IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE FEBRUARY 1998 SESSION RONALD WILLIAMS RICE, Appe llant, ) ) ) FILED No. 03C01-9707-CR-00279 ) Morga n Cou nty September 9, 1998 vs. ) ) Honorable E. EugeneCrowson, Jr. Cecil Eblen, CHARLES JONES, WARDEN, ) Judge Appellate C ourt Clerk ) Appellee. ) (Habeas Corpus) FOR THE APPELLANT: FOR THE APPELLEE: PRO SE JOHN KNOX WALKUP Attorney General & Reporter TIMOTHY F. BEHAN Assistant Attorney General Cordell Hull Bldg., Second Floor 425 Fifth Avenu e, North Nashville, TN 37243-0493 CHARLES E. HAWK, JR. District Attorney General FRANK HARVEY Assistant District Attorney P. O. BOX 703 Kingston, TN 37763 OPINION FILED:____________________ AFFIRMED WILLIAM B. ACREE, JR. SPECIAL JUDGE OPINION The appe llant, Ro nald W illiams R ice, ap peals as of rig ht the tria l court’s dismiss al of his pe tition for a writ of h abeas corpus . We affirm the tria l court. In 1992, the appellant entered a plea of guilty to a criminal information charging him with aggravated rape which was committed in 1983. He was sentenced to fifteen years as a Range 1 standard offender. He filed a petition for post-conviction relief in 1993, but voluntarily dismissed the petition the same year. The first issue presented for review is that the indictments did not allege a culpa ble m ental s tate an d is the refore invalid. T he ap pellan t relies u pon th is Court’s decision in State v. Rog er Da le Hill, (No. 01C01-9508-CC-00267 (Tenn.C rim.App.), filed June 20, 1996, at N ashville). The criminal information against petitioner reads as follows: “Joseph D. Baugh, being the duly elected District Attorney General for Williamson County, Tennessee, acting under the authority of Section 40-3-103, Tennessee Code Annotatated, in April of 1992 before the finding of this presentment, present that Ronald W. Rice, hereto fore, to w it, in Feb ruary o f 1983 , before the find ing of th is prese ntme nt, in sa id Cou nty and State u nlawfu lly and fe loniou sly did engage in unlawful sexual penetration of a male child whose date of birth is January 15, 1971, being a child under the age of thirteen years, in violation of Tennessee Code Annotated, Section 39-13- 502.” The appellant’s reliance upon this case is misplaced. This decision was reversed by the Supreme Court in State v. Hill, 954 S.W .2d 725 (Te nn. 1997). 1 1 Before the Supreme Court’s reversal of Hill, this issue was addressed by this Court several times. See Hatton v. State, (No. 02C01-9611-CC-00407, Tenn.Crim.App., filed February 19, 1997, at Jackson; Smith v. Compton (No. 02C01- 9701-CC-00018, Tenn.Crim.App., filed April 3, 1997, at Jackson; Gooch v. Compton (No. 02C01-9612-CC-00465, Tenn.Crim.App., filed March 13, 1997, at Jackson; Smith v. Hessing, (No. 02C01-9708-CC-00311, filed December 11, 1997, at Jackson; Nowell v. Compton (No. 02C01-9612-CC-00464, Tenn.Crim.App., filed April 9, 1997, at Jackson. In these cases, we held that the petitioners could not rely upon Hill because (1) the sufficiency of an indictment cannot be tested in a habeas corpus proceeding, (2) Hill applies to crimes committed after the 1989 amendments to the criminal code, and (3) if Hill did apply, the indictments in these cases were sufficient under the law existing at the time. The facts in Nowell v. Compton are similar to the facts herein. We held: “The indictments at issue before us charged that the petitioner "did unlawfully and feloniously sexually penetrate [the victim, a person] less than thirteen (13) years of age" and "did unlawfully and feloniously have sexual contact with [the victims, persons] less The appellant also contends that he is entitled to relief because the trial court erre d in dism issing his p etition witho ut a hea ring and erred in failing to appoin t counse l. These issues a re withou t merit. An evidentiary hearing is not necessary when the petition does not allege facts whic h would establish relief. Passa rella v. State, 891 S.W.2d 619, 627 (Tenn .Crim.A pp. 199 4), State v. Henderson, 421 S.W.2d. 635, 636-37, (Tenn. 1967). Furthermore, it is not necessary to appoint counsel unless the petition alleges facts showing the denial of state or federal constitutional rights or some fatal jurisdiction al fault. Henderson, 421 S.W.2d at 636-37. The dismissal of the petition for writ of habeas corpus is affirmed. ___________________________________ WILLIAM B. ACREE, JR., SPECIAL JUDGE CONCUR: ___________________________________ JERRY L. SMITH, JUDGE ____________________________________ THOMAS T. WOODALL, JUDGE than thirteen (13) years of age." This language was sufficient under the law as it existed at the time. As noted above, the Criminal Code did not contain a provision similar to § 39-11-301 © (1989). The statutory requirements for an indictment were found in § 40-1802 (now § 40-13-202 (1990)), which provided simply that: 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. Furthermore, in Campbell v. State, 491 S.W.2d 359, 361 (Tenn. 1973) (emphasis supplied), while addressing the sufficiency of an indictment charging the offense of murder, our Supreme Court stated the following: While it seems clear that the indictment in Witt was insufficient in that it failed to charge an element, that the murder was committed unlawfully, in either the language of the statute or common law or words of equivalent import, the decision is confusing because of the language, 'fatally defective in omitting the charge that the offense was committed feloniously, or with malice aforethought; and containing no words of equivalent import.' It is clear, however, that had the indictment used the words 'feloniously' or 'unlawfully', it would have been sufficient. We agree with this proposition. By containing the words found in the language of the statute, the indictments at issue here sufficiently apprised the appellant of the offense charged under the law at the time, and is therefore valid. Thus, the petitioner's attack must fail.”