IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1998 SESSION
October 23, 1998
Cecil W. Crowson
WILLIAM A. RANSOM, * Appellate Court Clerk
# 01C01-9708-CC-00328
Appellant, * DAVIDSON COUNTY
VS. * Hon. J. Randall W yatt, Jr., Judge
KEVIN MYERS, WARDEN, * (Petition for Writ of Habeas Corpus)
and STATE OF TENNESSEE,
*
Appellees.
*
For Appellant: For Appellees:
William A. Ransom, Pro Se John Knox Walkup
# 98835, Gemini B-A 110 Attorney General & Reporter
CCA/SCCC
P.O. Box 279 Lisa A. Naylor
Clifton, TN 38425-0279 Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
OPINION FILED: __________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The petitioner, William A. Ransom, was convicted of robbery and,
because he qualified as a habitual criminal, he received a life sentence. This court
affirmed the convictions on direct appeal. State v. William Ransom, [no number in
original] (Tenn. Crim. App., at Nashville, May 15, 1984). In this petition for habeas
corpus, the petitioner claims that the indictment for robbery and the declaration of
habitual criminality is void because the indictment failed to assert the requisite mens
rea. It is the initial contention of the petitioner that, due to the faulty indictment, the
trial court lacked jurisdiction to enter a conviction or impose a sentence. Secondly,
the petitioner claims that the trial court erred by failing to appoint counsel or to
conduct an evidentiary hearing.
We affirm the judgment of the trial court.
I
On June 10, 1997, the petitioner filed this petition for habeas corpus
relief alleging deficiencies in each count of the indictment based upon the ruling of
this court in State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App.,
at Nashville, June 20, 1996), rev'd, 954 S.W.2d 725 (Tenn. 1997). While the state
failed to respond to the petition, the trial court entered a summary order of dismissal.
A writ of habeas corpus may be granted only when the petitioner has
established lack of jurisdiction for the order of confinement or that he is otherwise
entitled to immediate release because of the expiration of his sentence. See Ussery
v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell, 443 S.W.2d
839 (Tenn. Crim. App. 1969). Habeas corpus relief is available in this state only
when it appears on the face of the judgment or the record that the trial court was
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without jurisdiction to convict or sentence the defendant or that the sentence of
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). The validity of an indictment
may be challenged in a habeas corpus proceeding, "where the indictment is so
defective as to deprive the court of jurisdiction." Dykes v. Compton, ___ S.W.2d
___, No. 02-S-01-9711-CC-00105, slip op. at 2 (Tenn., at Nashville, Sept. 21, 1998).
Tennessee Code Annotated § 39-11-301(c) (1989) provides that "[i]f
the definition of an offense within this title does not plainly dispense with a mental
element, intent, knowledge or recklessness suffices to establish the culpable mental
state." In Hill, a panel of this court ruled that the statutory offense of rape as defined
by the 1989 Act did not "plainly dispense" with a mens rea of the crime and thus the
indictment, which did not allege a mens rea, was void for failure to allege an
essential element of the offense. Slip op. at 5-6.
On appeal, our supreme court overruled the intermediate court,
holding as follows:
[F]or offenses which neither expressly require nor plainly
dispense with the requirement for a culpable mental
state, an indictment which fails to allege such mental
state will be sufficient to support prosecution and
conviction for that offense so long as
(1) the language of the indictment is
sufficient to meet the constitutional
requirements of notice to the accused of
the charge against which the accused must
defend, adequate basis for entry of a
proper judgment, and protection from
double jeopardy;
(2) the form of the indictment meets the
requirements of Tenn. Code Ann. § 40-13-
202; and
(3) the mental state can be logically
inferred from the conduct alleged.
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Hill, 954 S.W.2d at 726-27. The court ultimately ruled that the indictment for
aggravated rape was sufficient because "the act for which the defendant [was]
indicted, 'unlawful sexual penetrat[ion]' ... is committable only if the principal actor's
mens rea is intentional, knowing, or reckless. Thus, the required mental state may
be inferred from the nature of the criminal conduct alleged." Id. at 729.
The 1981 indictment challenged by the petitioner pre-dated this court's
opinion in Hill. That opinion was primarily based on a provision of the 1989 Act,
Tenn. Code Ann. § 39-11-301(b), which provided that a "culpable mental state is
required ... unless the definition of the offense plainly dispenses with the mental
element." Our prior criminal statutes contained no similar provision. Nevertheless,
our supreme court has ruled that the analysis set forth in Hill is applicable to pre-
1989 indictments. Dykes, slip op. at 6.
For the offense of robbery, the petitioner was charged as follows:
[Count One] On the ___ day of May, 1981, with force and
arms, in the County aforesaid, [the petitioner] unlawfully,
feloniously did make an assault upon the body of one
Paul Givan, then and there ... unlawfully, feloniously, and
violently did steal, take, and carry away from the person
against the will of said Paul Givan certain personal
property, to wit: ... contrary to the form of the statute in
such cases made and provided, and against the peace
and dignity of the State of Tennessee.
(internal quotation marks omitted). In 1981, robbery was defined as the "felonious
and forcible taking from the person of another, goods or money of any value, by
violence or putting the person in fear ...." Tenn. Code Ann. § 39-3901 (Repl. 1975).
