# FILED
December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE NOVEMBER 1997 SESSION
JERRY COX, ) ) Appellant, ) C.C.A. No. 03C01-96 1 0-CR-0039 2 ) vs. ) Johnson County ) HOWARD CARLTON, WA RDEN, ) and STATE OF TENNESSEE, ) Honorable Ly nn W. Brown, Judge ) Appellee. ) (Habeas Corpus) )

FOR THE APPE LLANT: FOR THE APPELLEE: JERRY COX JOHN KNOX WALKUP Pro Se Attorney General & Repor ter Northeastern Correctio nal Center P.O. Box 5000 MICHAEL J. FAHEY, II Mountain City, TN 37683 Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 DAVID E. CR

OCKETT District Attorney General Rt. 199, Box 99 Johnson City, TN 37601

OPINION FILED: ____________________
AFFIRMED CURWOOD WITT JUDGE1 The record before us does not contain any information about the

underlying convi ctions, save the alleg ations of the petition, whic h we have taken as true for purposes of this appeal. 2 OPINION The petitioner, Jerry Cox, currently incarcerated in the Depar tment of Correction serving a twenty year sentence for a convi ction of attempted aggravate d rape and aggravated rape, 1 appeals the Johnson County C ircuit Court's denial of his Petition for the Writ of Hab eas Corpus. In his petition, Cox alleged the trial court lacked jurisdiction to convict him because the indictment failed to allege a culpable mental state. The lower court found that the matter should have been raised at a n earlier stage of the proceedings, and further, the law under w hich the petitioner was convicted did not require proof of a cul pable mental state. According ly, the lower court summarily dismissed the petition. It is from this determination the petitioner appeals, claiming the court er red by dismissing hi s petition without appointing counsel, allowing amendment and conduc ting a hearing, and likewise by fail ing to treat his petition in the alt ernative as one for post-convicti on relief. On review, we affirm the trial court's dismissal.

I

First, Cox clai ms the trial court erred in dismissing his petition without an evidentiary heari ng, appointment of counsel, or an oppo rtunity to amend. Cox misunderstandsthe procedural schemefor issuance of the writ of habeas corpus. To obtain habeas corpus relief i n this state, the peti tioner must submit an application to the proper court. See Tenn. Code Ann. §§ 29-21-101, -105, -10 7 (1980). The court must then review the petition and must dismiss it and refuse to issue the writ unless it indicates the petitioner 's conviction may be void. See Tenn. Code Ann. § 29-21-101, -109 (1980) . If the writ is refused ba sed on the failure of the petiti on to rai se a cog nizabl e claim for reli ef, any need for a hearing is obviously pretermitted because there is no justiciable issue before the court. See State ex rel. Byrd v. Bo mar , 214 Tenn. 476, 381 S.W.2d 280 (1963). Moreover,there is no requirement

in the Habeas Corpus Act th at a petitioner be affor ded appoi nted3

counsel or the opportunity to amend the petiti on. See generally Tenn. Code Ann. §§ 29-21-101 to-130 (1980 and Supp. 1996). Thus, the trial court did not err simply because it did not allow a hear ing, appointment

of counsel and an opportunity for amendment of the petition.

Turning to the issue of

whether the trial court correctly dismissed the petition, we hold that

the trial court’s rul ing is supported by s everal bases. Firs

t, it is well established challenges to the sufficiency of an indictment are not properly raised in habeas corpusproceedings. See, e.g. , Haggard v. State , 4 Tenn. Cri m. App. 620, 623-24, 475 S.W.2d 186, 187-88 (T enn. Crim App. 1971); Brown v. State , 1 Tenn. Crim. App. 462, 473, 445 S.W.2d 669, 674 (Tenn. Crim. App. 1969). The lower court implicity

found as much by determining C ox should have raised

his claim at an earlier stage. Cox 's attac k agai nst the indictment is not cog nizable in a habeas corpus proceeding.

Second, the meager record i n this case does not set forth the full indictment

containing all the counts with which the defendant w as charged. It is the
a ppellant’s duty to en sure that the recor d on appe al contai ns all of the evi denc e relevant to those issues which are the bases of appea l. T enn. R. App. P. 24(b); State v. Banes , 874 S.W.2 73, 82 (Te nn. Cri m. App. 1993 ); State v. Deborah Gladish , No. 02C01-9404-CC-00070 ( Tenn. Crim. App., Jackson, Novemb er 21, 1995), perm. app. denied (May 6, 1996) . In the absence of such a record,the affected issues are waive d. State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). “In the absence of an adequate record on appeal, this court must presume that the trial court’s rulings were supported by sufficient evidence.” Id.

