### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs O ctober 16, 2002 STATE O F TENNESSEE v. ROBER T JAMES YOREC K, III Direct Appeal from the Criminal Court for Montgom ery County No. 38639, 40000069 John H. Gasaway, III, Judge

No. M2001-02448-CCA-R3-CD - F iled January 15, 2003

The Appellant, Robert James Yoreck, II I, was indicted by

a Montgomery

County gra

nd jury for rape, a class B felony . A negotiated plea agre ement al lowed the Appellant to plead to class C felony aggravated

assault. Following a sentencing hea ring, the tri al court imposed a nine-y ear sentence. On appeal, Yoreck

argue s th at his sentence was excessive. After review, w e find that plain error dictates the convi ction be v acated and the c aseremanded for further proceedings because ag gravated assault is not a lesser included offense of rape.
Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

Revers ed and Rem

anded. D AV ID G. H AYES , J., delivered the opinion of the court, in which J ERRY L. S MITH and J OHN E VERE TT W ILLI AMS , JJ., joined. Gre gor y D. S mi th , C lar ksv il le, Ten nes see , fo r th e Ap pel lan t, Ro ber t J ame s Yo rec k, III. Pau l G. Summers, Attorney Gene ral and Reporter; Michael Moore, Solicitor General; Jennifer L

. Bledsoe, Assistant Attorney General; John Wesley Carney , Jr., District Attorney Genera l; and Helen Young, Assistant District Attorney General, for the Appellee, State of Tenne ssee.

OPINION Factua l Background On February

7, 1999, th e A pp el la nt an d t he vi ct im , C hr is ty S ho ck ey, were at the laundry mat in the victim’s apartment complex. A conversation ensued, and the Appellant indicated that hewas “waiting for a fr iend to pick [him] up.” The victim offered to give the Appellant a ride, and he accepted. The Appellant then gave directions, which led to a dead-end road. The Appe llant putthe car in park, snatched the car key s, and attempted to pull the victim out of the passenger side of the-2-

vehicle. The Appellant got out of the car, “opened the dr iver’s side door and pulled [the victim] out onto the ground.” The victim was then raped by the Appellant. On April 8, 1997, the Appellant was indicted for rap e in viola ti on of Tennessee Code Annotated§ 39-13-503 (1997). Pursuant to a negotia ted plea agree ment, the Appellan t pled gu ilty to aggr avated a ssault as a

Range II offender. At the conclusion of the sentencing hearing, the trial court imposed a nine-y ear sentence. This appeal followed.

ANALYSIS The transcript of the guilty plea proceeding was not

included in the record by the Appellan

t. We have repeatedly

and exhaustively cautioned that this omission may result in a waiver of the sentencing issue pr esented on appeal. See Tenn. R. App. P. 24(a). The record of the g uilty plea proceeding in this cas e would ha ve provid ed us with t

he fact ual basi s for the plea , the spec ific aggravated

assault o ffense

to which th

e Appella nt pled gui lty, and the di strict at torney gener al’s bas is for recommendation of a plea to the lesser included offense. Tenn. R. Crim. P. 11 (c)(1), (e) - (g). Furthermore, no amendment to the indictment or other documentation is shown by the record, which would permit an “additional or different” offense to b e pled to ot her than that charged or a le sser included offense. Tenn. R. Crim. P. 7(b). Rather, all par ties a pparently oper

ated under the assumption that aggravated assa ult was a lesser included offense of rape . Unfortuna tely, that assumption was inco

rrect. Although the issue has not been raised by either the Appellant or the State, we fin d as pl ain err or tha t the A ppell ant’s convi ction for aggr a vated assault was improper. See Tenn. R. A

pp. P. 13(b ); Tenn. R . Crim. P. 52 (b); State v. Adkisson , 899 S.W.2d 626, 638-39 (Tenn. Crim. App. 1994) (is sues which rise to th e level o f plain e

rror lie within the sound discretion of the appellate court and may be addressed to prevent needless litigation, prevent injur y to the interest s of the public, prevent prejudic e to the ju dicial pr ocess, pr event ma nifest inj ustice, o

r to do substantial justice). An offense is a lesser included offense if: (a) all of its statutory elements are included within the stat utory elements of the offense charged; or (b) it fails to m

e et the de fin ition in par

t (a) only in the re spect tha

t it contains a statutory element o

r elemen ts establi shing: (1) a diffe

rent men tal state indicat in g a le ss er ki nd of cu lp ab il it y; and/or (2) a less serious harm or risk of harm to the same person, property or public interest; or-3-