In our view, the language of the indictment provided notice to the
petitioner of the charge, is adequate for entry of judgment, and protects the
petitioner against double jeopardy. Moreover, the indictment states the facts in
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ordinary language clearly capable of understanding. See Tenn. Code Ann. § 40-13-
202. Finally, the term "feloniously" has been recognized as expressing a culpable
mental state. See Gregory L. Hatton v. State, No. 02C01-9611-CC-00407, slip op.
at 2-3 (Tenn. Crim. App., at Jackson, Feb. 19, 1997). In consequence, the
indictment for robbery was sufficient.
For the determination of habitual criminality, the petitioner was
charged as follows:
[Count Two] On the day and date aforesaid, in the
County and state aforesaid, the said [petitioner],
unlawfully did commit the crime and felony set out in
Count One of this indictment which is more fully
described therein and incorporated herein by reference
thereto, ... the said [petitioner] was then and there a
person who had been either three (3) times convicted
within the State of Tennessee of felonies, not less than
two (2) of which are among those specified in
[enumerated sections], said prior convictions being as
follows: ... . EMPHASIS: [the petitioner] by reason of
commission of said felony of Robbery after said above
enumerated felony convictions, is a habitual criminal ....
(internal quotation marks omitted). In 1981, habitual criminality was determined as
follows:
[a]ny person who has either been three (3) times
convicted within this state of felonies, not less than two
(2) of which are among those specified in [enumerated
sections] or were for a crime punishable by death under
existing law, but for which the death penalty was not
inflicted, or who has been three (3) times convicted under
the laws of any other state, government or country of
crimes, not less than two (2) of which, if they had been
committed in this state, would have been among those
specified in said [enumerated sections] or would have
been punishable by death under existing laws, but for
which the death penalty was not inflicted, shall be
considered, for the purposes of this chapter, and is
declared to be an habitual criminal...; provided, further,
that each of such three (3) convictions shall be for
separate offenses, committed at different times, and on
separate occasions.
Tenn. Code Ann. § 40-2801 (Repl. 1975). Furthermore, the statute directed as
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follows:
an indictment ... which charges a person, who is an
habitual criminal ... with the commission of any felony
specified in [enumerated sections] or a crime for which
the maximum punishment is death, shall, in order to
sustain a conviction of habitual criminality, also charge
that he is such habitual criminal. Every person so
charged as being an habitual criminal shall be entitled ...
to ... a written statement of the felonies, prior convictions
of which form the basis of the charge of habitual
criminality ....
Tenn. Code Ann. § 40-2803 (Repl. 1975). "[H]abitual criminality is a status, not an
offense; and its finding calls for an enhancement of the punishment ... to life
imprisonment." Meade v. State, 484 S.W.2d 366, 368 (Tenn. Crim. App. 1972).
This statute requires no mens rea. John J. Villaneuva v. Carlton, No. 03C01-9611-
CR-00425 (Tenn. Crim. App., at Knoxville, Oct. 3, 1997). To be declared a habitual
criminal, the petitioner need only commit a certain number of identified felonies.
II
The petitioner also claims that the trial court erred when it declined to
appoint him counsel and failed to afford him an evidentiary hearing. On appeal,
when the petitioner again requested counsel be appointed, this court remanded the
issue to the trial court for reconsideration. William A. Ransom v. State, No. 01C01-
9708-CC-00328, Order (Tenn. Crim. App., at Nashville, Aug. 29, 1997). On remand,
the trial court ruled, "pursuant to Tenn. Code Ann. § 40-14-204, ... the appointment
of counsel by the Court was not necessary for an adequate and fair review of the
petitioner's Hill claim and, accordingly, is also not necessary on appeal."
This court has previously held as follows:
[There is no requirement] that counsel should be
appointed in all cases requesting the writ of habeas
corpus before dismissal of incompetent petitions. While
it is true that Tennessee Code Annotated Section 40-14-
204 allows the appointment of counsel "if necessary" in
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habeas corpus proceedings, there is no constitutional
right to counsel in a habeas corpus proceeding.
Elmer Lester Fritts v. State, No. 02C01-9210-CC-00243, slip op. at 3 (Tenn. Crim.
App., at Jackson, Sept. 22, 1993)(citations omitted). "It is elementary that a habeas
corpus petition may be dismissed without a hearing, and without the appointment of
counsel for a hearing, unless it alleges facts showing the denial of state or federal
constitutional rights or some fatal jurisdictional fault." State ex rel. Edmondson v.
Henderson, 421 S.W.2d 635, 636-37 (Tenn. 1967).
First, the petitioner has no absolute right to counsel. Nothing in this
record demonstrates that one was "necessary" within the meaning of the statute.
Secondly, there is no mandatory right to a hearing and the trial court is not required
to hear proof unless the petitioner raises a colorable claim in his petition. See State
ex rel. Byrd v. Bomar, 381 S.W.2d 280 (Tenn. 1964); see Tenn. Code Ann. § 29-21-
109.
Accordingly, the judgment is affirmed.
__________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_________________________________
Thomas T. W oodall, Judge
_________________________________
Curwood Witt, Judge
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