Third, as meager as the record is, it does reflect that the defendant’s conviction was the result of a gui lty plea. This court has previously held, i n a postconviction context, that th e defendan t who pleaded gu ilty may not attack the indictment. Ronald Collier v. State , No. 02C01-9608-CC-00284 ( Tenn. Crim. App.,2 In his brief, Cox argues Roger Dale Hill is applicable to cases ar ising under the criminal law

as it existed prior

to the 1989 revisions to the Code because Hill says, "These concepts are not new in Tennessee." That statement from Hill , however, is found in the court's discussion of the n ecessity of an indictment which alleg es all the essential elements of the offense charged and the necessity of a lawful indictment as a prerequis ite to prosecution. Roger Dale Hill , slip op. at 7. As such, w e are unpersuaded.

4 Jackson, April 7, 1997), perm. app. denied (Tenn. 1997). A plea tha t is enter ed volunt arily, und erstand ingly a nd i ntelligently constitutesa waiver of all pro cedural and constitutional defects in the proceedings that may have occurred prior to the entry of the plea . .

. . Thus, the petitioner has w aived this iss ue and he cannot now complain that the indictment w as defective. Ronald Collier , slip op. at 3. See also State v. Preston C arter , No. 02C01-9601-CR00002, slip op. at 9 (Tenn. Crim. App., Jackson, May 2,, 1997) (appl ying theguiltyplea waiver rule to de

fects in an indictment). Accor ding ly, th e defendant in the present case has waived the claim he now makes.

Fourth, noting that the defendant bases his claims upon holdings of this court in State v. Roger Dale Hill , No. 01C01 -9508-CC-000267 (Tenn. C rim. App., Nashville , June 2 0, 1996), perm. app. granted (Tenn., Jan. 6, 1997), and Nathaniel Whit e v. State , No. 03C01-9408-CR-00277 ( Tenn. Crim. App., Knoxvil le, June 7, 1995), we find, apart from the fact that Roger Dale Hill was reversed, see State v. Roger Dale Hill, Sr ., ---S.W .2d---, No . 01S01- 9701-CC- 00005 (T enn. Nov. 3, 1997), that both Roger Dale Hill and Nathaniel W hite were ca ses that turned upon the language of the 1989 revisions to the criminal code, specifically Tennessee Code Annotated section 39- 11-30 1(b), a provision that was not contained in the code prior to 1989. See Tenn. Code Ann. § 39-11-301(b) (1997). The defendant was convicted in 1987. The rationale employed in Roger Dale Hill and Nathaniel White is not available to the defendant in this case. Curtis Newbern
v. State , No. 02C01-9702-CR-00071, slip op. at 2 (Tenn. Crim. App., Jackson, July 1, 1997) (Tenn. R. Ct. Crim. App. 20 Order). Also, in Roger Dale Hill and Nathaniel White , the indictment challenges were made on dire ct appeal, not in a habeas corpus proceeding. According ly, Hill and White are not controllin g. 2 See Curtis Newbern , slip op. at 2.5 Accordingly, w

e find the trial court corr ectly dismissed the peti tion.

II Cox also argues the trial

court should have treated his petition as one forpost-conviction rel ief. He fails to address, how ever, the statutory ba r

to such an action. According to his all egations, he p leaded g uilty and received his sentence
on March 9, 1987. He does not allege his c ase was appealed. As such,his three year statute of limitations has long since expir

ed. See Tenn. Code Ann. § 40-30- 102 (repealed 1995). Further, he states no basis for allowing untimely consideration of a post-conv

iction cla im. Additionally, Cox was convicted in Sullivan County. His petition was filed in Johnson County, the proper venue for habeas corpus relief

but not post-conviction rel ief. Compare Tenn. Code Ann. § 40-30-204(a) ( 1997) (postconviction petition shall be filed in court where conviction occurred) with Tenn. Code Ann. § 29-21-105 (1980) (petit ion for writ of habeas corpus shall be filed in court "most convenient in point of distance" to the petitioner unless a sufficientreason is given in the petition). The low er court did not

err in failing to consi der the petition as one for

post-c onvict ion rel ief.
The judgment of the trial court i s affirmed.

____________

________________

____ _ CURWOOD WITT, JUDGE

CONCUR:

_______________________________ JOSEPH B. JONES, PRESIDIN G JUDGE

_______________________________ PAUL G. SUMMERS, JUD GE6