# FILED

September 9, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

FRANK CRITTENDEN, ) ) 03C01-9707-CC-00315 Appellant ) ) MORGAN COU NTY v. ) ) HON. E. EUGENE ELBEN CHARLES JONES, Warden, ) ex rel. STATE OF TENNESSEE ) (Habeas Corpus) )
For the Appellant : For the Appellee : Frank Crittenden, pro se John Knox Walkup M.C.R.C.F., No. 244405 Attorney General & Repor ter P.O. Box 2000 Wartburg, TN. 37887-2000 Timothy F. Behan Assistant Attorney Gener al 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN. 37243-0493 Charles E . Hawk District Attorney General P.O. Box 703 Kingston, TN. 37763-0703

OPINION FILED:_____________________ AFFIRMED WILLIAM M. BARKER, JUDGE1 The re cord is un clear as to which c ounts w ere includ ed in app ellant’s plea a greem ent.
2 The appellant

filedhis pro sepetition for a w rit of habea s corpu s prior to rec eiving perm ission to app eal to the s upre me cour t in the post -con viction proc eed ing. H is app eal in th at ca se is c urre ntly pending. Although not ra ised by ei ther side,we note that the appell ant’s habeas cor pus petit ion may run simultaneousl y wit h his appeal to the supre me court since the case s involv e separate and di stinct issues

. See Laney v. S tate , 826 S.W .2d 117, 1 18-19 (T enn. 199 2). 2 OPINION The appellant, Frank Critten den, appeals as of right the M organ County Criminal Court’s dismissal of his pro se petition for a writ of habeas corpus. W e affirm the judgment of the trial court

. On December 15, 1994, the appellant pled guilty to eig ht (8) counts of a thirty six (36) count indic

tment charging him wi

th aggravated rape, r

ape, and unlawful sexual contact with his daughter. 1 The trial court sen tenced a ppellan t to twenty- five (25) years for each of the eig ht counts, with four counts to be served concurrentl y and four counts to be served consecutively, for a total effective sentence of one hundred (100) years. No dir

ect appeal was taken from the tr ial court’s judgment. Appellant, thereafter, filed a petition for post-conviction relief alleging that, but for the ineffective assistance of hi s counsel, he would hav e filed a timely notice of appeal from the trial court’s sentencing order. This Court aff irmed the trial court’s finding that appellant had w aived his right to a direct appeal and upheld the di smissal of his post-conviction petition. See Frank Crittenden v. St ate , No. 01C01-9510-CR00344 (Tenn. Crim. App. at Nashv ille, Nov. 27, 1996), perm. app. granted (Tenn. No v. 24, 1997). 2 The appellant filed a pro se petition for a writ of habeas corpus on January 3, 1997, challenging the validity of his indictment. Relying upon this Court’s decision in State v. Roger Dale Hill , No. 01C01-9508-CC-00267 ( Tenn. Crim. App. at Nashvi lle, June 20, 1996), perm. app. granted (Tenn. 1996), appellant argued that the indictment was unconstitutional i n failing to include the re quisite mens rea

for the aggravated rape offenses. The trial court summar ily dismissed appella nt’s petition upon determining that the indictment contained sufficient language to inform the appellant3 Trial cou rts ma y sum mar ily dismiss a petition for a w rit of habea s corpu s if the petition fa ils to state a co gnizable c laim on its face. See Tenn. Code A nn. § 29-21-109 (Supp. 199 7).

4 The appellant

was charged wit h multipl e counts of rape a nd aggravated r ape that occurr

ed between the y

ears 1983 and November 4, 1993. Each count set f orth a date or a range of t ime in which the parti cular offe nse occurred. On th e rape counts t hat occurred bef ore 1989, the

appellant

was charge d with violating T ennes see C ode An notated S ection 39 -2-603 ( repeale d 1989 ). 3 of the rape charges. The trial court further ruled that any deficiency in the indictment did not re nder the judgment void, and any challe nge to the indictme nt should have been rais ed prior t o the swea ring in of the jury. We agree with the trial court’s decision to dismiss appell ant’s habeas corpus petition. 3 First, it is questionable whether the appellant can challenge his indictment in a habeas corpus proceeding. See State ex rel. News om v. Henderson , 424 S.W.2d 186, 189 (Tenn. 1968); Haggard v. State , 475 S.W.2d 186, 187 (Tenn. Crim. App. 1971); Brown v. State , 445 S.W.2d 669, 674 (Tenn. Crim. App. 1969). But cf. Archer v. State , 851 S.W.2d 157, 16 4 (Tenn. 1993) (stating that habeas corpus relief is available “only w

hen ‘it appears upon the face of the judg ment or the record of the proceedings upon which the judgment is rendered’ that a convicting cour t was without jurisdiction or authori

ty to sentence a defendant, or that a defendant’s sentence of imprisonment or other restr aint has expired”). Nevertheless, even when addressed on the merits, appellant’s claim must fa il in light of our supreme court’ s decision in State v. Hill , 954 S.W.2d 725, 729 (Tenn. 1997). In Hill , the Court upheld an indictment that is virtually

identical to the indictment in appellant’s case. On the counts of rape, appellant’s indi ctment stated in pertinent part: [O]n a day in ____, 4 in Davidson County, Tennessee and before the finding of this indictment, [ Frank Crittenden] did eng age in unlawful sexual penetration of [the victim] (Female, D.O.B. February 17, 1978), and force or coercion was used to accomplish the act, i n violation of Tennessee code Annotated § 39-13-503, and against the peace and dignity of the State of Tennessee. On the counts of aggravated rape, the indictment stated as f ollows:

[O]n a day in ____, in Davidson County, Tennessee and before the finding of this indictment, [ Frank Crittenden] did eng age in unlawful4 sexual penetration of [the v ictim] (Female, D.O.B. F ebruary 17, 1978), a child less than thirteen ( 13) years of age, in v iolation of Tennessee Code Annotated § 39-13-502, and against the peace and dignity of the S tate of Tennessee. The language in appellant’s indictment sets forth the statuto ry provisions making it a Class B felony for anyone to unlawfully sexually penetrate a victim with the use of force or coercion, Tenn. Code A nn. § 39-13-503(b), and a Clas s A Felony for anyone to unlawfully s

exually penetrate a v

ictim when the vict im is less than thirteen (13) years of age. Tenn. C ode Ann. § 39-13-502(b). Althou gh the mens rea for the rape offenses is omitted from the ind ictment, we conclude that it can be logically inferred from the nature and languag e of the charges. See Hill , 954 S.W.2d at 729. The indictment contains facts constituting each o ffense and provides sufficient notice of the charges as mandated by our constitution. Based upon the foregoing, we conclude that the indictment is valid and affirm the judgment of the trial court

.

___________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

____________________________ GARY R. WADE, Presiding Judge

____________________________ JOSEPH M. TIPTON, JUDGE