# FILED
September 9, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUA RY 199 8 SESSI ON

RONALD WILLIA MS RICE, ) ) No. 03C01-9707-CR-00279 Appe llant, ) ) Morga n Cou nty vs. ) ) Honorable E. Eugene Eblen, CHARLES JONE S, WARDEN, ) Judge ) Appellee. ) (Habeas Corpus)

FOR THE APPELLANT: FOR THE APPELLEE: PRO SE JOHN KNOX WALKUP Attorney General& Reporter TIMOTHY F. BEHAN Assistant Attorney General Cordell HullBldg., Second Fl oor 425 Fifth Avenu e, North Nashvill e, TN 37243-0493 CHARLES E. HAWK, JR. Distri ct Attor ney General FRANK HARVEY Assistant Distri ct Attor ney P. O. BOX 703 Kingston, TN 37763

OPINION FILED:____________________

AFFIRMED

WILLIAM B. ACREE, J R. SPECI AL JUDGE1 Before th e Suprem e Court’s rev ersal o f Hill , this issue was addressed by this Court several times.See Hatton v. State , (No. 02C01-9611-CC-004 07, Tenn.Crim.App., filed February 19, 1997, at Jackson; Smith v. Compton (No. 02C01- 9701-CC-00018, Tenn.Crim.App., fil ed April 3, 1997, at Jackson; Gooch v. Compton (No. 02C01-9612-CC-00465, Tenn.Crim.App., filed March 13, 1997, at Jackson; Smith v. Hessing , (No. 02C01-9708-CC-003 11, filed December 11, 1997, at Jack son; Nowell v. Compton (No. 02C01-9612-CC-00464,Tenn.Crim.App., filed April 9,1997, at Jackson. In these cases, w e held that the petitioners cou ld not rely upon Hill because (1) the sufficiency of an indic tment cannot be tested in a habeas cor pus proceeding, (2) Hill applies to crimes committed a fter the 1989 amendments to the criminal code, and (3) if Hill did apply, the indictments in these cases were sufficient under the law exi sting at the time. The facts in Nowell v. Compton are similar to the facts her ein. We held: “The indictments at issue before us charged that the petitioner "did unlawfully and feloniously sexually

penetrate [the victim, a pe rson] less than thirteen ( 13) years of age" and "did unlawfully and feloniously have sexual contact with [the victims, persons] less OPINI ON The appe llant, Ro nald W illiams R ice, ap peals as of rig ht the tria l court’s dismiss al of his pe tition for a writ of h abeas corpus . We affirm the tria l court.
In 1992, the appellant entered a plea of guilt y to a cri minal information charging hi m with aggravated rape which was committed in 1983. He was sentenced to f ifteen years as a Range 1 standar d offender. He filed a p etiti on for post-co nvi cti on reli ef i n 199 3, b ut v olu nta ri ly

dis mis sed thepet it ion thesame year.

The first

issue presented for rev iew is t hat the in dictments di d not all ege a culpa ble m ental s tate an d is the refore invalid. T he ap pellan t relies u pon th is Court’s deci sion in State v. Rog er Da le Hill , (No. 01C01-9508- CC-00267 (Tenn.C rim.App.), filed June 20, 1996, at N ashville).
The criminal information against petitioner r

eads as follows: “Joseph D. Baugh, bei ng the duly el ected Distr ict Attorney General for Willi amson County, Tennessee, act ing under the authorit y of Section 40-3- 103, Tennessee Code Annotatat ed, in Apri l of 1992 before the f inding of

this pres entment, present that Ronald W. Rice, hereto fore, to w it, in Feb ruary o f 1983 , before the find ing of th is prese ntme nt, in sa id Cou nty and State u nlawfu lly and fe loniou sly did engage in unlawf ul sexual penetrati on of a male chil d whose date of birth i s January 15, 197 1, being a chi ld under the age of thi rteen years, i n violat ion of Tennessee Code Annotated, Section 39- 13- 502.”

The appellant’ s reliance upon this case is misplaced. This decisi on was reversed by t he Supreme Court in State v. Hill , 954 S.W .2d 725 (Te nn. 1997). 1than thirteen (13) years of age." This language w as sufficient under the law as it existed at the time. As noted above, the C riminal Code did not contain a provision similar

to § 39-11-301 © (1989). The statutory requirements for an indictment were found in § 40-1802 (now § 40-13-202 ( 1990)), which prov ided simply that: The indictment must state the facts constituting the of fense in ordinary and concise language, without pr

olixity or repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enabl e the court, on convicti on, to pronounce the proper judg ment. Furthermore, in Campbell v. State , 491 S.W.2d 359, 361 (Tenn. 1973) (emphasis supplied), w hile addressing the sufficien cy of an indictment chargi ng the offense of murder, our Supreme Court stated the following: While it seems clear that the indi ctment in Witt was insufficient in that it failed to charge an element, that the murder was committed unlawfull y, in either the lang uage of the statute or common law or words of equivalent import, the decision is co nfusing because of the language, 'fatally defective in omitting the charge that the offense was committed feloniously, or w ith malice aforethought; and conta ining no words of equivalent import.' I t is clear, howev er, that had the indictment used the words 'feloniously' or 'unlaw

fully', it would hav

e been sufficient. We agree with this proposition. By containing the words

found in the language of the statute, the indictments at i ssue here sufficiently appri sed the appellant of the offense charged under the law at the time, and is theref ore valid. Thus, the petitioner's attack must fail.” The appellant al so contends that he is enti tled to r

elief be cause the tr ial court erre d in dism issing his p etition witho ut a hea ring and erred in failing to appoin t counse l. These issues a re withou t merit.

An evidenti ary heari ng is not necess ary when the pet ition do es not all ege facts whic h would establish relief. Passa rella v. State , 891 S.W.2d 619, 627 (Tenn .Crim.A pp. 199 4), State v. Henderson , 421 S.W.2d. 635, 636- 37, (Tenn. 1967). Furt hermore, it is not necess ary to appoi nt counsel unl ess the peti tion all eges fac ts s howi ng t he de nia l of state o r f eder

al const it uti onalri ght s or some fatal jurisdiction al fault. Henderson, 421 S.W.2d at 636-37.

The dismissal of

the petit ion for wr it of habe as corpus is af firmed.

___________________________________ WILLI AM B. A CREE, JR., SPECI AL JUDGE

CONCUR:

___________________________________ JERRY L. SMITH, JUD GE

____________________________________ THOMAS T. WOODALL, JUDGE