IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MAY 1998 SESSION
February 18, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9708-CC-00360
)
) Blount County
v. )
) Honorable D. Kelly Thomas, Jr., Judge
)
GILBERT SMITH, ) (Delivery of Cocaine)
)
Appellant. )
For the Appellant: For the Appellee:
Raymond Mack Garner John Knox Walkup
District Public Defender Attorney General of Tennessee
419 High Street and
Maryville, TN 37804 Ellen H. Pollack
(AT TRIAL) Assistant Attorney General of Tennessee
425 Fifth Avenue North
John E. Herbison Nashville, TN 37243-0493
2016 Eighth Avenue South
Nashville, TN 37204 Michael L. Flynn
(ON APPEAL) District Attorney General
and
Philip Morton
Assistant District Attorney General
363 Court Street
Maryville, TN 37804
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Gilbert Smith, appeals as of right from the sentence
imposed by the Blount County Circuit Court upon his violation of the terms and
conditions of the community corrections program. The defendant pled guilty to two
counts of delivery of cocaine and was sentenced as a Range I, standard offender for a
Class B felony to eight years for each count to be served concurrently. The trial court
also imposed a two-thousand-dollar fine for each count. The trial court permitted the
defendant to serve his sentence in the community corrections program. After his
second violation of the program, the trial court revoked his community corrections
sentence and resentenced the defendant to two concurrent ten-year terms to be served
in the custody of the Department of Correction. The defendant contends (1) that the
indictments are defective and therefore void because they fail to allege a culpable
mental state and (2) that his sentences are illegal because he was sentenced for two
Class B felonies while the indictments allege Class C felonies. The trial court is
affirmed.
I. SUFFICIENCY OF THE INDICTMENTS
The defendant challenges the sufficiency of the indictments contending
that they fail to state an offense. He argues that the indictments are void because they
do not allege the requisite mental state of “knowingly” as required by T.C.A. § 39-17-
417(a). The defendant asserts that his guilty plea did not waive the issue of the
defective indictments because the issue is jurisdictional in nature. The state contends
that the defendant waived the issue by failing to raise it before trial as required by Rule
12(b)(2), Tenn. R. Crim. P.
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Generally, defenses and objections based on defects in the indictment
must be raised before trial. Tenn. R. Crim. P. 12(b)(2); State v. Randolph, 692 S.W.2d
37, 40 (Tenn. Crim. App. 1985). If the defendant fails to raise the issue before trial, the
issue is deemed to be waived. Tenn. R. Crim. P. 12(f); see Rhoden v. State, 816
S.W.2d 56, 61 (Tenn. Crim. App. 1991).
However, Rule 12(b)(2) expressly states that jurisdictional defects or the
failure to charge an offense “shall be noticed by the court at any time during the
pendency of the proceedings . . . .” If the indictment does not charge an offense, Rule
34, Tenn. R. Crim. P., permits an arrest of judgment if “filed within thirty days of the
date [of] the order of sentence . . . .” Moreover, we are required to determine “whether
the trial and appellate court have jurisdiction over the subject matter,” even though the
issue might not have been presented as a ground for relief on appeal. T.R.A.P. 13(b).
The entry of a valid guilty plea constitutes an admission of all facts alleged
and a waiver of procedural and constitutional defects in the proceedings that occurred
before the entry of the plea. On the other hand, this court has concluded that waiver
“does not apply when the indictment fails to assert an essential element of the offense.
In that circumstance, no offense has been charged. In consequence, subsequent
proceedings are a nullity.” State v. Perkinson, 867 S.W.2d 1, 6 (Tenn. Crim. App.
1992). Although the defendants in Perkinson did not plead guilty, we believe that the
reasoning applies equally to the situation in which a defendant pleads guilty to an
indictment that does not allege an offense. In fact, in Dykes v. Compton, 978 S.W.2d
528, 529 (Tenn. 1998), a habeas corpus case attacking an aggravated rape conviction
resulting from a guilty plea, our supreme court acknowledged that the issue of whether
an indictment failed to state an offense was cognizable in a habeas corpus case.
