# FILED
October 12, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

FRANK CRITTENDEN ) FOR PUBLICATION ) ) FILED: OCTOBER 12, 1998 Appellant ) ) DAVIDSON COUNTY v. ) ) HON. J. RANDALL WYATT, STATE OF TENNESSEE ) JUDGE ) Appellee ) NO. 01-S-01-9712-CR-00267

For Appellant: For Appellee: PETER D. HEIL JOHN KNOX WALKUP Nashville, TN Attorney General and Reporter MICHAEL E. MOORE Solicitor General ELIZABETH T. RYAN Assistant Attorney General Nashville, TN VICTOR S. JOHNSON, III District Attorney General WILLIAM REED Assistant District Attorney General Nashville, TN

OPINION

AFFIRMED IN PART; REMANDED TO TRIAL COURT BIRCH, J.2 Inthis post-conviction case, Frank Crittenden, the appellant, pleaded guilty to eight counts of aggravated rape. After a sent encing hearing, the trial court imposed an effective sentence of one hundred years to the Department of Correction. Two issues are before this Court: first, the appellant contends that the indictment upon which he was convicted failed to allege a culpable mental state and, for that reason, the trial court was without jurisdiction to enter judgments of conviction; second, he insists that he did not have the assistance of counsel and consequentlyfailed to file a notice of appeal. Hence, he seeks a delayed appeal.

For the reasons discussed below, we conclude that the indictment is adequate and the resulting convictions val id. O ur holding notwit hstand ing, in the interest of justice we find that the appellant should ha ve an opportunity to perfect a direct appeal.

Because the issues before us are questions of law, our reviewis de novo . State v. Hill , 954 S.W.2d 725, 727 (Tenn. 1997). First, we address the validity of the eight aggravated rape convictions entered against the appellant, purs uant to an indictment which failed to charge a specific culpable mental state. This issue first appears in appellant’s Tenn. R. App. P. 11 applicationfor permission to appeal. Defenses based on defects in the indictment are usually foreclosed if they are not raised prior to trial. Tenn. R. Crim. P. 12(b)(2) and (f). However, Rule 12(b)(2) also provides that a court shall notice at any time during1 Due to the age of the victim and the nature of the offense,

we identify the victim by initial only. 3 th e pendency of the proceedings the defense that the indictmen t fails to show jurisdiction in the court or that it fails to charge
an offense. Because the appellant has cast his argument in jurisdictional terms, we are able to address the alleged defect in the indictment.

Two of the eight aggravated rape convictions were based uponcounts of the indictment alleging conduct in violation of the Criminal Sentencing Reform Act of 1989. These two counts charged that the appellant “did engage i n unla wful sexual penetration of [R.C.], 1 a child less than thirteen (13) years of age, in violation of Tennessee Code Annotated § 39-13-502, and against the peace and dignityof the State of Tennessee.” The aggravated rape statute neither expressly requires nor plainly disp enses with the requirement fo r a culpable mental state. Consequently, “intent, knowledge, or recklessness” suffices to establish the neces s ary culpable mental state. Tenn. Code Ann. § 39-11-301(c)(1991).

In Hill , 954 S.W.2d at 726 -27, a n aggravated rape case also prosecuted under the 1989 Act, we stated:

for 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 the4 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.
We held the indictment sufficient and the conviction valid. Id. at 729. Because the two counts in this case are essentiallyidentical to the indictment in Hill , Hi ll controls our holding here. A fortiori , the indictment before us is sufficient, and the conviction based upon that indictment is valid.

The six remaining counts of the indictment allege conduct whichoccurred between 1983 and 1988 in violation of the Sexual Offenses Law of 1979. Each charges that on various dates in 1983, 1984, 1985, 1986, 1987, and 1988, the appellant “did engage in unlawful sexual penetration of [R.C.], a child less than thirteen (13) years of age, in violation of Tennessee Code Annotated § 39-2- 603, and against the peace and dignity of the State of Tennessee.” Although the appellant argues that Hill should not apply to these counts, we have already determined that the reasoning in Hill is as relevant to crimes committed under the 1979 Act as it is to those committed under the 1989 Act. Dykes v. Compt on , __ S.W.2d __ (Tenn. 1998), 1998 WL 640275 (Tenn. Sept. 21, 1998).2 Tennessee Code Annotated § 40-13-202 (1990) provides that an

indictment must: state the facts constituting the offense in ordinaryand concise language, without prolixity or repetition, in sucha manner as to enable a p erson 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; . . . . 5 Applying Hill , we consider the se s ix counts of the indictment to be clear, concise, understandable, and in accordance withTenn. Code Ann. § 40-13-202 (1990). 2 Moreover, the defendant and the trial court were provided with adequate notice of the of fenses charged, and the defendant was protected from reprosecution for the same offenses. As Hill’s last requirement,
we held that an indictment is valid if the requisite culpable mental state may be logically inferred from the conduct alleged in the indictment. Here, the culpable ment al sta te is easily inferable from the conduct--unlawful sexual penetration--alleged in the indictment. Therefore, these counts of the indictment satisfy the Hill requirements, and the convictions based upon them are valid.

