          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                        FILED
                                AT KNOXVILLE                           July 14, 1999

                                                                     Cecil Crowson, Jr.
                              MAY 1999 SESSION                       Appellate C ourt
                                                                         Clerk




STATE OF TENNESSEE,                  *   C.C.A. # 03C01-9802-CR-00059

             Appellee,               *   HAMILTON COUNTY

VS.                                  *   Honorable Douglas A. Meyer, Judge

ALFRED TERRY PECK,                   *   (Post-Conviction/Aggravated Rape)

             Appellant.              *



FOR THE APPELLANT:                       FOR THE APPELLEE:

ARDENA J. GARTH                          PAUL G. SUMMERS
District Public Defender                 Attorney General & Reporter

DONNA ROBINSON MILLER                    MARVIN S. BLAIR, JR.
Assistant District Public Defender       Assistant Attorney General
Suite 300, 701 Cherry Street             425 Fifth Avenue North
Chattanooga, TN 37402                    Nashville, TN 37243-0493

                                         WILLIAM H. COX III
                                         District Attorney General

                                         C. LELAND DAVIS
                                         Assistant District Attorney General
                                         600 Market Street, Suite 310
                                         Chattanooga, TN 37402




OPINION FILED: _______________




AFFIRMED - RULE 20



JOHN EVERETT WILLIAMS,
Judge
                                           OPINION

        The petitioner, Alfred Terry Peck, appeals from the trial court’s denying his

motion to reopen a petition for post-conviction relief. In 1983, the petitioner was

convicted by a Hamilton County jury of aggravated rape. He subsequently filed a

petition for post-conviction relief in 1985, which was denied. In his motion, he

alleged that the Court of Criminal Appeals holding in State v. Roger Dale Hill, No.

01C01-9508-CC-00267 (Tenn. Crim. App. filed June 25, 1996, at Nashville),

established a constitutional right not recognized at the time of his trial but

requiring retrospective application to his case.1 On January 9, 1996, the trial

court dismissed the motion to reopen.



        After review of the record, we affirm the judgment of the trial court,

pursuant to Tenn. Ct. Crim. App. R. 20.



        Initially, we address the appellant’s failure to follow the proper procedure

for appealing the trial court’s order. The controlling statute requires a petitioner

to seek permission to appeal from this Court within ten days of the trial court’s

denial of the motion to reopen. Tenn. Code Ann. § 40-30-217(c). In addition,

the petitioner shall file the order denying the motion and all documents filed by

the parties in the trial court. Id. The petitioner filed his appeal approximately

twenty-eight days after the trial court’s dismissal.



        We further note the petitioner’s reliance on the Hill decision throughout

the procedural history of his motion to reopen, up to his appeal to this Court.2


        1
            Although the petition did not explicitly state that Hill established such a right, the
pertinent statute provides only three possible bases for reopening a petition for post-conviction
relief: the mentioned constitutional right; relevant new scientific existence; and circumstances
involving prio r conviction s enha ncing a c onteste d sente nce. See Tenn. Code Ann. § 40-30-
217(a). B y deduction , only the first bas is is argua bly relevant.

        2
           The trial court convicted the petitioner in 1983, and the Hill decision addressed an
aggravated rape conviction for a post-1989 offense. In Dykes v. Compton, 978 S.W.2d 528
(Tenn. 1998), the Tenn essee Suprem e Court held that their Hill analysis extended to convictions
under th e 1979 statutes.

                                                 -2-
The Tennessee Supreme Court overruled this Court’s Hill decision in State v.

Hill, 954 S.W.2d 725 (Tenn. 1997). However, on appeal the petitioner

nevertheless asserts that the indictment lacked proper notice of the offense

alleged.



         The petitioner’s reliance on Hill was inappropriate, because that decision

did not establish a new constitutional right. The defendant had the asserted right

to notice at his trial. See Hill, 954 S.W.2d at 727 (citations to the pertinent

federal and state constitutional sections and to case law noting pre-1983

constitutional right to notice). Therefore, the petitioner did not qualify the basis

for his appeal under a recognized statutory ground.



         However, the dispositive issue is the petitioner’s omission of the pertinent

indictment in the record submitted to this Court. The Supreme Court’s Hill

holding does not validate all aggravated rape indictments lacking mens rea

allegations but rather states the standard for determining the validity of those

indictments.3 Even if Hill established the requisite new constitutional right, this

Court can not review an indictment omitted from the record. The petitioner

waived his sole articulated ground for appeal by omitting the essential document.

See Tenn. R. App. P. 24; State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App.

1993).



         Accordingly, the trial court’s denying the motion to reopen the petition for

post-conviction relief is affirmed, pursuant to Tenn. Ct. Crim. App. R. 20.




                                                  _____________________________


         3
           An indictment must provide sufficient information to place the accused on notice of the
charged offense, must provide the trial court with adequate basis for entry of a judgment, and
mus t protect the accus ed from double je opardy. Hill, 954 S.W.2d at 727-28.

                                                -3-
                                 JOHN EVERETT W ILLIAMS, Judge


CONCUR:




_________________________________
JAMES CURW OOD W ITT, JR., Judge




______________________________
ALAN E. GLENN, Judge




                               -4-
