# FILED
February 6, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE CRIMINA

L COURT OF A PPEALS OF TENN ESSEE AT KNOXVILLE NOVEMBER 1997 SESSION

CHARLES RAY O’QUINN, ) ) Appellant , ) C.C.A. N o. 03C01-9703-CR-00084 ) vs . ) Johnson County ) HOWARD CARLTON, WA RDEN, ) Hono rabl e Lynn Br own and STATE OF TENNESSEE, ) ) Appellees

. ) (Habeas Corpus) )
FOR THE APPELLANT: FOR THE APPELLEE: CHARLES RAY O’QUINN JOHN KNOX WALKUP N.E.C.C. #100601 Attorney General & Reporter P.O. Box 5000 Mountain City, TN 37683 MICHAEL J. FAHEY , II Pro se Assistant Attorney General Criminal Justic

e Division 450 James Robertson Park way Nashville, TN 37243-0493

OPINION FILED: _____________ AFFIRMED CURWOOD WITT, JUDGE2 OPINION

Charles Ray O’Qui nn, th e petitioner, appeals pursuant to Rule 3, Tenn essee Rule s of Appellate Procedure, from the trial court’s dismissal of his petit ion for writ of habeas corpus. On July 27, 1989, the petitioner pleaded guilty to two counts of aggrav ated rape. The offense s occurred in April or May, and in June, 1988. He recei ved Range I I sentences of 35 years in the aggregate. The petitioner

contends that his convic tions for aggravated ra pe are void because the indictment

failed to allege the mens rea for that offense. See State v. Roger Dale Hill , No. 01C01-9508-CC-00267 ( Tenn. Crim. App., Nashvil le, June 20 , 1996), rev'd , 954 S.W.2d 725 (Te nn. 1997).

A writ of habeas corpus may be granted only when

the petitioner has established lack of jurisdi ction for the order of confinement or

that he is otherwise
e n titled to immediate release because of the ex piration of his sentence. See Ussery v. Avery , 222 Tenn. 50, 432 S.W.2d 656 (1968); State ex rel v. Wade
v. Norvell , 1 Tenn. Crim. App. 447, 443 S.W.2d 839 (1969). Habeas corpus re lief is available in this state on ly when it appears on the face of the judgment or the record that the trial court w as without jurisdic

tion to c o nvict or sentence the defendant or that the sentence of imprisonment has otherw ise expired. Archer

v. State , 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State , 833 S.W.2d 60, 62 (Tenn. 1992). Therefore, we note initially that the petitioner’s claims are not cognizable in
a habeas corpus proceedin g. Th e proscriptive statut e does not indicate that the accused’s culpable mental state is a material element of the offense. Tenn. Code Ann

. § 39-2-603 (1982) (repealed 1989). Under these circumstances, “ th e appellant’s challenge is not jurisdictional i n nature.” Robert Duane Bitner v. Billy Compton , N o. 02C 01-9610-CC-00336, slip op. at 4 (Tenn. Crim. App., Jacks on, Nov. 4, 1997) , pet. for perm. app. filed (Tenn. Jan. 8, 1998); see Jackie Sl agle v. State , No. 03C01-9704-CR-00145 ( Tenn. Crim. App., Knoxvi lle, June 10, 1 997), perm. app. denied (Tenn. 1997); State v. Robert Read, Jr. , No. 01C01-9603-CR-1 Based upon the same reasoning, infra , the petitioner’s claims are likewise

inapposite for a post-convi ction petition. 3 00106 (Tenn. Crim. App., Nashv ille, Apr. 3, 1997), pet. for perm. app. filed(Tenn. May 30, 1997); State v. John James , N o. 01C01-9601-CR-00016 (Tenn. C rim. App., Nashville, Mar. 27, 1997); State v. John Haws Burrell , No. 03C01-9404-CR-00157 (Te nn. Cr im. App., Knoxville, Feb. 11, 1997), perm. app. denied (Tenn. 1997) (concurring in res ults only).

In James Clyde Saylor v . Howar d Carlton , No. 03C01-9612-CR00453, slip op. at 3 (Tenn. Crim. App., Knox v ille, Oct. 31, 1997), this court was faced with a habeas corpus petition that, as in the present case, attacked an indictment

based upon a pre-1989 aggrav ated ra pe, a crime that was defined as “unlawful sexual

penetra tion of an other ac

compani ed by any of the f o llo wing circumstances

. . .” including the age of the victim being less than thirteen years. Tenn. Code Ann. § 39-2-603(a)(4) (1982) (repealed 1989). The c ourt found that habeas corpus relief was not available because the defect “about whic h t he petitioner

complains did not dives t the trial court of jurisdiction or render the subsequent

post-indictment

proceedings a nullity.” James Clyde Saylor , slip op. at 3.
Regardless of the propriety of a procedural disposition o f the petition, the petition fails on the more substantive g rounds that theindictment is sufficient in all respects. 1 In State v. Roger D ale Hill, Sr. , No. 01C01-9508-CC-00267 ( Tenn. Crim. App., Nashville, June 20, 1996), rev’d , 954 S.W.2d 725(Tenn. 1997), a panel of this cou rt rul ed that the statutory offense of aggravated rape did no t “plainly dispense” with a me ns rea of th e crime and thus, the indictment,which did not al lege a means rea, did not include an e ssential element of the offense a nd was , therefore, void.

