# FILED

December 3, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE JUNE 1997 SESSION

DAVID W. FELTS, ) No. 01C01-9608-CR-00344 ) Appellant ) ) PUTNAM COU NTY V. ) ) HON. LEON C. BURNS, J R., STATE OF TENNESSEE, ) JUDGE ) Appellant. ) (Post-Conviction) ) )
For the Appellant: For the Appellee: David W. Felts John Knox Walkup Morgan County Regional Attorney General and Repor ter Correctional Facili

ty P.O. Box 2000 Sarah M. Branch Wartburg, TN 37887 Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493

William Edward Gibson District Attorney General Benjamin W. Fann Assistant District A

ttorney 145 S. Jefferson Avenue Cookeville, TN 38501-3424

OPINION FILED: ___________________

AFFIRMED

William M. Barker, Judge1 Appellant’s petition was t imely fi led under our supreme court’s ru ling i n Arnold C arter v. State , No. 03S 01-961 2-CR -00117 (Tenn . at Knox ville, Septem ber 8, 19 97). Und er the pre vious po stconviction act, appe llant had thre e years fro m the date of his conviction to file a post-c onviction p etition. Tenn. Code Ann. §40-30-102 (repealed 19 95). Because tha t time frame had not e xpired when t he 1995 Post-C onviction A ct took e ffect, app ellant had o ne year fro m its eff ective da te, May 10 , 1995, in w hich to file his petition. Carter , Sli p. op. at 6. 2

OPINION
The appellant, David W. Felts, appeals as of right the dismissal by the Putnam County Criminal Cour

t of his petition for post-conv iction relief. On appeal, appel lant argues that he was e ntitled to the a ppointment o f counsel and an evidentiary hea ring; that he received the ineffectiv e assistance of counsel; and that t wo of the indictments chargi ng him w

ere inv alid. We affi rm the tr

ial cou rt’s de nial of r

elief. Appellant was indicted i n 1993 and 1994 for rape of a child, agg ravated sexual battery, three counts of forgery, three counts of passing a forged instrument and attempting to pass a forged instrument. Appellant gave a statement to authorities confessing to the child sex ual abuse. Pursuant to a plea ag reement, appellant pled guilty to the sexual offenses and two counts of forgery. The other charges were dismissed pursuant to the plea agreement. The agreement recommended a fifteen (15) year sentence for the r ape of a child, eight (8) y ears for the aggravated sexual battery and two (2) years each for the forgery convictions. All s

entences were to be served concurrently. On August 30, 1994, the tri al court accepted the plea ag reement and sentenced appellant according ly. On April 30, 1996, 1 appellant filed a post-conv iction petition allegi ng the ineffective assistance of counsel . The State answered the petition and attached a copy of the transcript from the guilty plea hearing . After reviewing the petition, the answer, and the transcr ipt, the trial court dismissed the petition witho ut holding an evidentiary hearing

. SeeTenn. Code Ann. §40-30-209(a) (S upp. 1996). The trial court found that appellant’s counse l was not deficient and that appellant’s plea was voluntary.2 We note that the same tri al judge pr esided over the guilt

y plea hearing and the post-convi ction procee ding. As a result, he w as fam iliar with the circu msta nces s urround ing appe llant’s case

.

3 Appellan t raises se veral othe r instance s of ineffe ctive ass istance o f couns el in his brief. Howe ver, beca use the se were not include d in his origina l petition, they are n ot appro priate for a ppellate review. 3 Appellant’s claims that the trial court erred in failing to hold an evidentiary hearing and appoint counsel ar e without merit. Pursuant to Tennessee Code Annotated section 40-30-209, a tr ial court is obligat

ed to review the enti re case after the State files an answer to the petition. After review ing the petition, the respo nse, files, and records, if the cour t determines that the petitioner is not entitled to relie

f, the court shall

dismiss the petition. Id. (emphasis added). The record r eflects that the trial court followed this procedure and, therefore, committe d no error. 2 Appellant also contends that he w as denied the effective assistanc e of counsel at his guilty plea h earing. Appellant clai med that his counsel was i neffective in failing to properly investigate the case, prepare for t rial, and consult with the appellant. However, in its order of dismissal, the tri al court noted appellant’s s tatement at the guilty plea hearing

that he was satisfied w ith his counsel. Appellant also indicated that he knew of nothing that counsel should have done but failed to do. Appellant also alleged that his counsel was ineffective in failing to fully explain the right of self-incrimi nation prior to his entry of a guilty plea. We note, as the trial court did, that during the guilty plea hearing

appellant affirmatively s tated that he understood his right against self-incrimination and that he had discussed that ri ght with his attorney. Moreov

er, the trial court ex

plained that right to the appellant and he affirmativel y indicated his un derstanding. In addition, appellant alleges his counsel coerced him t o plead guilty by failing to give meaningful adv ice about the consequences of his guilty plea. 3 However, the guilty plea transcr

ipt indicates that the tri al court thoroughly and carefully explained to appella nt the rel inquishm ent of ri ghts and t he conse quences o f pleadi ng guilty, including enhancement of any later sentence, discretion of the parole board in early4 The Hill opinion was n ot releaseduntilafter appel lant’ s petit ion was fi led. Hi s petit ion did al lege that hi s attorney

faile d to advise him about the el ements of the offense an d specifi cally the int ent requirement. However, the Hill issue was ful ly addr essed in appel lant’ s briefs and v arious motions before thi s Court. Because of the pro se nature of t he proceedings, we believ e the issue has b een properly pre served for appe llate review. 4 release, and the likelihood that he would serve the sentence day-for-day as a sex offender. As a result, we cannot say that appellant was not fully informed about the consequences of his plea. Finally, appellant challenges the validity of the two indictments charging him with rape of a chil d and aggravated se xual battery. He claim s that they faile d to allege the requisite mens rea

and were fatally deficie nt, relying on State v. Roger Dale Hill, Sr. , No. 01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, June 20, 199 6). 4 In its review of that case, the supreme court recently r eversed the ruling of this Court. State v. Roger Dale Hill, Sr. , No. 01S01-9701-CC-0005 (Tenn.at Nashville, Nov ember 3, 1997). Recognizing

that modern statutory codes seek to avoid the hyper technical nature of common law pleading, the court found that the omission of the mens rea from an offense is not always fatal to the indictment. Slip op. at 5-6. Where the mens
rea can be inferred from the criminal conduct alleged, the indic tment conforms to statutory requirements , and meets constitutional req uirements of notice, an indictment is sufficient. Slip op. at 3. Accordingly, w e find that the mens rea for the indictments charging appellant w

ith rape of a child and aggr avated sexual battery

can be reasonably inferred from the co nduct alleged. Appellant’s issue is without meri

t. Our review indicates that the trial court’s findings in the order of dismissal are fully supported by the record. Accordingly, we affirm the dismissal of appellant’s petitio n for pos

t-conv iction relief.5 _______________________________ William M. Barker, Judge

____________________________ Joe B. Jones, Pre siding Judge

____________________________ Thomas T. Woodall, Judge