# FILED
March 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JANUARY, 1998 SESSION

RANDAL L KE ITH ATTAW AY , ) No. 03C01-9703-CR-00100 ) Appellant. ) ) Morgan County vs. ) ) Honorable E. Eu gene Eblen, Jud ge STATE OF TENN ESSEE, ) ) (Habeas Corpus) Appellee, )

FOR THE APPE LLANT: FOR THE APPELLEE: RANDALL KEITH ATTAWAY, JOHN KNOX WALKUP PRO SE Attorney General & Repor ter M.C.R.C.F. P.O. Box

2000 Wartburg, TN 37887-2000 TIMOTHY F. BEHAN Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 CH AR LE S H AWK District Attorney General FRANK HARVEY Assistant District A

ttorney General P.O. Box 703 Kingston, TN 37763

OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE1 The petition does not clearly state which sentences ar e concurrent and which, if any, are c onsecutive. As the recor d does not include the judgment forms, we cannot calculate the length of his effective sentenc e. 2 OPINION

Randall Keith Attaway , the petitioner, appeals purs uant to Rule 3, Tennessee Rules o

f Appell ate Proc

edure, fr om the tr

ial cou rt’s di smissal

of h i s petition for writ of habeas corpus. In May, 1994, the petitioner pled gui lty to theft of property worth more than $10,000 but le ss than $60,000, felony jail e scape, and several counts of possession with the int ent to sell various

controlled substances. He received Range IIIsentences of fifteen years on the theft charge, six y

ears for escape, fifteen y ears for one possession count and eight years for each of the others. 1 In his petition, Attaway challenges only his co nviction for felony escape. Although the petitioner contends that the trial judge erred by dismissing his petition without appointing coun sel or holding an e videntiary hearing, his major contention is that his conviction for felony escape is void because th e indictment failed to the allege the mens rea for that offense.

The indictment at issue, ho wever, is not contai ned in the record on appeal. It is the appellant’s obl igation to prepa re a n adequate record in order to allow meaningful review on appeal; an appellate c ourt can not consider an issue which is not preserved in the record for review

. State v. Banes , 874 S.W.2d 73, 82 (Tenn. Ct. App. 1993). When the record i s incomplete and does not contain the documents relevant to an issue, th is court may not consider the matter. State v. Bennett , 798 S.W.2d 783, 789 (Tenn. Crim. App. 1990). We are unable to rev iew the sufficiency of an indictment unl ess we have a copy of that document.

Moreover, habeas corpus relief is available in this state only when it appears on the face of the judgment or the rec ord t hat the trial court was w ithout jurisdiction to conv

ict or sentence the defendant or that the sentence of2 Section 605(a) provides that “[i]t is unlawful

for any person arrested for, charged with, or convicted of an offense to escape from a penal institution. Tenn. Code Ann. § 39-16-605(a)(1997 ). Elsewhere “escape” is defined as the “unauthorized departure from c ustody or failure to retur n to custody following temporary leave for a spec ific purpose or limited per iod but does not include a violation of conditions of pr obation or parole. . . .” Tenn. Code Ann. § 39-16- 601(3). 3 imprisonment

has otherwise expired. Archer v. State , 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State , 833 S.W.2d 60, 62 (Tenn. 1992). In this ins tance, petitioner does not contend that his sentence has expired, nor has he establ ished that the trial court lacked jurisdiction t o enter judgment

on th e felony escape charge. If the proscrip tive statute does not indicate that the accused’s culpable mental state is a material element

of the offe nse of fe lony escap e,“the appellant’s challenge is not jurisdictionalin nature.” Robert Du ane Bitn er v. Billy Compton , N o. 02C01-9610- CC-00336, slip op. at 4 (Tenn. Crim. App., J a ckson, Nov. 4, 1997), pet. for perm. app. filed (Tenn. Jan. 8, 1998); see J ackie Slagel v. Stat e , No. 03C01-9704-CR001435 (Tenn. Crim. App., Knoxv ille, June 10 , 1997), perm. app. denied (Tenn. 1997); State v. Robert Read, Jr. , No. 01C01
- 9603 -CR-00106 (Tenn. Crim. App., Nashville, Apr. 3, 1997 ), pet. for perm. app. filed (Tenn. May 30, 1997); State v. John James , No. 01C0 1-9601- CR-00016 (Tenn. Cr im. App. , Nashvi lle, M ar. 27, 1997); State v. John Haws Burrell , No. 03C01-9404-CR-00157 ( Tenn. Crim. App., Knoxville, Fe b. 11, 1 997), perm. app. denied (Tenn. 1997) (concurring in results only).

