FILED

October 12, 1998

Cecil W. Crowson

Appellate Court 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

In this post-conviction case, Frank Crittenden, the

appellant, pleaded guilty to eight counts of aggravated rape.

After a sentencing 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

consequently failed 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 valid. Our

holding notwithstanding, in the interest of justice we find that

the appellant should have an opportunity to perfect a direct

appeal. 

Because the issues before us are questions of law, our

review is 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, pursuant to an

indictment which failed to charge a specific culpable mental state.

This issue first appears in appellant’s Tenn. R. App. P. 11

application for 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 during
1Due to the age of the victim and the nature of the offense,

we identify the victim by initial only.

3

the pendency of the proceedings the defense that the indictment

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

upon counts of the indictment alleging conduct in violation of the

Criminal Sentencing Reform Act of 1989. These two counts charged

that the appellant “did engage in unlawful 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

dignity of the State of Tennessee.” The aggravated rape statute

neither expressly requires nor plainly dispenses with the

requirement for a culpable mental state. Consequently, “intent,

knowledge, or recklessness” suffices to establish the necessary

culpable mental state. Tenn. Code Ann. § 39-11-301(c)(1991). 

In Hill, 954 S.W.2d at 726-27, an 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 the
4

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 essentially identical

to the indictment in Hill, Hill 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

which occurred 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. Compton, __ S.W.2d __

(Tenn. 1998), 1998 WL 640275 (Tenn. Sept. 21, 1998).
2Tennessee Code Annotated § 40-13-202 (1990) provides that an

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; . . . . 

5

Applying Hill, we consider these six counts of the

indictment to be clear, concise, understandable, and in accordance

with Tenn. Code Ann. § 40-13-202 (1990).2 Moreover, the defendant

and the trial court were provided with adequate notice of the

offenses 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 mental state 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 between the allegations sufficient for a valid

indictment and the proof necessary to convict. A conviction

requires proof beyond a reasonable doubt of every element of the

offense. An indictment needs only to satisfy 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 strict
6

pleading requirement was the existence of common law offenses whose

elements were not easily ascertained by reference to a statute.

Such common 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.

We move to the second issue concerning the appellant’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 after sentencing, the

appellant’s attorney was permitted to withdraw from the case.

Although the attorney advised the appellant of his right to appeal

the sentences imposed by the trial court, the appellant apparently

decided to waive his right to appeal, and the attorney filed a

“Waiver of Appeal” on February 27, 1995. 

The appellant thereafter had a change of mind, and on

March 8, 1995, he requested by letter that the attorney file an

appeal. The letter was returned unopened, along with a cover

letter reminding the appellant that the attorney would no longer

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

subsequently converted into the instant petition for postconviction relief. 

The petition for post-conviction relief alleged that a

delayed appeal was warranted under Tenn. Code Ann. § 40-30-120
3Additionally, in his application for permission to appeal to

this Court, the appellant contends for the first time that the

trial court failed to comply with 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 postconviction relief, finding as a matter of fact that the trial

attorney provided 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 the appellant did not have an

adequate opportunity to appeal his sentences. Under Tenn. R. App.

P. 4(a), 

in all criminal cases the “notice of

appeal” document is not

jurisdictional and the filing of

such document 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 also Tenn. Code Ann. § 27-1-123 (Supp. 1997). Although the

appellant initially decided 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 perfect
8

his appeal before the limitations period for filing a notice of

appeal expired by seeking the assistance of the attorney who had

just withdrawn from his representation. Moreover, he managed to

file a pro se “motion to file belated appeal” only eleven days

after the limitations period expired. 

Under these circumstances, the abridgement of both direct

and post-conviction avenues of appeal--without ever reaching the

merits of the appellant’s case--would be patently unfair. See

Smith v. State, 873 S.W.2d 5, 6 (Tenn. Crim. App. 1993). Although

the appellant has not requested a waiver of the notice of appeal

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 requirement 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-conviction relief; no court has addressed

sentencing. We therefore find it necessary to remand the cause to

the trial court, with instructions to appoint counsel if necessary

and to reinstate the sentences in order to start anew the time

within which the appellant may perfect a direct appeal of his

sentences to the Court of Criminal Appeals. 
9

In conclusion, we hold that the 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