First, we note that the petitione r is en titled to no relief under this4

court’s decision in Roger Dale Hill . The present appeal stemsfrom a denial of a petition for post-c onviction relief and inv

olves an indic tment issued prior to the 1989 c hanges in the Code. T h e opinion in Hill was based upon this court’s in terpretation of T.C.A. § 39-11-301(c), which was enacted in 1989. That statute provides, in pertinentpart, that “[a] culpable mental state is required within this title unless the definition of the offense plainly di spenses with a mental element.” Prior to 1989, howev er, the Criminal Code

did notcontain a c omp arable statute. According ly, the decision in Hill does not control our review

of the issue raised herein. Curtis Ne wbern v. State , No. 02C01-9702-CR-00 071, slip op . at 2 (Tenn. C rim. App., Jackson, July 1, 1997) (order, Tenn. Ct. Crim. App. R. 20); see also Gregory L. Hatton v. State , No. 02C01-9611-C C-00407, slip op. at 2-3 (Tenn. Cri m. App., Jackson, Feb. 19, 1997) (order, Tenn. Ct. Crim. A pp. R. 20) (use of the words found in the language of the pre-1989 st atute “sufficiently appris ed the appellan t of th e offense charged under the law at that time”).

Furthermore, even if the Hill analysis applies to the present

case, our supremecourt’s decision rev ersing this court’s decision conclusivel y demonstrates that the petitioner’s clai m has no merit. See Hill , 954 S.W.2d 725.

The supreme court in Hill said that a charging i nstrument which does not allege a culpable mental s tate, th e sta tutory definition of the crime not plainly dispensing with a mental element, is nevertheless sufficient to support prosecution where (1) the language of the indictment is sufficient to meet the constitutional requirements of notice to the accused of th e charge against which the accused must defend, adequate basis for entry of a proper j udgment , and prot ection f rom doub le jeopar dy; (2) the form of the indictment meets the requirements of Tenn. Code Ann. § 40-13-202; and (3) the mental statecan be logically i nferred from the conduct alleged. Hill , 954 S.W.2d at 726-27. The supreme court scrutinized the Hill indictment under the three-part inquiry

above and determined the indictment wa s legally sufficient to support prosecution of the accused, notwithstanding the absence of an explici t
a llegation of a mens rea . Hill , 954 S.W.2d at 727-2 9. Specifica lly, the s upreme5

court noted, “[T]he act for which the defendant is ind icted, ‘u nlawfully sexually penetrat[ing]’ a person under the age of thirteen, is committable only if the principal actor’s mens reais intentional, knowi ng or reckless. Thus, the req uired mental state maybe inferred from the nature of the crimi nal conduct alleged.” Hill , 954 S.W.2d at 729.

We find the indictmen ts at bar to be virtual ly identical to the aggravatedrape indictment upheld in Hill . Th ey c losely follow the statutory language describing the crimes . They comply with the statutory form by stating the “facts constituting the offense in ordi nary and concise langua ge, 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 w

ill enable the court,
on conviction, to pronounce the proper judg ment . . . .” See Tenn. Code Ann. § 40- 13-202 (1997); Hill , 954 S.W.2d at 727, slip op . at 3. Further, the mental state is capable of logical inference from the conduc t alleged. See Hill , 954 S.W.2d at 729; see also State v. Marshall , 870 S.W.2d 532, 537-38 (Tenn. Crim. App. 1993). As the supreme court noted in Hill , the allegation of “unlawfull y sexually penetr

at[ing]”
a victim necessarily

requires an intentional, knowing or reckless mens rea . Hill , 954 S.W.2d 729. Ther

efore, th e alleg ation r

aises an inferen ce of t h e required mental state. Hill , 954 S.W.2d at 729.

Accord ingly , the indictment satisfies the thr ee Hill requirements for sufficient allegations to

support prosecution. See Hill , 954 S.W.2d at 729. The trial court acted properl y in sum marily dismissing the petition prior to the state’s response and prior to a hea ring. S ee Tenn. Code Ann. § 29-21-109 (1997). Moreover, the respondent is obliged to answer only “if [an answ er is ] required.” Tenn. Code Ann. § 29-21-116(a)(1997) . “ It is only after the writ has been issu ed and the respondent served that Tenn.Code Ann. § 29-21-116 is appli cable.” William Jones v. State , No. 01C01-9308-CR-00272, slip op. at 3 (Tenn. Crim. App., Nashville, July 14, 1995), remanded on other grounds (Tenn. 1996); see also State6

v. Joe Willie Harris , No. 01C01 -9309-CR -00304 (T enn. Crim . App., Na shville, No v. 10, 1994), perm. app. d enied (Te nn. 1995). In the present case, summary dismissal without the issuance of a writ was proper, James Clyde Saylor , slip op. at 3, and hence the respondent need not have been ser ved and was not requi red to
answer. See generally Henry B. Waggoner v. State , No. 01C01-9604-CC-00142 (Tenn. Crim. App., Nashville, July 11, 1997); Calvin Murry v. Herman C. Davis , No. 89-37-III (Tenn. Crim. App., Nashville, Feb. 9, 1990).

The judgment of the trial court i s affirmed.

_______________________ CURWOOD WITT, JUDGE CONCUR:

_______________________________ JOE B. JONES, PRESIDING JUDGE

_______________________________ PAUL G. SUMMERS, JUD GE