As a consequential matter, we deem it important to stress the distinction betwee n th e allegations sufficient for a valid indictment and the proof necessary to convict. A conv ict ion requires proof beyond a reasonable doubt of every element of the offense. An indictment needs only to satisf y the constitutional and statutory requirements in Hill for it to support a conviction. Furthermore, we emphasize the fact that the Court has moved away from the strict pleading requirements adhered to under the common law. As we noted in Hill , “the purpose of the traditionally strict6

pleading requirement was the existence of common law offenses whose elements were not easilyas certained by reference to a statute. Suchcommon law offenses no longer exist.” Id. at 728. Were we to hold otherwise, we would be embracing technicalities that are empty and without reason. Id.

W e move to the second issue concerning the appella nt’ s request for delayed appeal. Because he was sentenced on February 10, 1995, he had until March 12, 1995, to file a notice of appeal. Tenn. R. App. P. 4(a). Immediately af ter sentencing, the appellant’s attorney was permitted to withdraw from the case. Althoughthe attorney advised the appellant of his right to appeal the sentences imposed by the trial court, the appellant apparently decided to waive his right t o ap peal, and the attorney filed a “Waiver of Appeal” on February 27, 1995.

The appellant thereafter had a ch ange of mind, and on March8, 1995, he requested by letter that the attorney file an appeal. The letter was returned unopened, along with a cover let ter reminding the appellant that the attorney would no lo nge r act on his behalf. Thus, the thirty-day time period in which to file the notice of appeal expired. The appellant then filed a pro
se motion to file a delayed appeal on March 23, 1995, which was subsequentlyconverted into the instant petition for postconviction relief.

The petition for post- conv iction relief alleged that a delayed appeal was warranted under Tenn. Code Ann. § 40-30-1203 Additionally, in his application for permission to appeal to

this Court, the appellant contends for the first time that the trial court failed to complywith Tenn. R. Crim. P. 37(e), which requires the court to advise a defendant of his right to appeal or to appoint counsel for representation on appeal, if the defendant is indigent. The lower courts have had no opportunity to address this question, and no record has been developed on it. In any event, because we are resolving the delayed appeal issue under Tenn. R. App. P. 4(a), we need not address Rule 37(e). 7 (1990) because the trial attorney provided ineffective representation. 3 After a hearing, the trial court denied postconvictionrelief, finding as a matter of fact that the trial attorneyprovided competent representation. The Court of Criminal Appeals ruled that the evidence did not preponderate against this finding, and we agree. Notwithstanding the correctness, the trial court’s ruling on the issue of the appellant’s opportunity to appeal remains unresolved.

We are concerned that t he app ellant did not have an adequate opportunity to appeal his sentences. Under Tenn. R. App. P. 4(a),
inall criminal cases the “notice of

appeal” document is not jurisdictional and the filing of suchdocument may be waived in the interest of justice. The appropriate appellate court shall be the court that determines whether such a waiver is in the interest of justice.

See alsoTenn. Code Ann. § 27-1-123 (Supp. 1997). A lthough th e appellant initially dec ide d to waive his right to appeal, he changed his mind during the period in which he did not have the advice of counsel. The record shows that he attempted to perfect8

his appeal before the limitations period for filing a notice of appeal expired by seeking the assistance of the attorney who had just w ithdra wn from his representation. Moreover, he managed to fil e a pro se “motion to file belated appeal” only eleven day s after the limitations period expired.

Under these circumstances, the abridgement of both direct and post-conviction avenues of appeal--without ever reachi ng t he merits of the appellant’s case--would be patently unfair. See Smithv. State , 873 S.W.2d 5, 6 (Tenn. Crim. App. 1993). Although th e appellant has not requested a waiver of the notice of ap pea l requirement, an appellate court may do so on its own motion when it is in the interest of justice. State v. Dodson , 780 S.W.2d 778, 781 (Tenn. Crim. App. 1989). It is the opinion of this Court that the notice of appeal requ irement should be waived, and we now do
so.
Typically, when an appellate court waives the notice of appeal requirement, it then immediately resolves the appeal on its merits. In this case, however, the Court has before it only the record concerning post-c onvi ction relief; no court has addressed sentencing. We therefore find it necessary to remand the cause to the trial court, withinstructions to appoint counsel if necessary and to r einstate the sentences in order to start anew the time withinwhich the appellant may perfect a direct appeal of his sentences to the Court of Criminal Appeals.9 Inconclusion, we hold tha t th e language of this indictment was sufficient to support the convictions on eight counts of aggravated rape. Because we find that a waiver of the notice of appeal requirement furthers the interest of justice, we remand the cause to the trial court with instructions to appoint counsel if necessary and to reenter the sentencing judgment in order to start anew the time within which the appellant may perfect a direct appeal of his sentences.

The costs of this appeal are taxed to the State, for which execution may issue if necessary.

______________________________ ADOLPHO A. BIRCH, JR., Justice CONCUR: Anderson, C.J. Drowota, Holder, JJ. Reid, S.J., not participating