(c) it consists of (1) facilitation of the offense charg ed . . .; or (2) an attempt to commit the offense charged . . .; or (3) solicitation to commit the offense charged. State v. Burns , 6 S.W.3d 453, 466-67 (Tenn. 1999). Here, the Appellant was indicted for rape but was convicted of aggr

avated assault. Rape, as charged in the indictment in this case, is definedas the: unlawful sexual penetration of a victim by the de fendant or of the def

en dant by a victim accompa nied by any of the fo llowing circumsta nces: (1) For ce or co ercion i s used to a ccomplish

the act.

Tenn. Code Ann. § 39-13-503(a)(1). By comparison, class C aggrava ted assault to which t h e Appellan t pled gu ilty is define d as follo ws: A person commits ag grava

ted assa ult who: (1) I ntentiona lly o r knowingly c ommits an a ssault as d efined i n § 39-13- 101 and: (A) Causes serious bodily injury to another; or (B) Uses or display s a deadly we apon. Tenn. Code Ann. § 39-13-102(a)(1) (Supp. 2002). Application of the lesser included of fense te st articulated in Burns requires the conclusion that aggravated assa

ult is not a lesser included offense of rape. To convict t he Appellant of ra

pe in this ca se would require proof of unlawful sexual penetration acc omplished through force or coercion

. See Tenn. Code Ann. §39-13-5 03(a )(1). An aggra vated assault conviction, on the other hand, requires proof that the defendant (1) intentiona lly or kn owingly

caused s erious bo dily

injury to another or (2 ) intentionally or knowingly caused bodily injury

to another and used or display ed a deadly weapon. See Tenn. Code Ann. §§ 39-13-101(a)(1), -102(a)(1) (A), (B) (Supp. 2002). Each form of aggravated

assault contains at least one element not included within the

statutory elements of rape. Burns , 6 S.W.3d at 466. Likewise, the divergenc e of the statutory elements of aggrava

ted assault and the statutory elements of r ape does not arise as a result of ag gravated assault requiring a lesser degree of culpability or a less serious harm or risk of harm. Id. at 466-67. Nor does-4-

aggravated assa

ult consist of facilitation of, attempt to commit, or solicitation to commit rape. Id. at 467. As such, aggravate d assault is not a lesser included offense of rape. Moreover, conv icting a pers on of a crime neither raised by the indictment nor a lesser included offense thereof violates the Sixth Amendment, w hich req uires that the State inform the accused "of the nature an d cause of the acc usation again st him." U.S. C ONST . amend. VI. Allowing the Appellan

t to be convicted for an offense that wasneither charg ed in the i ndictmen

t nor prop erly classifiedas a less er inclu ded offe nse denie s him appr

opriate notice of the charge ag ainst him. See, e.g. , Hagner v. United States , 285 U.S. 427, 52 S. Ct. 417 (19 32); Wong Tai v. United States , 273 U.S. 77, 47 S. Ct. 3 00 (1927) ; Rosen v. United States , 161 U.S. 2 9, 16 S. Ct. 434 (1896); Watson v. Jago , 55 8 F.2d 330 (6 th Cir. 1977) (all holding that t he accu sed is den

ied prope r notice unless th e description of the offense will enable the accused to make ou

t a defe nse or other

wise app ropriate ly plead his case). For these rea sons, the aggravated assa ult conviction must be set aside. CONCLUSION The judgment

of conviction is revers ed, and th e Appella nt’s plea of guilt y to aggr avated a ssault is vacate d. This ca se is rema nded to the

trial cou rt for a n ew trial or other appropr iate pro ceeding s.

___________________________________ DAVID G. HAYES, JUDGE