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The indictments in the present case allege that the defendant “did
unlawfully deliver a controlled substance, . . . Cocaine, . . . in violation of Tennessee
Code Annotated, Section 39-17-417(c)(1), all of which is against the peace and dignity
of the State of Tennessee.” Pursuant to T.C.A. § 39-17-417(a)(2), a person commits
an offense if he or she knowingly delivers a controlled substance. The defendant
argues that because the indictments do not specify that he knowingly delivered cocaine,
they fail to state offenses. The state responds that the indictments comply with
applicable statutory requirements.
The proper form for an indictment is set forth in T.C.A. § 40-13-202. It
states:
The 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 . . . .
This court has previously held that the mens rea is an essential element of a felony
drug offense that would need to be alleged in the indictment and that a citation to the
statute would not suffice. See State v. Marshall, 870 S.W.2d 532, 537 (Tenn. Crim.
App. 1993), app. denied (Tenn. Sept. 7, 1993).
However, in State v. Preston Carter, No. 02S01-9705-CR-00045, Shelby
County (Tenn. Feb. 1, 1999), the Tennessee Supreme Court stated the following:
Alleging the mental state was a requirement of every
indictment at common law. [See State v. Hill, 954 S.W.2d 725,
729 (Tenn. 1997)]. In Hill, we noted that it is necessary to
charge the mens rea if the statutory definition of the offense
includes a mens rea. Id. This Court has relaxed the strict
pleading requirements of common law as noted in State v.
Ruff, 978 S.W.2d 95, 100 (Tenn. 1998), by holding that an
indictment which includes a reference to the criminal statute
that sets forth the mens rea is sufficient to give a defendant
notice of the applicable mental state. “Thus, where the
constitutional and statutory requirements outlined in Hill are
met, an indictment that cites the pertinent statute and uses its
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language would be sufficient to support a conviction.” [Ruff,]
at 100.
Slip op. at 8 (emphasis added). Although it is questionable whether Ruff actually holds
that reference to the statute, by itself, suffices for the mens rea element, Carter
effectively holds that it does suffice.
In Carter, the court was reviewing the felony murder counts in an
indictment that did not include mens rea allegations even though the felony murder
statute applicable at that time expressly provided that the killing be reckless. However,
the counts included a number reference to the statute that included felony murder. The
court held that the reference to the statute provided sufficient notice to the defendant of
the applicable mens rea and that the language of the felony murder counts was legally
sufficient. The court did not address this court’s holding in Marshall, although it cited
the case in its analysis of the allegations in the indictment. We can only conclude,
though, that Carter effectively overrules Marshall’s holding that citation to the statute will
not suffice relative to the mens rea element.
In the present case, the indictments refer to T.C.A. § 39-17-417(c)(1),
which provides that a violation of T.C.A. § 39-17-417(a) with respect to cocaine is a
Class B felony when the amount involved is one-half gram or more of a substance
containing cocaine. As previously noted, T.C.A. § 39-17-417(a)(2) provides that a
person commits an offense if he or she knowingly delivers a controlled substance.
Under Carter’s rationale, the fact that the indictments allege the unlawful delivery of
cocaine and provide the statute that directs the defendant to the subsection containing
the requisite mens rea leads us to conclude that the indictments are sufficient.
II. ILLEGAL SENTENCE
The defendant contends that because the amounts of cocaine were
omitted, the indictments charge him with Class C felonies leaving the trial court without
lawful authority to sentence him for Class B felonies. However, in State v. Jabbaul
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Pettus, No. 01-S-01-9709-CC-00202, Montgomery County (Tenn. Jan. 25, 1999), our
supreme court held that the knowing, intelligent and voluntary entry of a guilty plea to a
Class B cocaine felony waives any contention about the indictment not alleging the
quantity of cocaine needed for a Class B felony. The circumstances in the present
case are similar to those in Pettus. The defendant is not entitled to relief.
In consideration of the foregoing and the record as a whole, the judgment
of the trial court is affirmed.
__________________________
Joseph M. Tipton, Judge
CONCUR:
______________________________
Joe G. Riley, Judge
______________________________
James Curwood W itt, Jr., Judge
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