# FILED
October 30, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE SEPTEMBER 1997 SESSION

CARL HYSO N, JR., ) ) C.C.A. NO. 03C 01-9611-CR-00393 Appellant, ) ) JOHNSON COUNTY VS. ) ) HON. LYNN W. BROWN, HOWARD CA

RLTON and ) JUDGE STATE OF TENN ESSEE ) ) Appellees. ) (Habeas corpus)

FOR THE APPE LLANT: FOR THE APPELLEES:
CARL HYSO N, JR., pro se JOHN KNOX WALKUP # 236076 NECC Attorney General & Repor ter POB 5000 Mountain City, TN 37683 MICHAEL J. F AHEY, II Asst. Attorney General 450 Jame s Roberts on Pkwy. Nashville, TN 37243-0493 DAVID CROCKETT District Attorney General Rt. 19, Box 99 Johnson City, TN 37601

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 O P I N I O N

The petitioner

filed his petition for writ of habeas corpus on August 8, 1996, alleging that his 1994 convictions for aggravated se xua l battery must be set asi de pursuan t to thi s Court’s opinion in State v. Roger Dale Hill, Sr. , No. 01C01-9508-CC00267, Wayne County(Tenn. Crim. App. filed June 20, 1 996, at Nashvill e). Speci fically, he claims that the indictment ch arging him with mul tiple countsof aggravatedrape fails to allege an essentia l elemen t of the c rimes and his convi ct ions must therefore be set aside. The court below

summarily denied the petition on the grounds that it failed to state a basis f or relief . The pet itioner a ppeals. We af firm the judgment below.

Th e c harges against the petitioner provide that he “di d unlawfully and feloniously have sexual penetratio n with [the victim] , . . . a child under the ag e of thirteen years, contrary to TCA, Secti on 39-13-502.” In Hill , the indictment alleged mere ly that the defendant had “unlawfully sexually penetrate[d] [the victim] a person less than thir tee n (13) years of age.” This Cou rt found tha t the use of the word “unlaw fully” was not sufficient to alleg e the defen dant’s mens rea , an essential element of the offense. Accordingly, the i ndictment was found fatally defecti ve.

The indictment in the petitioner’s case is significantly different. In addition to alleging that the crimes were committed “unlaw fully,” the indictment pr ovides that the petitioner

committed the offenses “feloniously.” As poi nted out by the State, Judge Tipton of this Court has previ ously considered allegations similar to those of the petitioner’s in which the defendant had been charg ed with “unlawfully and feloniously sexually penetrat[ing] [the victim] by use of force or coercion.” See Charles Gates v. State , No. 03C01-9510-CC-00313, Bradley County (Tenn. Crim. App. Order filed Aug. 16, 1996, at1 Furthermore, as not ed by the St

ate, the instant

petit ion was not f iled i n the county in which t he conviction s occu rred. Acc ordingly, the c ourt below lacked jurisdiction to conside r it as a petition fo r postconviction relief. See Oliphan t v. State , 806 S.W .2d 215, 217 (Tenn. Crim . App. 1991). 3 Knoxville). In that case, Judge Tipton ruled as follows:

Historica lly, the word <

feloniously’ has meant < [p]ro cee ding from an evil heart or purpos e; done with a deliberate intention of committing a crime.’

As our supreme court has previously noted, < one meaning attached to the word is: “In a legal sense, done with the intent to c ommi t a crime.” ’ Ce rtainly, these mental states that are necessarily inherent in the word < feloniously,’ as recog nized in Tennessee for the better part of this century, woul d inclu de a reckless mens rea, as such exists in th e presen t law. An indictment

is no less valid for

failing to allege the offense in the words of the statute if it alleges the equivalent to those terms. Thus, the indictm ent, in charging agg ravated rape, was and is jurisdictionally sufficient to support the entry of a judgment of conviction for r ape. . . . Id. (citations omitted). See also State v. John Haws Burrell , No. 03C01-9404-CR-00157, Anderson County

(Tenn. Crim. App. filed Feb. 11, 1997, at Knoxville) ( in which a panel of this Court adopted with approv al Judge Tip ton’s con clusion t hat the t erm “fel oniously” necessarilyimplies the m ens rea of intentiona l, knowin g or reckl ess). The sa me reasoning applies in thi s case. This issue is w ithout merit.

The petitioner also complains that the court below err ed when it dismissed his petition summarily. It did not. Habeas corpus relief is available on ly when the judgmentis void upon its face or the petitioner’s sentence has expired. Archer

v. State , 851 S.W.2d 157, 164 (Tenn. 1993); Passarella v. State , 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994). No such grounds have been demonstrated here: the “defect” about which the petitioner complains did not divest the trial court of jurisdiction or render t h e subsequent

post-indictment proceedings a nullity. Nor doe s the petition set forth grounds forrelief under the post-conv iction act. 1 The indictment cha rging the petitioner with aggravatedrape was sufficient onwhich to b ase valid convictions, and no evidentiary4

hearing was therefore nec essary. The judgment below is therefore affirmed.

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______ _ JOHN H. PEAY, Judge

CONCUR:

______________________________ DAVID G. HAYES, Jud ge

______________________________ WILLIA M M. BARKER, Judge