FILED

September 9, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY 1998 SESSION

RONALD WILLIAMS RICE, )

) No. 03C01-9707-CR-00279

Appellant, )

) Morgan County

vs. )

) Honorable E. Eugene Eblen,

CHARLES JONES, 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 Hull Bldg., Second Floor

425 Fifth Avenue, North

Nashville, TN 37243-0493

CHARLES E. HAWK, JR.

District Attorney General

FRANK HARVEY

Assistant District Attorney

P. O. BOX 703

Kingston, TN 37763

OPINION FILED:____________________

AFFIRMED

WILLIAM B. ACREE, JR.

SPECIAL JUDGE
1Before the Supreme Court’s reversal of Hill, this issue was addressed by this

Court several times. See Hatton v. State, (No. 02C01-9611-CC-00407,

Tenn.Crim.App., filed February 19, 1997, at Jackson; Smith v. Compton (No. 02C01-

9701-CC-00018, Tenn.Crim.App., filed 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-00311, filed December 11, 1997, at Jackson; Nowell

v. Compton (No. 02C01-9612-CC-00464, Tenn.Crim.App., filed April 9, 1997, at

Jackson. In these cases, we held that the petitioners could not rely upon Hill because

(1) the sufficiency of an indictment cannot be tested in a habeas corpus proceeding, (2)

Hill applies to crimes committed after the 1989 amendments to the criminal code, and

(3) if Hill did apply, the indictments in these cases were sufficient under the law existing

at the time. The facts in Nowell v. Compton are similar to the facts herein. We held:

“The indictments at issue before us charged that the petitioner "did unlawfully and

feloniously sexually penetrate [the victim, a person] less than thirteen (13) years of age"

and "did unlawfully and feloniously have sexual contact with [the victims, persons] less

OPINION

The appellant, Ronald W illiams Rice, appeals as of right the trial court’s

dismissal of his petition for a writ of habeas corpus. We affirm the trial court.

In 1992, the appellant entered a plea of guilty to a criminal information

charging him with aggravated rape which was committed in 1983. He was

sentenced to fifteen years as a Range 1 standard offender. He filed a petition for

post-conviction relief in 1993, but voluntarily dismissed the petition the same

year. 

The first issue presented for review is that the indictments did not allege a

culpable mental state and is therefore invalid. The appellant relies upon this

Court’s decision in State v. Roger Dale Hill, (No. 01C01-9508-CC-00267

(Tenn.Crim.App.), filed June 20, 1996, at Nashville).

The criminal information against petitioner reads as follows:

“Joseph D. Baugh, being the duly elected District Attorney General

for Williamson County, Tennessee, acting under the authority of

Section 40-3-103, Tennessee Code Annotatated, in April of 1992

before the finding of this presentment, present that Ronald W. Rice,

heretofore, to wit, in February of 1983, before the finding of this

presentment, in said County and State unlawfully and feloniously did

engage in unlawful sexual penetration of a male child whose date of

birth is January 15, 1971, being a child under the age of thirteen

years, in violation of Tennessee Code Annotated, Section 39-13-

502.”

The appellant’s reliance upon this case is misplaced. This decision was

reversed by the Supreme Court in State v. Hill, 954 S.W.2d 725 (Tenn. 1997). 1

 
than thirteen (13) years of age." This language was sufficient under the law as it existed

at the time. As noted above, the Criminal 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 provided simply that: 

 The indictment must state the facts constituting the offense in ordinary and concise

language, without prolixity 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 enable the court, on conviction, to pronounce the proper judgment. 

Furthermore, in Campbell v. State, 491 S.W.2d 359, 361 (Tenn. 1973)

(emphasis supplied), while addressing the sufficiency of an indictment charging the

offense of murder, our Supreme Court stated the following: 

 While it seems clear that the indictment in Witt was insufficient in that it failed to

charge an element, that the murder was committed unlawfully, in either the language of

the statute or common law or words of equivalent import, the decision is confusing

because of the language, 'fatally defective in omitting the charge that the offense was

committed feloniously, or with malice aforethought; and containing no words of

equivalent import.' It is clear, however, that had the indictment used the words

'feloniously' or 'unlawfully', it would have been sufficient. 

We agree with this proposition. By containing the words found in the language of

the statute, the indictments at issue here sufficiently apprised the appellant of the

offense charged under the law at the time, and is therefore valid. Thus, the petitioner's

attack must fail.”

The appellant also contends that he is entitled to relief because the trial

court erred in dismissing his petition without a hearing and erred in failing to

appoint counsel. These issues are without merit.

An evidentiary hearing is not necessary when the petition does not allege

facts which would establish relief. Passarella v. State, 891 S.W.2d 619, 627

(Tenn.Crim.App. 1994), State v. Henderson, 421 S.W.2d. 635, 636-37, (Tenn.

1967). Furthermore, it is not necessary to appoint counsel unless the petition

alleges facts showing the denial of state or federal constitutional rights or some

fatal jurisdictional fault. Henderson, 421 S.W.2d at 636-37.

The dismissal of the petition for writ of habeas corpus is affirmed.

___________________________________

WILLIAM B. ACREE, JR., SPECIAL JUDGE

CONCUR:

___________________________________

JERRY L. SMITH, JUDGE

____________________________________

THOMAS T. WOODALL, JUDGE