            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                          SEPTEMBER 1998 SESSION
                                                         October 23, 1998

                                                    Cecil W. Crowson
WILLIAM A. RANSOM,            *                    Appellate Court Clerk
                                   # 01C01-9708-CC-00328

             Appellant,       *    DAVIDSON COUNTY

VS.                           *    Hon. J. Randall W yatt, Jr., Judge

KEVIN MYERS, WARDEN,          *    (Petition for Writ of Habeas Corpus)
and STATE OF TENNESSEE,
                              *
             Appellees.
                              *




For Appellant:                     For Appellees:

William A. Ransom, Pro Se          John Knox Walkup
# 98835, Gemini B-A 110            Attorney General & Reporter
CCA/SCCC
P.O. Box 279                       Lisa A. Naylor
Clifton, TN 38425-0279             Assistant Attorney General
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493




OPINION FILED: __________________


AFFIRMED


GARY R. WADE, PRESIDING JUDGE
                                         OPINION

              The petitioner, William A. Ransom, was convicted of robbery and,

because he qualified as a habitual criminal, he received a life sentence. This court

affirmed the convictions on direct appeal. State v. William Ransom, [no number in

original] (Tenn. Crim. App., at Nashville, May 15, 1984). In this petition for habeas

corpus, the petitioner claims that the indictment for robbery and the declaration of

habitual criminality is void because the indictment failed to assert the requisite mens

rea. It is the initial contention of the petitioner that, due to the faulty indictment, the

trial court lacked jurisdiction to enter a conviction or impose a sentence. Secondly,

the petitioner claims that the trial court erred by failing to appoint counsel or to

conduct an evidentiary hearing.



              We affirm the judgment of the trial court.



                                              I

              On June 10, 1997, the petitioner filed this petition for habeas corpus

relief alleging deficiencies in each count of the indictment based upon the ruling of

this court in State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App.,

at Nashville, June 20, 1996), rev'd, 954 S.W.2d 725 (Tenn. 1997). While the state

failed to respond to the petition, the trial court entered a summary order of dismissal.



              A writ of habeas corpus may be granted only when the petitioner has

established lack of jurisdiction for the order of confinement or that he is otherwise

entitled to immediate release because of the expiration of his sentence. See Ussery

v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell, 443 S.W.2d

839 (Tenn. Crim. App. 1969). Habeas corpus relief is available in this state only

when it appears on the face of the judgment or the record that the trial court was


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without jurisdiction to convict or sentence the defendant or that the sentence of

imprisonment has otherwise expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn.

1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). The validity of an indictment

may be challenged in a habeas corpus proceeding, "where the indictment is so

defective as to deprive the court of jurisdiction." Dykes v. Compton, ___ S.W.2d

___, No. 02-S-01-9711-CC-00105, slip op. at 2 (Tenn., at Nashville, Sept. 21, 1998).



              Tennessee Code Annotated § 39-11-301(c) (1989) provides that "[i]f

the definition of an offense within this title does not plainly dispense with a mental

element, intent, knowledge or recklessness suffices to establish the culpable mental

state." In Hill, a panel of this court ruled that the statutory offense of rape as defined

by the 1989 Act did not "plainly dispense" with a mens rea of the crime and thus the

indictment, which did not allege a mens rea, was void for failure to allege an

essential element of the offense. Slip op. at 5-6.



              On appeal, our supreme court overruled the intermediate court,

holding as follows:

              [F]or 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 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.

                                            3
Hill, 954 S.W.2d at 726-27. The court ultimately ruled that the indictment for

aggravated rape was sufficient because "the act for which the defendant [was]

indicted, 'unlawful sexual penetrat[ion]' ... is committable only if the principal actor's

mens rea is intentional, knowing, or reckless. Thus, the required mental state may

be inferred from the nature of the criminal conduct alleged." Id. at 729.



              The 1981 indictment challenged by the petitioner pre-dated this court's

opinion in Hill. That opinion was primarily based on a provision of the 1989 Act,

Tenn. Code Ann. § 39-11-301(b), which provided that a "culpable mental state is

required ... unless the definition of the offense plainly dispenses with the mental

element." Our prior criminal statutes contained no similar provision. Nevertheless,

our supreme court has ruled that the analysis set forth in Hill is applicable to pre-

1989 indictments. Dykes, slip op. at 6.



              For the offense of robbery, the petitioner was charged as follows:

              [Count One] On the ___ day of May, 1981, with force and
              arms, in the County aforesaid, [the petitioner] unlawfully,
              feloniously did make an assault upon the body of one
              Paul Givan, then and there ... unlawfully, feloniously, and
              violently did steal, take, and carry away from the person
              against the will of said Paul Givan certain personal
              property, to wit: ... contrary to the form of the statute in
              such cases made and provided, and against the peace
              and dignity of the State of Tennessee.

(internal quotation marks omitted). In 1981, robbery was defined as the "felonious

and forcible taking from the person of another, goods or money of any value, by

violence or putting the person in fear ...." Tenn. Code Ann. § 39-3901 (Repl. 1975).



              In our view, the language of the indictment provided notice to the

petitioner of the charge, is adequate for entry of judgment, and protects the

petitioner against double jeopardy. Moreover, the indictment states the facts in

                                             4
ordinary language clearly capable of understanding. See Tenn. Code Ann. § 40-13-

202. Finally, the term "feloniously" has been recognized as expressing a culpable

mental state. See Gregory L. Hatton v. State, No. 02C01-9611-CC-00407, slip op.

at 2-3 (Tenn. Crim. App., at Jackson, Feb. 19, 1997). In consequence, the

indictment for robbery was sufficient.



             For the determination of habitual criminality, the petitioner was

charged as follows:

             [Count Two] On the day and date aforesaid, in the
             County and state aforesaid, the said [petitioner],
             unlawfully did commit the crime and felony set out in
             Count One of this indictment which is more fully
             described therein and incorporated herein by reference
             thereto, ... the said [petitioner] was then and there a
             person who had been either three (3) times convicted
             within the State of Tennessee of felonies, not less than
             two (2) of which are among those specified in
             [enumerated sections], said prior convictions being as
             follows: ... . EMPHASIS: [the petitioner] by reason of
             commission of said felony of Robbery after said above
             enumerated felony convictions, is a habitual criminal ....

(internal quotation marks omitted). In 1981, habitual criminality was determined as

follows:

             [a]ny person who has either been three (3) times
             convicted within this state of felonies, not less than two
             (2) of which are among those specified in [enumerated
             sections] or were for a crime punishable by death under
             existing law, but for which the death penalty was not
             inflicted, or who has been three (3) times convicted under
             the laws of any other state, government or country of
             crimes, not less than two (2) of which, if they had been
             committed in this state, would have been among those
             specified in said [enumerated sections] or would have
             been punishable by death under existing laws, but for
             which the death penalty was not inflicted, shall be
             considered, for the purposes of this chapter, and is
             declared to be an habitual criminal...; provided, further,
             that each of such three (3) convictions shall be for
             separate offenses, committed at different times, and on
             separate occasions.

Tenn. Code Ann. § 40-2801 (Repl. 1975). Furthermore, the statute directed as


                                          5
follows:

              an indictment ... which charges a person, who is an
              habitual criminal ... with the commission of any felony
              specified in [enumerated sections] or a crime for which
              the maximum punishment is death, shall, in order to
              sustain a conviction of habitual criminality, also charge
              that he is such habitual criminal. Every person so
              charged as being an habitual criminal shall be entitled ...
              to ... a written statement of the felonies, prior convictions
              of which form the basis of the charge of habitual
              criminality ....

Tenn. Code Ann. § 40-2803 (Repl. 1975). "[H]abitual criminality is a status, not an

offense; and its finding calls for an enhancement of the punishment ... to life

imprisonment." Meade v. State, 484 S.W.2d 366, 368 (Tenn. Crim. App. 1972).

This statute requires no mens rea. John J. Villaneuva v. Carlton, No. 03C01-9611-

CR-00425 (Tenn. Crim. App., at Knoxville, Oct. 3, 1997). To be declared a habitual

criminal, the petitioner need only commit a certain number of identified felonies.



                                            II

              The petitioner also claims that the trial court erred when it declined to

appoint him counsel and failed to afford him an evidentiary hearing. On appeal,

when the petitioner again requested counsel be appointed, this court remanded the

issue to the trial court for reconsideration. William A. Ransom v. State, No. 01C01-

9708-CC-00328, Order (Tenn. Crim. App., at Nashville, Aug. 29, 1997). On remand,

the trial court ruled, "pursuant to Tenn. Code Ann. § 40-14-204, ... the appointment

of counsel by the Court was not necessary for an adequate and fair review of the

petitioner's Hill claim and, accordingly, is also not necessary on appeal."



              This court has previously held as follows:

              [There is no requirement] that counsel should be
              appointed in all cases requesting the writ of habeas
              corpus before dismissal of incompetent petitions. While
              it is true that Tennessee Code Annotated Section 40-14-
              204 allows the appointment of counsel "if necessary" in

                                            6
              habeas corpus proceedings, there is no constitutional
              right to counsel in a habeas corpus proceeding.

Elmer Lester Fritts v. State, No. 02C01-9210-CC-00243, slip op. at 3 (Tenn. Crim.

App., at Jackson, Sept. 22, 1993)(citations omitted). "It is elementary that a habeas

corpus petition may be dismissed without a hearing, and without the appointment of

counsel for a hearing, unless it alleges facts showing the denial of state or federal

constitutional rights or some fatal jurisdictional fault." State ex rel. Edmondson v.

Henderson, 421 S.W.2d 635, 636-37 (Tenn. 1967).



              First, the petitioner has no absolute right to counsel. Nothing in this

record demonstrates that one was "necessary" within the meaning of the statute.

Secondly, there is no mandatory right to a hearing and the trial court is not required

to hear proof unless the petitioner raises a colorable claim in his petition. See State

ex rel. Byrd v. Bomar, 381 S.W.2d 280 (Tenn. 1964); see Tenn. Code Ann. § 29-21-

109.



              Accordingly, the judgment is affirmed.



                                          __________________________________
                                          Gary R. Wade, Presiding Judge

CONCUR:



_________________________________
Thomas T. W oodall, Judge



_________________________________
Curwood Witt, Judge




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