IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
FRANK CRITTENDEN ) FOR PUBLICATION
)
) FILED: OCTOBER 12, 1998
Appellant )
) DAVIDSON COUNTY
v. )
) HON. J. RANDALL WYATT,
STATE OF TENNESSEE ) JUDGE
Appellee
FILED )
) NO. 01-S-01-9712-CR-00267
October 12, 1998
Cecil W. Crowson
Appellate Court Clerk
For Appellant: For Appellee:
PETER D. HEIL JOHN KNOX WALKUP
Nashville, TN Attorney General and Reporter
MICHAEL E. MOORE
Solicitor General
ELIZABETH T. RYAN
Assistant Attorney General
Nashville, TN
VICTOR S. JOHNSON, III
District Attorney General
WILLIAM REED
Assistant District Attorney General
Nashville, TN
OPINION
AFFIRMED IN PART; REMANDED TO TRIAL COURT BIRCH, J.
In this post-conviction case, Frank Crittenden, the
appellant, pleaded guilty to eight counts of aggravated rape.
After a sentencing hearing, the trial court imposed an effective
sentence of one hundred years to the Department of Correction. Two
issues are before this Court: first, the appellant contends that
the indictment upon which he was convicted failed to allege a
culpable mental state and, for that reason, the trial court was
without jurisdiction to enter judgments of conviction; second, he
insists that he did not have the assistance of counsel and
consequently failed to file a notice of appeal. Hence, he seeks a
delayed appeal.
For the reasons discussed below, we conclude that the
indictment is adequate and the resulting convictions valid. Our
holding notwithstanding, in the interest of justice we find that
the appellant should have an opportunity to perfect a direct
appeal.
Because the issues before us are questions of law, our
review is de novo. State v. Hill, 954 S.W.2d 725, 727 (Tenn.
1997). First, we address the validity of the eight aggravated rape
convictions entered against the appellant, pursuant to an
indictment which failed to charge a specific culpable mental state.
This issue first appears in appellant’s Tenn. R. App. P. 11
application for permission to appeal. Defenses based on defects in
the indictment are usually foreclosed if they are not raised prior
to trial. Tenn. R. Crim. P. 12(b)(2) and (f). However, Rule
12(b)(2) also provides that a court shall notice at any time during
2
the pendency of the proceedings the defense that the indictment
fails to show jurisdiction in the court or that it fails to charge
an offense. Because the appellant has cast his argument in
jurisdictional terms, we are able to address the alleged defect in
the indictment.
Two of the eight aggravated rape convictions were based
upon counts of the indictment alleging conduct in violation of the
Criminal Sentencing Reform Act of 1989. These two counts charged
that the appellant “did engage in unlawful sexual penetration of
[R.C.],1 a child less than thirteen (13) years of age, in violation
of Tennessee Code Annotated § 39-13-502, and against the peace and
dignity of the State of Tennessee.” The aggravated rape statute
neither expressly requires nor plainly dispenses with the
requirement for a culpable mental state. Consequently, “intent,
knowledge, or recklessness” suffices to establish the necessary
culpable mental state. Tenn. Code Ann. § 39-11-301(c)(1991).
In Hill, 954 S.W.2d at 726-27, an aggravated rape case
also prosecuted under the 1989 Act, we stated:
for 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
1
Due to the age of the victim and the nature of the offense,
we identify the victim by initial only.
3
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.
We held the indictment sufficient and the conviction valid. Id. at
729. Because the two counts in this case are essentially identical
to the indictment in Hill, Hill controls our holding here. A
fortiori, the indictment before us is sufficient, and the
conviction based upon that indictment is valid.
The six remaining counts of the indictment allege conduct
which occurred between 1983 and 1988 in violation of the Sexual
Offenses Law of 1979. Each charges that on various dates in 1983,
1984, 1985, 1986, 1987, and 1988, the appellant “did engage in
unlawful sexual penetration of [R.C.], a child less than thirteen
(13) years of age, in violation of Tennessee Code Annotated § 39-2-
603, and against the peace and dignity of the State of Tennessee.”
Although the appellant argues that Hill should not apply to these
counts, we have already determined that the reasoning in Hill is as
relevant to crimes committed under the 1979 Act as it is to those
committed under the 1989 Act. Dykes v. Compton, __ S.W.2d __
(Tenn. 1998), 1998 WL 640275 (Tenn. Sept. 21, 1998).
4
Applying Hill, we consider these six counts of the
indictment to be clear, concise, understandable, and in accordance
with Tenn. Code Ann. § 40-13-202 (1990).2 Moreover, the defendant
and the trial court were provided with adequate notice of the
offenses charged, and the defendant was protected from
reprosecution for the same offenses. As Hill’s last requirement,
we held that an indictment is valid if the requisite culpable
mental state may be logically inferred from the conduct alleged in
the indictment. Here, the culpable mental state is easily
inferable from the conduct--unlawful sexual penetration--alleged in
the indictment. Therefore, these counts of the indictment satisfy
the Hill requirements, and the convictions based upon them are
valid.
