conclusion that the Roane Cou nty court h ad no jurisdiction to impose a sentence pursuant to the 1989 sentencing law. Consequently, the s entence is void an

d is the proper subject of habeas corpus relief.
II. The Indictment

We must now consider w hether the indict

ment is a valid basis for a prosecution and convicti on in this case. The indictment effectively charged the petitioner with the 1981 rape of a namedfemale victim who was then less than thirteen years of age, and it alleged the conduct was in violation of Code section 39-13-522, the current “rape of a child” statute,despite that this particular Code section was not enacted until 1992. 2

The claim of a void indictment is an attack upon the trial court’s jurisdict ion and is justiciable in an action for habeas corpus relief. Hart , 21 S.W. 2d at 903; Dykes v. Compton , 978 S.W.2d 528, 529 (Te

nn. 1998). Again, o

ur review is de novo

. See Hart, 21 S.W.2d at 903.

In view of the provi sions of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 9 of the Tennessee Constitution guaranteeing the right of
a criminal defend

ant to be informed of the nature and cause of the criminal charge, the indictment in question may at first blush appear to be invalid. It alleges a 1981 offense as a breach of a 1992 statute. Certainly, the state would have been more prudent to have charged specifically a breach of the applicable 1981 proscriptive statute; however, we have concluded that the indictment employed in this case serves as a valid basis for a prosecution.-5- To be sure, an indictment must “provide sufficient information (1) to enable the accused to know the accusation to which answer is required, (2) to furnish the court adequate basis for the entry of a proper judgment, and (3) to protect the accused from double jeopardy.” State v. Hil l , 954 S.W.2d 725, 727 (Tenn. 1997). In Hill , however, our supreme court concl uded that , although the scienter

requirement for

aggravated ra

pe was not stated in

the indictment, the indictment
was valid, based upon it (1) satisfying the three aforementioned constitutional requirements, (2) complying w ith the not ice requirements of Code section 40-13-202, and (3) providing a basis for logically inferring the mental element of the crime charged. Id . at 726-27. The Hill court stressed that indictments should be scrutinizedfrom the vantage point of “‘common sense and right reason rather than from the narrow standpoint of . . . technicality or hair splitting fault finding.’” Id . at 728 (quoting United States v. Pu rvis , 580 F.2d 853, 857 (5 th Cir. 1978)).
Since Hill , the court has oft en repeated its i

ntention to

relax “common law pleading requirements

and its reluctance t o ele vate form over substance when evaluating the sufficiency of indictments.” See, e.g., State v. Hammonds , 30 S.W.3d 294, 300 (Tenn. 2000). In Hammonds , the court said, “Indeed, Hill

and its progeny leav e little doubt that indictments which achieve the overriding purpose of notice to the accused will be considered sufficient to satisfy both constitutional and statutory requirements.” Id .; see State v. Sledge , 15 S.W.3d 93, 94 (T enn. 2000); Crittenden v. State , 978 S.W.2d 929, 931 (Tenn. 1998); Ruff v. State , 978 S.W.2d 95, 100 (Tenn. 1998).

In this vein, but more p

ertinent to

the present case

, our supreme

court has upheld an indictmentthat charged incest in thelanguage of a repealed proscriptive statute, former Code section 39-4-306(a)(1). See Hart v. State , 21 S.W.3d 901, 904-905 (Tenn. 2000). Using the language of that erstwhile stat ute, the indictment alleged the defendant’s “carnal knowledge” of the victim. The statute applicable at the time of thecharge, Code section 39-15-302(a), required “sexual penetration” of the incest victim. The court compared the phrases “carnal knowledge” and “sexual penetration,” and based upon a dete

rmination that the f

ormer is in cluded within the latter, it held that Hart was afforded “plain, understandable notice that he was charged with the c rime of incest invo lving his stepchild, in violation of Tennessee law, during a specified period of time.” Hart, 21 S.W.3d at 905.

Similarly, in the present case, the indictment aff orde d the petitioner “plain, understandable

notice” that he was being charged with a violation of Tennessee law proscribing rape, aggravated

by the named victim being less that thirteen years of age, and that the offense occurred during a specific time frame in 1981. To be sure, the indictment ref ers to Code Section 39-13-522; however, that sectio

n, which pro scribes the sexual penetration involving a child less than thirteen years of age, emanated in 1992 from the 1989 aggravated rape statute, Code section 39-13-502. Prior to the 1992 amendment that created the new section 39-13-522 as an independent offense called “rape of a child,” the status of a rape victim being less than thirteen years of age was a category of aggravated

rape. See Tenn. Code Ann. § 39-13-502( a)(4) (1991) (amended 1992). As such, the aggravated

rape statute

contained essentially the same elements as did the crime of aggravated rape in 1981. CompareTenn. Code Ann. § 39-13-502(a) (1991) (amended 1992) with Tenn. Code Ann.3 Even though the law in 1 981 did not specific ally address t he circumst

ance of the vict im penetrat

ing the defendant

, as does t

he current law , the form er definition embra ced con duct that is inc luded w ithin activity that is embraced by the current definit ion, and via Hart , the curr ent all egations f

it withi n the narrower definit

ion.

4 Appa rently, the trial ju dge treate d it as surplu sage. See n. 2, supra
. -6- § 39-3703 (1980) (a

ggravated rape

is committed when the

defendant sexua

lly penetrates a

victim of less than thirteen years of age) (repealed1989). 3

Thus, the indictment sets for th the elements of t

he crime of aggr

avated rape as

it applied to the alleged conduct of the petitioner in 1981. The reference to the non -app licable Code section 39-13-522 may be treated as surplusage. See McCracken v. Sta te , 489 S.W.2d 48, 51 (Tenn. 1972) (it is not necessary that indictment state that the charged conduct is “contrary to a statute,” and reference to wrong proscriptive statute was properly treated by trial court as surplusage). 4 In short,
we hold that the prese

nt indictment meets

all constitutional and

statutory notice r

equirements and i

s a valid basis for a prosecution and resulting conviction.
III. Conclusion

In conclusion, we ho

ld that, although the

indictment is

valid, the sentence, which is the product of a plea-bargaining agreement, is void.

The remedy that we must apply is to vacate not only thesentence but the conviction
as well. The conviction resulted from a plea agreement that featured the agreed, but void sentence. The petitioner should resume his posture b efore the co nviction court, in which is pending an indictmentcharging him with two counts of aggravated ra

pe allegedly comm

itted in 1981 and in
w hich he has submitted a guilty plea; however, because the proffered sentence is not tenable, the agreement

must be deemed rejected. The petitioner must be afforded an opportunity to withdraw the plea in accordance with Tennessee Rule of Criminal Procedure 1 1(e )(4). If he does so and is unsuccessful i n arranging a substitute plea agreement, he shall stand trial on the indictment as interpreted in this opinion.

It does not fall

to this court to fathom why the petitioner, acting pro se , has fought so valiantly in the habeas corpus court and on appeal to place hi mself b ack in jeopardy of being convi ctedon two charges of aggravated rape, each of which carries a punishment ra nge of twent y years to life, without sentence credit or parole. Nevertheless, the petitioner has established his right to do so, and accor

dingly, we grant hi

m his requested appellate relief by reversing the action of the habeas corpus court.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE