         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE           FILED
                      JANUARY, 1998 SESSION
                                                    March 23, 1998

                                                  Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk
RANDALL KEITH ATTAWAY,      )   No. 03C01-9703-CR-00100
                            )
      Appellant.            )
                            )   Morgan County
vs.                         )
                            )   Honorable E. Eugene Eblen, Judge
STATE OF TENNESSEE,         )
                            )   (Habeas Corpus)
      Appellee,             )



FOR THE APPELLANT:              FOR THE APPELLEE:

RANDALL KEITH ATTAWAY,          JOHN KNOX WALKUP
PRO SE                          Attorney General & Reporter
M.C.R.C.F. P.O. Box 2000
Wartburg, TN 37887-2000         TIMOTHY F. BEHAN
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                 CHARLES HAWK
                                 District Attorney General

                                 FRANK HARVEY
                                 Assistant District Attorney General
                                 P.O. Box 703
                                 Kingston, TN 37763




OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE
                                      OPINION



              Randall Keith Attaway, the petitioner, appeals pursuant to Rule 3,

Tennessee Rules of Appellate Procedure, from the trial court’s dismissal of his

petition for writ of habeas corpus. In May, 1994, the petitioner pled guilty to theft of

property worth more than $10,000 but less than $60,000, felony jail escape, and

several counts of possession with the intent to sell various controlled substances.

He received Range III sentences of fifteen years on the theft charge, six years for

escape, fifteen years for one possession count and eight years for each of the

others.1 In his petition, Attaway challenges only his conviction for felony escape.

Although the petitioner contends that the trial judge erred by dismissing his petition

without appointing counsel or holding an evidentiary hearing, his major contention

is that his conviction for felony escape is void because the indictment failed to the

allege the mens rea for that offense.



              The indictment at issue, however, is not contained in the record on

appeal. It is the appellant’s obligation to prepare an adequate record in order to

allow meaningful review on appeal; an appellate court cannot consider an issue

which is not preserved in the record for review. State v. Banes, 874 S.W.2d 73, 82

(Tenn. Ct. App. 1993). When the record is incomplete and does not contain the

documents relevant to an issue, this court may not consider the matter. State v.

Bennett, 798 S.W.2d 783, 789 (Tenn. Crim. App. 1990). We are unable to review

the sufficiency of an indictment unless we have a copy of that document.



              Moreover, 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 without

jurisdiction to convict or sentence the defendant or that the sentence of




       1
              The petition does not clearly state which sentences are concurrent
and which, if any, are consecutive. As the record does not include the judgment
forms, we cannot calculate the length of his effective sentence.

                                           2
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). In this instance, petitioner

does not contend that his sentence has expired, nor has he established that the trial

court lacked jurisdiction to enter judgment on the felony escape charge. If the

proscriptive statute does not indicate that the accused’s culpable mental state is a

material element of the offense of felony escape,“the appellant’s challenge is not

jurisdictional in nature.” Robert Duane Bitner v. Billy Compton, No. 02C01-9610-

CC-00336, slip op. at 4 (Tenn. Crim. App., Jackson, Nov. 4, 1997), pet. for perm.

app. filed (Tenn. Jan. 8, 1998); see Jackie Slagel v. State, No. 03C01-9704-CR-

001435 (Tenn. Crim. App., Knoxville, June 10, 1997), perm. app. denied (Tenn.

1997); State v. Robert Read, Jr., No. 01C01-9603 -CR-00106 (Tenn. Crim. App.,

Nashville, Apr. 3, 1997), pet. for perm. app. filed (Tenn. May 30, 1997); State v.

John James, No. 01C01-9601-CR-00016 (Tenn. Crim. App., Nashville, Mar. 27,

1997); State v. John Haws Burrell, No. 03C01-9404-CR-00157 (Tenn. Crim. App.,

Knoxville, Feb. 11, 1997), perm. app. denied (Tenn. 1997) (concurring in results

only).



              The statute does not indicate that the mens rea is a material element

of the offense of felony escape. See Tenn. Code Ann. §§ 39-16-605(a) (1997). 2

Therefore, because the defect of which the petitioner complains does not divest the

trial court of jurisdiction or render the subsequent proceedings void, habeas corpus

relief is not available. James Clyde Saylor v. Carlton, No. 03C01-9612-CR-00453,

slip op. at 3 (Tenn. Crim. App., Knoxville, Oct. 31, 1997).



