FILED

October 23, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

SEPTEMBER 1998 SESSION

WILLIAM A. RANSOM, * # 01C01-9708-CC-00328

Appellant, * DAVIDSON COUNTY

VS. * Hon. J. Randall Wyatt, Jr., Judge

KEVIN MYERS, WARDEN, * (Petition for Writ of Habeas Corpus)

and STATE OF TENNESSEE,

*

Appellees.

*

For Appellant: For Appellees:

William A. Ransom, Pro Se John Knox Walkup

# 98835, Gemini B-A 110 Attorney General & Reporter

CCA/SCCC 

P.O. Box 279 Lisa A. Naylor 

Clifton, TN 38425-0279 Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

OPINION FILED: __________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE
2

OPINION

The petitioner, William A. Ransom, was convicted of robbery and,

because he qualified as a habitual criminal, he received a life sentence. This court

affirmed the convictions on direct appeal. State v. William Ransom, [no number in

original] (Tenn. Crim. App., at Nashville, May 15, 1984). In this petition for habeas

corpus, the petitioner claims that the indictment for robbery and the declaration of

habitual criminality is void because the indictment failed to assert the requisite mens

rea. It is the initial contention of the petitioner that, due to the faulty indictment, the

trial court lacked jurisdiction to enter a conviction or impose a sentence. Secondly,

the petitioner claims that the trial court erred by failing to appoint counsel or to

conduct an evidentiary hearing.

We affirm the judgment of the trial court.

I

On June 10, 1997, the petitioner filed this petition for habeas corpus

relief alleging deficiencies in each count of the indictment based upon the ruling of

this court in State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App.,

at Nashville, June 20, 1996), rev'd, 954 S.W.2d 725 (Tenn. 1997). While the state

failed to respond to the petition, the trial court entered a summary order of dismissal. 

A writ of habeas corpus may be granted only when the petitioner has

established lack of jurisdiction for the order of confinement or that he is otherwise

entitled to immediate release because of the expiration of his sentence. See Ussery

v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell, 443 S.W.2d

839 (Tenn. Crim. App. 1969). Habeas corpus relief is available in this state only

when it appears on the face of the judgment or the record that the trial court was
3

without jurisdiction to convict or sentence the defendant or that the sentence of

imprisonment has otherwise expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn.

1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). The validity of an indictment

may be challenged in a habeas corpus proceeding, "where the indictment is so

defective as to deprive the court of jurisdiction." Dykes v. Compton, ___ S.W.2d

___, No. 02-S-01-9711-CC-00105, slip op. at 2 (Tenn., at Nashville, Sept. 21, 1998).

Tennessee Code Annotated § 39-11-301(c) (1989) provides that "[i]f

the definition of an offense within this title does not plainly dispense with a mental

element, intent, knowledge or recklessness suffices to establish the culpable mental

state." In Hill, a panel of this court ruled that the statutory offense of rape as defined

by the 1989 Act did not "plainly dispense" with a mens rea of the crime and thus the

indictment, which did not allege a mens rea, was void for failure to allege an

essential element of the offense. Slip op. at 5-6. 

On appeal, our supreme court overruled the intermediate court,

holding as follows: 

[F]or offenses which neither expressly require nor plainly

dispense with the requirement for a culpable mental

state, an indictment which fails to allege such mental

state will be sufficient to support prosecution and

conviction for that offense so long as

(1) the language of the indictment is

sufficient to meet the constitutional

requirements of notice to the accused of

the charge against which the accused must

defend, adequate basis for entry of a

proper judgment, and protection from

double jeopardy;

(2) the form of the indictment meets the

requirements of Tenn. Code Ann. § 40-13-

202; and

(3) the mental state can be logically

inferred from the conduct alleged.
4

Hill, 954 S.W.2d at 726-27. The court ultimately ruled that the indictment for

aggravated rape was sufficient because "the act for which the defendant [was]

indicted, 'unlawful sexual penetrat[ion]' ... is committable only if the principal actor's

mens rea is intentional, knowing, or reckless. Thus, the required mental state may

be inferred from the nature of the criminal conduct alleged." Id. at 729.

The 1981 indictment challenged by the petitioner pre-dated this court's

opinion in Hill. That opinion was primarily based on a provision of the 1989 Act,

Tenn. Code Ann. § 39-11-301(b), which provided that a "culpable mental state is

required ... unless the definition of the offense plainly dispenses with the mental

element." Our prior criminal statutes contained no similar provision. Nevertheless,

our supreme court has ruled that the analysis set forth in Hill is applicable to pre1989 indictments. Dykes, slip op. at 6. 

For the offense of robbery, the petitioner was charged as follows:

[Count One] On the ___ day of May, 1981, with force and

arms, in the County aforesaid, [the petitioner] unlawfully,

feloniously did make an assault upon the body of one

Paul Givan, then and there ... unlawfully, feloniously, and

violently did steal, take, and carry away from the person

against the will of said Paul Givan certain personal

property, to wit: ... contrary to the form of the statute in

such cases made and provided, and against the peace

and dignity of the State of Tennessee.

(internal quotation marks omitted). In 1981, robbery was defined as the "felonious

and forcible taking from the person of another, goods or money of any value, by

violence or putting the person in fear ...." Tenn. Code Ann. § 39-3901 (Repl. 1975). 

