             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                           JUNE 1997 SESSION
                                                      December 3, 1997

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
DAVID W. FELTS,                  )    No. 01C01-9608-CR-00344
                                 )
      Appellant                  )
                                 )    PUTNAM COUNTY
V.                               )
                                 )    HON. LEON C. BURNS, JR.,
STATE OF TENNESSEE,              )    JUDGE
                                 )
      Appellant.                 )    (Post-Conviction)
                                 )
                                 )


For the Appellant:                    For the Appellee:

David W. Felts                        John Knox Walkup
Morgan County Regional                Attorney General and Reporter
Correctional Facility
P.O. Box 2000                         Sarah M. Branch
Wartburg, TN 37887                    Assistant Attorney General
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493


                                      William Edward Gibson
                                      District Attorney General

                                      Benjamin W. Fann
                                      Assistant District Attorney
                                      145 S. Jefferson Avenue
                                      Cookeville, TN 38501-3424



OPINION FILED: ___________________


AFFIRMED


William M. Barker, Judge
                                                    OPINION


         The appellant, David W. Felts, appeals as of right the dismissal by the Putnam

County Criminal Court of his petition for post-conviction relief. On appeal, appellant

argues that he was entitled to the appointment of counsel and an evidentiary hearing;

that he received the ineffective assistance of counsel; and that two of the indictments

charging him were invalid. We affirm the trial court’s denial of relief.

         Appellant was indicted in 1993 and 1994 for rape of a child, aggravated sexual

battery, three counts of forgery, three counts of passing a forged instrument and

attempting to pass a forged instrument. Appellant gave a statement to authorities

confessing to the child sexual abuse. Pursuant to a plea agreement, appellant pled

guilty to the sexual offenses and two counts of forgery. The other charges were

dismissed pursuant to the plea agreement. The agreement recommended a fifteen

(15) year sentence for the rape of a child, eight (8) years for the aggravated sexual

battery and two (2) years each for the forgery convictions. All sentences were to be

served concurrently. On August 30, 1994, the trial court accepted the plea agreement

and sentenced appellant accordingly.

         On April 30, 1996,1 appellant filed a post-conviction petition alleging the

ineffective assistance of counsel. The State answered the petition and attached a

copy of the transcript from the guilty plea hearing. After reviewing the petition, the

answer, and the transcript, the trial court dismissed the petition without holding an

evidentiary hearing. See Tenn. Code Ann. §40-30-209(a) (Supp. 1996). The trial

court found that appellant’s counsel was not deficient and that appellant’s plea was

voluntary.




         1
           Appellant’s petition was timely filed under our supreme court’s ruling in Arnold C arter v. State ,
No. 03S 01-961 2-CR -00117 (Tenn . at Knox ville, Septem ber 8, 19 97). Und er the pre vious po st-
conviction act, appe llant had thre e years fro m the date of his conviction to file a post-c onviction p etition.
Tenn. Code Ann. §40-30-102 (repealed 1995). Because that time frame had not expired when the 1995
Post-C onviction A ct took e ffect, app ellant had o ne year fro m its eff ective da te, May 10 , 1995, in w hich to
file his petition. Carter, Slip. op. at 6.

                                                         2
        Appellant’s claims that the trial court erred in failing to hold an evidentiary

hearing and appoint counsel are without merit. Pursuant to Tennessee Code

Annotated section 40-30-209, a trial court is obligated to review the entire case after

the State files an answer to the petition. After reviewing the petition, the response,

files, and records, if the court determines that the petitioner is not entitled to relief, the

court shall dismiss the petition. Id. (emphasis added). The record reflects that the

trial court followed this procedure and, therefore, committed no error.2

         Appellant also contends that he was denied the effective assistance of counsel

at his guilty plea hearing. Appellant claimed that his counsel was ineffective in failing

to properly investigate the case, prepare for trial, and consult with the appellant.

However, in its order of dismissal, the trial court noted appellant’s statement at the

guilty plea hearing that he was satisfied with his counsel. Appellant also indicated that

he knew of nothing that counsel should have done but failed to do.

         Appellant also alleged that his counsel was ineffective in failing to fully explain

the right of self-incrimination prior to his entry of a guilty plea. We note, as the trial

court did, that during the guilty plea hearing appellant affirmatively stated that he

understood his right against self-incrimination and that he had discussed that right with

his attorney. Moreover, the trial court explained that right to the appellant and he

affirmatively indicated his understanding.

         In addition, appellant alleges his counsel coerced him to plead guilty by failing

to give meaningful advice about the consequences of his guilty plea.3 However, the

guilty plea transcript indicates that the trial court thoroughly and carefully explained to

appellant the relinquishment of rights and the consequences of pleading guilty,

including enhancement of any later sentence, discretion of the parole board in early



        2
         We note that the same trial judge presided over the guilty plea hearing and the post-conviction
procee ding. As a result, he w as fam iliar with the circu msta nces s urround ing appe llant’s case .

        3
        Appellan t raises se veral othe r instance s of ineffe ctive ass istance o f couns el in his brief.
Howe ver, beca use the se were not include d in his origina l petition, they are n ot appro priate for a ppellate
review.

                                                        3
release, and the likelihood that he would serve the sentence day-for-day as a sex

offender. As a result, we cannot say that appellant was not fully informed about the

consequences of his plea.

        Finally, appellant challenges the validity of the two indictments charging him

with rape of a child and aggravated sexual battery. He claims that they failed to allege

the requisite mens rea and were fatally deficient, relying on State v. Roger Dale Hill,

Sr., No. 01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, June 20, 1996).4 In its

review of that case, the supreme court recently reversed the ruling of this Court. State

v. Roger Dale Hill, Sr., No. 01S01-9701-CC-0005 (Tenn. at Nashville, November 3,

1997). Recognizing that modern statutory codes seek to avoid the hypertechnical

nature of common law pleading, the court found that the omission of the mens rea

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

rea can be inferred from the criminal conduct alleged, the indictment conforms to

statutory requirements, and meets constitutional requirements of notice, an indictment

is sufficient. Slip op. at 3. Accordingly, we find that the mens rea for the indictments

charging appellant with rape of a child and aggravated sexual battery can be

reasonably inferred from the conduct alleged. Appellant’s issue is without merit.

        Our review indicates that the trial court’s findings in the order of dismissal are

fully supported by the record. Accordingly, we affirm the dismissal of appellant’s

petition for post-conviction relief.




        4
          The Hill opinion was not released until after appellant’s petition was filed. His petition did allege
that his attorney failed to advise him about the elements of the offense and specifically the intent
requirement. However, the Hill issue was fully addressed in appellant’s briefs and various motions
before this Court. Because of the pro se nature of the proceedings, we believe the issue has been
properly pre served for appe llate review.

                                                      4
                                    _______________________________
                                    William M. Barker, Judge


____________________________
Joe B. Jones, Presiding Judge




____________________________
Thomas T. Woodall, Judge




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