              Even if this issue were properly before this court, the petition would




         2
               Section 605(a) provides that “[i]t is unlawful for any person arrested
for, charged with, or convicted of an offense to escape from a penal institution.
Tenn. Code Ann. § 39-16-605(a)(1997). Elsewhere “escape” is defined as the
“unauthorized departure from custody or failure to return to custody following
temporary leave for a specific purpose or limited period but does not include a
violation of conditions of probation or parole. . . .” Tenn. Code Ann. § 39-16-
601(3).

                                          3
fail on the substantive grounds as well.3 In his petition, Attaway quotes from the

indictment as follows: “Randall Keith Attaway . . . did unlawfully, escape from the

Cocke County Jail.”4    Assuming that the indictment is worded as the petitioner

claims, we conclude that it is sufficient in all respects. See State v. Hill, 954

S.W.2d 725 (Tenn. 1997). In Hill, the supreme court held that, in those instances

in which the statutory definition of a crime does not plainly dispense with a mental

element and the charging instrument does not allege a culpable mental state, the

indictment is nevertheless sufficient to support prosecution if

              (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.

State v. Hill, 954 S.W.2d at 726-27. The language of the indictment follows the

language of the statute and states the facts in ordinary and concise language. See

Tenn. Code Ann. § 40-13-202 (1997); Hill, 954 S.W.2d at 727. A person of

common understanding can understand the offense with which the petitioner is

charged; a court, on conviction, would be able to pronounce a proper judgment that

would protect the defendant from further prosecution for the crime. Id.



              Moreover, the mental state may be logically inferred from the conduct

alleged. See Hill, 954 S.W.2d at 729; see also State v. Marshall, 870 S.W.2d 532,

537-39 (Tenn. Crim. App. 1993). The statute which creates the offense of felony

escape does not indicate that the accused’s culpable mental state is a material




       3
              The petitioner’s claims are likewise inapposite for a post-conviction
petition.
       4
               This court may not consider statements of fact made in pleadings,
briefs or oral arguments unless they are supported by a transcript or other
evidence. State v. Bennett, 798 S.W.2d at 789.

                                         4
element of the offense nor does it clearly dispense with the requirement. Tenn.

Code Ann. § 39-16-605(a) (1997). Thus, pursuant to Tennessee Code Annotated

section 39-11-301(c), the mental element is satisfied if the indictment alleges that

the defendant committed the proscribed act with intent, knowledge, or recklessness.

As defined by statute, “escape” is the unauthorized and unlawful departure from

custody. Tenn. Code Ann. §§ 39-16-601(3) and - 605(a)(1997). The dictionary

defines “escape” as “to break loose from confinement; get free.” American Heritage

Dictionary of the English Language 625 (3rd Ed. 1996). Any unauthorized and

unlawful breaking free from confinement in a county jail would necessarily be

committed either intentionally, knowingly, or recklessly. The language that the

petitioner alleges was contained in the indictment provided adequate notice to both

the petitioner and the trial court and protects the defendant from subsequent re-

prosecution for this same offense.



              Finally, we find no error in the trial court’s summary dismissal of the

non-meritorious petition without appointment of counsel and a hearing. The Habeas

Corpus Act requires the court to review the petition and dismiss it and to refuse to

issue the writ unless it indicates the petitioner’s conviction may be void. See Tenn.

Code Ann. §§ 29-21-101, -109 (1980). If the writ is refused based on the failure of

the petition to raise a cognizable claim for relief, any need for a hearing is obviously

pretermitted because there is no justiciable issue before the court. See State ex rel.

Byrd v. Bomar, 214 Tenn. 476, 381 S.W.2d 280 (1963). See generally Tenn. Code

Ann. §§ 29-21-101 to -130 (1980 and Supp. 1996). Thus, the trial court did not err

simply because it did not allow a hearing, appointment of counsel and an

opportunity for amendment of the petition.




              Having found no error in the proceedings below, we affirm the trial



                                           5
court’s dismissal of Attaway’s habeas corpus petition.




                                               __________________________
                                               CURWOOD W ITT, Judge


CONCUR:


______________________________
GARY R. WADE, Judge



______________________________
JOSEPH M. TIPTON, Judge




                                        6