The statute does not indicate that the mens rea is a material element of the offense of felony escape. See Tenn. C ode A nn. §§ 39-16-605(a) (1997). 2 Therefore, because the defect of which the petitioner complains does not divest the trial court of jurisdiction or render the subsequent procee dings void, habeas

corpus reliefis not available. James ClydeSaylor v. Carlton , No. 03C01-9612-CR-00453, slip op. at 3 (Tenn. Crim. Ap p., Knoxville, Oct.31, 1997).

Even if this issue we re properly before this court, the petition woul d3 The petitioner’s claims ar e likewise inapposit

e for a post-conviction petition.

4 This court may not consider statements of fact m ade in pleadings, briefs or oral arguments un less they are supported by a transcript or other evidence. State v. Bennett , 798 S.W.2d at 789. 4 fail on the subs ta ntive grounds as well. 3 In his petition, Attaw ay quotes from the in dictmentas follows : “Randall Keith Attaw

ay . . . did

unlawfully, escape from th e Cocke County Jail.” 4 Assuming that the indic tment is worded as the petitioner claims, we conclude that it is sufficientin a ll respects. See State v. Hill , 954 S.W.2d 725 (Tenn. 1997). In Hill , the supreme court held that, in those instances in which the statutory definition of a crime does not plainly di spense with a mental element and the charging in strument doe s not allege a culpable mental state, the indictment is nevertheless sufficient to support prosecut ion if

(1) the language of t he indictment is sufficient to meet the constitutional requirements of notice to the accused of the charge against which the accused must defend, adequate basis fo r entry of a prope r judgment, and protecti on from double je opardy; (2) the form of the indictment meets the requi rements of Tenn. Code Ann. § 40-13-202; and (3) the menta l state can be logically inferred from the conduct alleged. State v. Hill , 95 4 S.W.2d at 726-27. The language of the indictment foll ows the language of the statute and statesthe facts in ordinary and c oncise language. See Tenn. Code Ann. § 40-13-202 ( 1997); Hill , 954 S.W.2d at 727. A person of
common understanding can unders tand the offense with which the petitioner is charged; a court, on conviction,would be able to pronounce a proper judgment that would protect the defendant from further prosecution for the crime. Id

.
Moreover, the mental state may be logically inferred from the conduct alleged. See Hill , 954 S.W.2d at 729; see also State v. Marshall , 870 S.W.2d 532, 537 -39 (Tenn. Crim. App. 1993). The statute which creates the offense of felony escape does not indicate that the accused’s culpable mental sta te is a material5

element of the offense nor does it clearl y dispense w ith the re quirement. Tenn. Code Ann. § 39-16-605(a) (1997). Thus, pursuant to Tennessee Code Annotated section 39-11-301(c), the mental element is satisfied if the indictment alleges that the defendant committed the proscribed ac t with inte nt, knowledge, or recklessness. As defined by statute, “escape” is the unauthorized and unlawful dep arture from custody. Tenn. Code Ann. §§ 39-16-601(3) and - 605(a)(1997 ). The dictionary defines “escape” as “to break loose from confinement; get f ree.” American Herita ge Dictionary of the Engl ish Language 625 (3rd Ed. 1996). Any una uthorized and unlawful breaking free from confinement in a coun ty jail would nece ssarily be committed either intentionally,knowingly, or recklessly. The lang uage that the petitioner

alleges was contain ed in the indictment provi ded adequate notice to both the petitioner and the trial c ourt and protects the defendant from subseq ue nt reprosecution for this same offense.

Finally, we find no error in the t rial court’s summary dismissal of the non-meritorious

petition without appointm ent of counsel and a hearing. The H abeas Corpus Act requires the court to review the petition and dismiss it and to refuse to issue the writ unless it i ndicates thepetitioner’s convic tion may be void. See Tenn. Code Ann. §§ 29-21-101, -109 (1980). If the writ is refused bas ed on the failure of the petition to rais

e a cogn izable

claim fo r reli ef, any need for a hearing is obviously pretermitted because there is no justiciable issue before the court. See State ex rel. Byrd v. Bomar , 214 Tenn. 476, 381 S.W.2d 280 (1963). See generallyTenn. Code Ann. §§ 29-21-101 to -130 (1980 and Supp. 1996). Thus, the trial court did not err simplybecause it did not allow a hearing, appoint ment of counsel and an opportunity for amendment of the petiti on.

Having found no error in the proceedings below, w e affirm the trial6

court’s dismissal of Attaw ay’s habeas corpus petiti on.

__________________________ CURWOOD W ITT, Judge
CONCUR:

______________________________ GARY R. WADE , Judge

______________________________ JOSEPH M. TIPT ON, Judge