         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.”
