            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE            FILED
                             SEPTEMBER 1997 SESSION
                                                             January 6, 1998

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
STATE OF TENNESSEE                   )
                                     )    NO. 03C01-9612-CR-00455
             Appellee,               )
                                     )    BLEDSOE COUNTY
v.                                   )
                                     )    Hon. Buddy D. Perry
ROGERS L. MCKINLEY                   )
                                     )    (Habeas Corpus)
             Appellant.              )
                                     )


For the Appellant                         For the Appellee

Rogers L. McKinley, pro se                Charles W. Burson
T.D.O.C. No. 138372                       Attorney General & Reporter
Route 4, Box 600
Pikeville, TN. 37367                      Peter M. Coughlan
                                          Assistant Attorney General
                                          450 James Robertson Parkway
                                          Nashville, TN. 37243-0493

                                          J. Michael Taylor
                                          District Attorney General

                                          James W. Pope, III
                                          Assistant District Attorney General
                                          265 Third Avenue, Ste. 300
                                          Dayton, TN. 37321




OPINION FILED:____________________

AFFIRMED PURSUANT TO RULE 20

WILLIAM M. BARKER, JUDGE
                                               OPINION

        The appellant, Rogers L. McKinley, appeals the Bledsoe County Criminal

Court’s dismissal of his petition for a writ of habeas corpus. In 1990, the appellant

entered guilty pleas and was convicted of two counts of rape and one count of

aggravated burglary. The trial court sentenced the appellant as a Range II multiple

offender to concurrent sentences of fifteen (15) years for each rape and ten (10) years

for the aggravated burglary. No direct appeal was taken from those convictions and

sentences.

        In this appeal, the appellant contends that the trial court erred in dismissing his

petition for a writ of habeas corpus without a hearing. Pursuant to Rule 20 of the

Tennessee Court of Criminal Appeals, we affirm the judgment of the trial court.

        In his pro se habeas corpus petition, the appellant challenged the validity of the

indictment charging him with aggravated rape. Relying upon this Court’s decision in

State v. Roger Dale Hill,1 appellant argued that the indictment was fatally deficient in

failing to include the requisite mens rea for the aggravated rape offense. The trial

court, however, declined to decide the case on its merits. Instead, the trial court

dismissed appellant’s petition upon determining that the judgments were not void on

their face. The trial court further declined to treat the petition as one seeking post-

conviction relief because the petition was not filed in the court where the convictions

were originally obtained. Tenn. Code Ann. § 40-30-204(a) (Supp. 1996).

        We agree with the trial court’s decision to dismiss appellant’s petition. It is well

established that challenges to the sufficiency of an indictment cannot be tested in

habeas corpus proceedings. See Haggard v. State, 475 S.W.2d 186, 187 (Tenn.

Crim. App. 1971); Brown v. State, 445 S.W.2d 669, 674 (Tenn. Crim. App. 1969).

Furthermore, the petition could not have been considered as one seeking post-

conviction relief. Appellant did not file the petition in the trial court where he obtained


        1
         No. 01C 01-950 8-CC -00267 (Tenn . Crim. A pp. at Na shville, June 20, 1996 ), per. app. granted
(Tenn. 1996).

                                                    2
his original convictions, as required by Tennessee Code Annotated section 40-30-204

(Supp. 1996). Moreover, the three-year statute of limitations, then in effect, precluded

him from filing a post-conviction petition in 1996. See Tenn. Code Ann. § 40-30-102

(repealed 1995).

        Assuming arguendo, however, that the trial court should have considered

appellant’s petition on its merits, the petition nevertheless is without merit. In

challenging the indictment, appellant relies solely on this Court’s decision in Roger

Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, June 20, 1996).

        Our supreme court has recently reversed the decision in Hill. See State v. Hill,

No. 01S01-9701-CC-0005 (Tenn. at Nashville, Nov. 3, 1997). The Court recognized

that modern statutory codes serve to avoid the hypertechnical requirement of common

law pleading. Therefore, as reasoned by the Court, an omission of the mens rea

element from an offense is not always fatal to the indictment. See Slip op. at 5-6.

The Court held that an indictment is legally sufficient if: (1) Its language satisfies the

constitutional requirement of notice to the accused, (2) Its form meets the

requirements set forth in Tennessee Code Annotated section 40-13-202 (Supp.

1996),2 and (3) The requisite mental state can be logically inferred from the alleged

criminal conduct. See id. at 3.

        The indictment in this case contains much more language respecting the mens

rea than that in Hill. It states in pertinent part:

                THE GRAND JURORS for the State aforesaid, being duly
        summoned, elected, impaneled, sworn and charged to inquire for
        the body of the County aforesaid, upon their oaths present:
                That Rogers McKinley heretofore on March 31, 1990, in the
        County aforesaid, did unlawfully, forcibly, or coercively, sexually
        penetrate Linda Simmons, while he was armed with a weapon or an
        article used or fashioned in a manner to lead the victim reasonably to
        believe it to be a weapon, in violation of Tennessee Code Annotated
        39-13-502, against the peace and dignity of the State.



        2
         Unde r Tenn essee Code Annota ted sec tion 40-13 -202 (S upp. 199 6), an indictm ent m ust state
the charged offense in ordinary and concise language that will provide the accused with a common
unders tanding a nd will enab le the trial cour t to enter a p roper jud gme nt.

                                                     3
         The indictment in Hill did not charge that the appellant acted unlawfully, forcibly

or coercively. We find that the indictment in this case would have been valid even

absent our supreme court’s holding in State v. Hill. Moreover, it sets forth facts

constituting the offense and provides the appellant with sufficient notice of the charges

as mandated by our constitution. Accordingly, we conclude that the indictment is

valid.

         Pursuant to Rule 20 of the Tennessee Court of Criminal Appeals, the judgment

of the trial court is affirmed.



                                            ____________________________
                                            WILLIAM M. BARKER, JUDGE




CONCUR:


__________________________
JOHN H. PEAY, JUDGE


__________________________
DAVID G. HAYES, JUDGE




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