As a consequential matter, we deem it important to stress
the distinction between the allegations sufficient for a valid
indictment and the proof necessary to convict. A conviction
requires proof beyond a reasonable doubt of every element of the
offense. An indictment needs only to satisfy the constitutional
and statutory requirements in Hill for it to support a conviction.
Furthermore, we emphasize the fact that the Court has moved away
from the strict pleading requirements adhered to under the common
law. As we noted in Hill, “the purpose of the traditionally strict
2
Tennessee Code Annotated § 40-13-202 (1990) provides that an
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; . . . .
5
pleading requirement was the existence of common law offenses whose
elements were not easily ascertained by reference to a statute.
Such common law offenses no longer exist.” Id. at 728. Were we to
hold otherwise, we would be embracing technicalities that are empty
and without reason. Id.
We move to the second issue concerning the appellant’s
request for delayed appeal. Because he was sentenced on February
10, 1995, he had until March 12, 1995, to file a notice of appeal.
Tenn. R. App. P. 4(a). Immediately after sentencing, the
appellant’s attorney was permitted to withdraw from the case.
Although the attorney advised the appellant of his right to appeal
the sentences imposed by the trial court, the appellant apparently
decided to waive his right to appeal, and the attorney filed a
“Waiver of Appeal” on February 27, 1995.
The appellant thereafter had a change of mind, and on
March 8, 1995, he requested by letter that the attorney file an
appeal. The letter was returned unopened, along with a cover
letter reminding the appellant that the attorney would no longer
act on his behalf. Thus, the thirty-day time period in which to
file the notice of appeal expired. The appellant then filed a pro
se motion to file a delayed appeal on March 23, 1995, which was
subsequently converted into the instant petition for post-
conviction relief.
The petition for post-conviction relief alleged that a
delayed appeal was warranted under Tenn. Code Ann. § 40-30-120
6
(1990) because the trial attorney provided ineffective
representation.3 After a hearing, the trial court denied post-
conviction relief, finding as a matter of fact that the trial
attorney provided competent representation. The Court of Criminal
Appeals ruled that the evidence did not preponderate against this
finding, and we agree. Notwithstanding the correctness, the trial
court’s ruling on the issue of the appellant’s opportunity to
appeal remains unresolved.
We are concerned that the appellant did not have an
adequate opportunity to appeal his sentences. Under Tenn. R. App.
P. 4(a),
in all criminal cases the “notice of
appeal” document is not
jurisdictional and the filing of
such document may be waived in the
interest of justice. The
appropriate appellate court shall be
the court that determines whether
such a waiver is in the interest of
justice.
See also Tenn. Code Ann. § 27-1-123 (Supp. 1997). Although the
appellant initially decided to waive his right to appeal, he
changed his mind during the period in which he did not have the
advice of counsel. The record shows that he attempted to perfect
3
Additionally, in his application for permission to appeal to
this Court, the appellant contends for the first time that the
trial court failed to comply with Tenn. R. Crim. P. 37(e), which
requires the court to advise a defendant of his right to appeal or
to appoint counsel for representation on appeal, if the defendant
is indigent. The lower courts have had no opportunity to address
this question, and no record has been developed on it. In any
event, because we are resolving the delayed appeal issue under
Tenn. R. App. P. 4(a), we need not address Rule 37(e).
7
his appeal before the limitations period for filing a notice of
appeal expired by seeking the assistance of the attorney who had
just withdrawn from his representation. Moreover, he managed to
file a pro se “motion to file belated appeal” only eleven days
after the limitations period expired.
Under these circumstances, the abridgement of both direct
and post-conviction avenues of appeal--without ever reaching the
merits of the appellant’s case--would be patently unfair. See
Smith v. State, 873 S.W.2d 5, 6 (Tenn. Crim. App. 1993). Although
the appellant has not requested a waiver of the notice of appeal
requirement, an appellate court may do so on its own motion when it
is in the interest of justice. State v. Dodson, 780 S.W.2d 778,
781 (Tenn. Crim. App. 1989). It is the opinion of this Court that
the notice of appeal requirement should be waived, and we now do
so.
Typically, when an appellate court waives the notice of
appeal requirement, it then immediately resolves the appeal on its
merits. In this case, however, the Court has before it only the
record concerning post-conviction relief; no court has addressed
sentencing. We therefore find it necessary to remand the cause to
the trial court, with instructions to appoint counsel if necessary
and to reinstate the sentences in order to start anew the time
within which the appellant may perfect a direct appeal of his
sentences to the Court of Criminal Appeals.
8
In conclusion, we hold that the language of this
indictment was sufficient to support the convictions on eight
counts of aggravated rape. Because we find that a waiver of the
notice of appeal requirement furthers the interest of justice, we
remand the cause to the trial court with instructions to appoint
counsel if necessary and to reenter the sentencing judgment in
order to start anew the time within which the appellant may perfect
a direct appeal of his sentences.
The costs of this appeal are taxed to the State, for
which execution may issue if necessary.
______________________________
ADOLPHO A. BIRCH, JR., Justice
CONCUR:
Anderson, C.J.
Drowota, Holder, JJ.
Reid, S.J., not participating
9