# FILED
July 1, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON
CURTIS NEWBERN, ) ) Petitioner, ) C. C. A . NO. 02C01-9 702-CR-00071 ) vs. ) SHELBY COUNTY ) STA TE OF TENN ESSEE, ) No. P-17662 ) Respondent. )

O R D E R

This matter is before the Court upo n the state’s mot ion to affirm the judgment of the tr ial court und er Rule 20, R ules of the Court of Criminal Ap peals. The record was filed on Febr uary 20, 1997, and the petitione r filed his br ief on April 17, 1997. The petitioner

was ori ginally

indicted for ag gravated rape in May 1987, and was subsequently found guilty of the sam e. This Court affirme d the conviction and sentence on direct appeal

. State v. Curtis Newbern , No. 70 (Tenn. Crim. App., at Jackso n, July 5, 1989). Thereafter, the petitioner filed a petitio n for post-conv iction rel ief. The trial court denied the petition and thi s Court affirmed that judgment on appeal

. Curtis Newbern v . State , No. 02C01-910 6-CR-00143 (Tenn. Crim. App., June 10, 1992).

On October 29, 19 96, the petitioner filed what i s styled a petition for w rit of habeas corpus. The pe titioner claimed that the judgme nt entered against him is void because the indi ctment failed to al lege the mens r ea of the offense charged. The trial court treated the pleading a s a petition for post-convi ction reli ef, pursuant to T.C.A . § 40-30-205(c) , and denied rel ief on December 12, 1996, stating that the petitio n was filed outside the statute of limitat ion. In the present appeal, the petitioner cont ends that the trial court erroneous ly treate d the petition as one for post-conv iction rel ief and requests th is Court to

remand the matter for

a hearing on his habeas corpus claim. The petitioner relies upon State v. Roger Dale Hill , No. 0 1C01- 9508-C C-002 67 (Tenn . Cri m. App. June 20, 1996 ), in support of his contention on appeal that the indictm ent is fatal.2 Initially , we note that

the petitioner

did not timely

file his noti ce of appeal. The trial cour

t’s order w

as entered on December 12, 1996, but th e notice of appeal was not filed until January 29, 1997. In the inter est of justice, however , we have decided to waive the timely filing of the noti ce of appeal. See T.R.A.P. 4(a)

.

Nonetheless, having reviewed the state’s motion in light of the entire record on appeal , we concl ude that the motion i s well-taken and should be granted. Under either

guise, the petitioner’s

pleading i s without merit. If it i s considered a petition for post -convic

tion relief, as

the trial court concluded, the petitioner would be denied relief by

the statute of li mitation. See T.C.A. § 40-30-202. Moreover, it is well established that

challenges

to the sufficiency

of an indictment can not be tested in a habeas corpus pr

oceeding. See Haggard v. State , 475 S. W.2d 186, 187 (Tenn. C rim. App. 1971); Brown v . State , 445 S.W.2d 669, 674 (Tenn. Crim. App . 1969). A panel of this Court recently held the same in a capital case. Barber v. State , No. 01C01-940 8- CR-00281 (Tenn. Crim. App., Feb . 23, 1995).

The petitioner’s

claim, however, is

otherwis e without mer it. Hill represents a direct appeal from a case involving an indictment rendered subsequ ent to the 1989 revisi ons to the Cri minal Code. C onversely , the appeal in t he present case stems from a denial of a petiti on for post-conv iction rel ief and involv es an indictment issued prior to the 1989 changes in the Code. The opi nion in Hill was based upon this Court’s interpretati on of T.C.A. § 39-11- 301(c), w hich was enacted in 1989. That statute provides, in pertinent part, that “[a] culpa ble mental state is required within this title unless the definit ion of the offense plainly dispenses w ith a mental element .” Prior to 198 9, ho wever, the C rimin al Cod e did not c onta in a co mpa rabl e sta tute . Acco rdin gly, the decision i n Hill does not control our revi ew of the iss ue raised here in.

At the time of the offense in this case, ag gravated rape was defined as the “unlaw

ful sexual penet ration of another accompanied” by certain enumerated aggravating cir

cumstances, inc luding that the victi m is less tha n thirteen (13 ) years old.3

T.C.A. § 39-2-60 3 (1982). The in dictment at iss ue before us charg ed that the petiti oner did “unlaw

fully and feloni ously sex ually penetr ate [the vic

tim], a female less

than thirteen (13) years of ag e.” This lang uage was sufficient under the law as i t existed at the time. As note d above, the C riminal Codedid not contain a provis ion similar to § 39- 11-301(c) ( 1989). The statutor y requi rements for an indi ctment were found in § 40- 1802 (now § 4 0-13-202 (1990) ), whic h provided simply that :

The indictment mu st state the facts constitu ting the offense in ordinary and concise l anguage, w ithout proli xity or repetiti on, in such a manner as to enable a pe rson of common u nderstanding to know what is intended, and w ith that degree of certainty which w ill enable t he court, on convicti on, to pronounce th e proper judg ment.
Furthermore, in Campbell v. State , 491 S.W.2d 359, 361 (Tenn. 1973) (emphasis suppl ied), whi le addressingthe sufficiency of an indictment cha rging t he off ense of murder, our Supr eme Cou rt state d the f ollowing:

While it seems clear that t he indictment i n Witt was insufficient in that it failed to charge an el ement, that the murder was committ ed unlawfully , in either t he language of the statute or common law or words of equivalen t import, the dec ision is confusing because of the language, ‘fatally defecti ve in omitt ing the charge that the offense was committed feloniously, or wit h malice aforethoug ht; and containi ng no wor ds of equivalent import.’ It is clear , however, that had the indictm ent used the words ‘fel

oniously’ or ‘unla wfully’

, it would have be en sufficient. We agree with this pr

oposition. By

containing the words found in the languag e of the statute, the indictmen t at issue here sufficien tly apprised the appellant of th e offense charged under

the law at

the time, and is

therefore val id. See State v. Di son , No. 03C01-9602-CC-00051 (Te nn. Crim. App., Jan. 31, 199 7). Thus, the petitioner’s atta ck must fail.
For the reasons stated above, it is hereby ORDERED, pursuant to Rule 20, Rules of the Court of Criminal Appeals, that the judgmen t of the trial court dismissing the petition for writ of habea s corpus is affirmed. Costs of this appeal shall be assessed against the petition er.

Enter, this t he ___ day of June, 1997.4 __________________________________ DAVID G. HA

YES, JUDG E

__________________________________ JOE B. JONES, PRESIDING JUDGE

__________________________________ JOE G. RILEY , JUDGE