# FILED
October 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE SEPTEMBER 1998 SESSION

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

Appellant, * DAVIDSON COUNTY VS. * Hon. J. Randall W yatt, Jr., Judge KEVIN MYERS, WARDEN, * (Petition for Writ of Habea s 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 & Repor ter CCA/SCCC P.O. Box 279 Lisa A. Naylor Clifton, TN 38425-0279 Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493

OPINION FILED: __________________
AFFIRMED GARY R. WADE, PRESIDING JUDGE2 OPINION The petitioner, William A. Ransom, was c onvicted of robbery and, because he qualified as a habitual criminal, he received a life sente nce. This court affirmed the convictions on dir ect appeal. State v. William Ransom , [no number in original] (Tenn. Cri m. App., at Nashville, M ay 15, 1984). In this petition for habeas corpus, the petitioner cla ims that the indictment for robber y and the declaration of habitual criminality

is void because the indi ctment failed to assert the req uisite mens rea. It is the initial

contention of the petitioner that, due to the faulty indictment, the trial cou rt lacked jurisdict ion to en ter a convi ction or im pose a se ntence. Secondly, the petitioner claims that the trial court erred by failing to appoint counsel or to conduct an evide ntiary hearing.

We affirm the judgment of the trial court.

I On June 10, 1997, the petitioner fil ed this petition for habeas corp us relief alleging deficie ncies in each count of the indic tment 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, 1 996), rev'd , 954 S.W.2d 725 (Tenn. 1997). While the state failed to respond to the petition, the trial court entered a s ummary order of dismissal.

A writ of habeas corpus may be granted only when

the petitioner has established lack of jurisdiction for the order of conf inement or that he is otherwise entitled to immediate release bec ause 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 on ly when it appears on the face of the j udgment or the record that the trial court was3 without jurisdicti on to convict or sentence the defendant or that the sentence of imprisonment has otherwis e 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 Na shville, 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, knowledg e or recklessness suffices t o 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 "plain ly dispense" with a mens rea of the crime and thus the indictment, which did not allege a mens rea, was void for failure to alleg e an essential element of the offense. Slip op. at 5-6.

On appeal, our supreme court ov erruled the intermediate cour t, holding as follows:

[F]or offenses which neither expressly require nor plainly dispense with the req uirement for a culpable mental state, an indictment whic h fails to allege such mental state will be sufficient t o 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 ac cused of the charge against which the accused must defend, a

dequate basis fo r entry

of a proper judgment, and protecti on from double je opardy; (2) the form of the indictment meets th e 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 r uled that the indictment for aggravated rape was sufficient because "the act for which the defe ndant [was] indicted, 'unlawful sexual penetrat[ion]' ... is committable only if the principa l actor's
mens rea is intentional, knowi ng, or reckless. Thus, the required mental state may be inferred from the nature of the crimi nal conduct alleged." Id. at 729.

The 1981 indictment challenged by the petitioner pre-date d this court's opinion in Hill . That opinion was primar ily based on a provi sion of the 1989 Act, Tenn. Code Ann. § 39-11-301(b), which provided that a "culpable m ental 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 i n Hill is applicable to pre1989 indictments. Dykes , slip op. at 6.

For the offense of robbery, the petitioner was charged as fo llows: [Count One] On the ___ day of May , 1981, with force and arms, in t he Count y aforesa id, [the p etitione r] unlawf ully, feloniously did make an assaul t upon the body of one Paul Givan, then and there .. . unlawfully, feloniousl y, and violently did steal , take, and carry aw ay from the person against the will of sa id 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 mark s omitted). In 1981, robbery was defined as the "felonious and forcible taking from the per son 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 lang uage of the indictment provi ded 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 f acts in5 ordinary language c

learly capable of understandi ng. 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 J ackson, Feb. 19, 1997). In cons equence, the indictment for robbery w as sufficient.

For the determination of habitual criminality, the petitioner was charged as follows:

[Count Two] On the day and dat e 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 [petiti oner] was then and there a person who had been either thr ee (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 pr ior convictions being

as follows: ... . EMPHASIS:[the petitioner] by re ason of commiss ion of sa id felon y of Robbe ry after sa id above enumerated felony convicti ons, is a habitual crimina l .... (internal quotation mark s omitted). In 1981, habitual c riminality was d etermined as follows: [a]ny person who has either been three (3) times

convicted within this state of felonie s, not les s than two (2) of which are among tho se specified in [enumerated sections] or were for a crime punishable by death unde r existing law, but for which the death penalty was not inflicted, or who has been three (3) times convic ted under the laws of any other sta te, government or countr y of crimes, not less than tw o (2) of which, if they had been committed in this state, would have been among those specifi ed in said [enumer ated sec tions] or would have been punishable by death under ex isting laws, but for which the death penalty was not inflicted, shall be considered, for the purposes of this chapter, an d is declared to be an habitual criminal...; provided, further, that each of such three (3) conv ictions shall be for separate offenses, committed at different times, and on separate occasions. Tenn. Code Ann. § 40-2801 (Repl. 1975) . Furthermore, the statute di rected as6 follows: an indictment ... which c harges a person, who i s an habitual criminal ... w

ith the commission of any felony specified in [enumerated sections] or a crime for which the maximum punishment is death, s hall, in order to sustain a convicti on of habitu al criminality, also charge that he is such habitual criminal. Every person so charged as being an habitua l criminal shall be enti tled ... to ... a written statement of the felonies, prior convi ctions of which form the basis of the char ge of habitual criminality .... Tenn. Code Ann. § 40-2803 (Repl. 1975) . "[H]abitual criminali ty is a status, not an offense; a nd its fi nding c alls for an enhanc

ement of t he punis hment ...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 nu mber of identified felonies.

II The petitioner also claims th at the trial court erred when it declined to appoint him counsel and failed to aff ord him an evidentiary hearing. On appeal, when the petitioner agai n requested counsel be appointe d, this court remanded the issue to the trial court

for reconsideration. William A. Ransom v. State , No. 01C01- 9708-CC-00328, Order (Tenn. C rim. App., at Nashvill e, Aug. 29, 1997). On remand, the trial court ruled, "pu rsuant to Tenn. Code Ann. § 40-14-204 , ... the appointment of counsel by the Court w as not necessary for an adeq uate 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] tha t counsel should be appointed in all cases req uesting the writ of habeas corpus before dismissal of incompetent pe titions. While it is true that Tennessee Code A nnotated Section 40-14- 204 allows the appointment of counsel "if nece ssary" in7 habeas corpus proceedings, there is no constitutional right to counsel in a habea s corpus proceeding. Elmer Lester Fritts v . State , No. 02C01-9210-CC-00 243, slip op . at 3 (Tenn. C rim. App., at Jackson, Sept. 22, 1993)( citations omitted). "It is elementary that a habeas corpus petition may be dis missed without a hearing , and without the appointment of counsel for a hearing, unles s it alleges facts show

ing the denial of state or federal constitutional rights

or some fatal jurisdiction al fault." State ex re l. Edmon dson v. Henderson , 421 S.W.2d 635, 63 6-37 (Tenn. 1967).

First, the petitioner has no absolute right to counsel. Nothing in this record demonstrates that one w as "necessary" withi n the meaning of the statute. Secondly, there is no mandator y right to a hearing

and the trial court is no t required to hear proof unless the petitione r 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 j udgment is affirmed.

__________________________________ Gary R. Wad e, Presiding Judge CONCUR:

_________________________________ Thomas T. W oodall, Judge

_________________________________ Curwood Wi tt, Judge