In our view, the language of the indictment provided notice to the

petitioner of the charge, is adequate for entry of judgment, and protects the

petitioner against double jeopardy. Moreover, the indictment states the facts in
5

ordinary language clearly capable of understanding. See Tenn. Code Ann. § 40-13-

202. Finally, the term "feloniously" has been recognized as expressing a culpable

mental state. See Gregory L. Hatton v. State, No. 02C01-9611-CC-00407, slip op.

at 2-3 (Tenn. Crim. App., at Jackson, Feb. 19, 1997). In consequence, the

indictment for robbery was sufficient.

For the determination of habitual criminality, the petitioner was

charged as follows:

[Count Two] On the day and date aforesaid, in the

County and state aforesaid, the said [petitioner],

unlawfully did commit the crime and felony set out in

Count One of this indictment which is more fully

described therein and incorporated herein by reference

thereto, ... the said [petitioner] was then and there a

person who had been either three (3) times convicted

within the State of Tennessee of felonies, not less than

two (2) of which are among those specified in

[enumerated sections], said prior convictions being as

follows: ... . EMPHASIS: [the petitioner] by reason of

commission of said felony of Robbery after said above

enumerated felony convictions, is a habitual criminal ....

(internal quotation marks omitted). In 1981, habitual criminality was determined as

follows: 

[a]ny person who has either been three (3) times

convicted within this state of felonies, not less than two

(2) of which are among those specified in [enumerated

sections] or were for a crime punishable by death under

existing law, but for which the death penalty was not

inflicted, or who has been three (3) times convicted under

the laws of any other state, government or country of

crimes, not less than two (2) of which, if they had been

committed in this state, would have been among those

specified in said [enumerated sections] or would have

been punishable by death under existing laws, but for

which the death penalty was not inflicted, shall be

considered, for the purposes of this chapter, and is

declared to be an habitual criminal...; provided, further,

that each of such three (3) convictions shall be for

separate offenses, committed at different times, and on

separate occasions.

Tenn. Code Ann. § 40-2801 (Repl. 1975). Furthermore, the statute directed as
6

follows:

an indictment ... which charges a person, who is an

habitual criminal ... with the commission of any felony

specified in [enumerated sections] or a crime for which

the maximum punishment is death, shall, in order to

sustain a conviction of habitual criminality, also charge

that he is such habitual criminal. Every person so

charged as being an habitual criminal shall be entitled ...

to ... a written statement of the felonies, prior convictions

of which form the basis of the charge of habitual

criminality ....

Tenn. Code Ann. § 40-2803 (Repl. 1975). "[H]abitual criminality is a status, not an

offense; and its finding calls for an enhancement of the punishment ... to life

imprisonment." Meade v. State, 484 S.W.2d 366, 368 (Tenn. Crim. App. 1972). 

This statute requires no mens rea. John J. Villaneuva v. Carlton, No. 03C01-9611-

CR-00425 (Tenn. Crim. App., at Knoxville, Oct. 3, 1997). To be declared a habitual

criminal, the petitioner need only commit a certain number of identified felonies. 

II

The petitioner also claims that the trial court erred when it declined to

appoint him counsel and failed to afford him an evidentiary hearing. On appeal,

when the petitioner again requested counsel be appointed, this court remanded the

issue to the trial court for reconsideration. William A. Ransom v. State, No. 01C01-

9708-CC-00328, Order (Tenn. Crim. App., at Nashville, Aug. 29, 1997). On remand,

the trial court ruled, "pursuant to Tenn. Code Ann. § 40-14-204, ... the appointment

of counsel by the Court was not necessary for an adequate and fair review of the

petitioner's Hill claim and, accordingly, is also not necessary on appeal." 

This court has previously held as follows:

[There is no requirement] that counsel should be

appointed in all cases requesting the writ of habeas

corpus before dismissal of incompetent petitions. While

it is true that Tennessee Code Annotated Section 40-14-

204 allows the appointment of counsel "if necessary" in
7

habeas corpus proceedings, there is no constitutional

right to counsel in a habeas corpus proceeding. 

Elmer Lester Fritts v. State, No. 02C01-9210-CC-00243, slip op. at 3 (Tenn. Crim.

App., at Jackson, Sept. 22, 1993)(citations omitted). "It is elementary that a habeas

corpus petition may be dismissed without a hearing, and without the appointment of

counsel for a hearing, unless it alleges facts showing the denial of state or federal

constitutional rights or some fatal jurisdictional fault." State ex rel. Edmondson v.

Henderson, 421 S.W.2d 635, 636-37 (Tenn. 1967).

First, the petitioner has no absolute right to counsel. Nothing in this

record demonstrates that one was "necessary" within the meaning of the statute. 

Secondly, there is no mandatory right to a hearing and the trial court is not required

to hear proof unless the petitioner raises a colorable claim in his petition. See State

ex rel. Byrd v. Bomar, 381 S.W.2d 280 (Tenn. 1964); see Tenn. Code Ann. § 29-21-

109. 

Accordingly, the judgment is affirmed.

__________________________________

Gary R. Wade, Presiding Judge

CONCUR:

_________________________________

Thomas T. Woodall, Judge

_________________________________

Curwood Witt, Judge