      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE               FILED
                      AUGUST 1997 SESSION
                                                    September 10, 1997

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk

STEVEN D. BASS,                )
                               ) C.C.A. No. 03C01-9612-CR-00466
      Appellant,               )
                               ) Johnson County
V.                             )
                               ) Honorable Lynn W. Brown, Judge
                               )
STATE OF TENNESSEE,            ) (Habeas Corpus)
                               )
      Appellee.                )



FOR THE APPELLANT:               FOR THE APPELLEE:

Steven D. Bass, Pro Se           Charles W. Burson
214227 NECC                      Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683-5000     Peter M. Coughlan
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 David E. Crockett
                                 District Attorney General
                                 Route 19, Box 99
                                 Johnson City, TN 37601




OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                               OPINION
       The appellant, Steven D. Bass, pled guilty to three counts of aggravated

robbery and one count of aggravated rape. He received an effective sentence of

fifteen years incarceration. Thereafter, he filed a petition for habeas corpus

relief alleging that the indictment against him was fatally insufficient. The trial

court denied the appellant's petition. He appeals the trial court's decision by

asserting that State v. Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. at

Nashville, June 20, 1996), supports the proposition that the judgment entered

against him is void because the indictment failed to allege the requisite mens rea

for aggravated rape.



       First, we note that several panels of this Court have declined to follow the

holding in Hill.1 Our Supreme Court has granted permission to appeal and is

currently reviewing that decision. It, therefore, does not have precedential value

with this Court.



       It is well established that challenges to the sufficiency of an indictment

cannot be tested in a habeas corpus proceeding. Underwood v. Bomar, 335

F.2d 783, 788 (6th Cir. 1964); Brown v. State, 445 S.W.2d 669, 674 (Tenn. Crim.

App. 1969); Haggard v. State, 475 S.W.2d 186, 187 (Tenn. Crim. App. 1971). It

is, however, equally well established that an exception to the general proposition

can be made if the indictment is so fatally defective that the convicting court

lacked jurisdiction to render judgment. Myers v. State, 462 S.W.2d 265, 267

(Tenn. Crim. App. 1970).



       In the instant case the appellant contends that his indictment failed to

allege the requisite mens rea for aggravated rape and is, therefore, fatally


       1
           Although we will not reach the substantive issue, this panel is also not inclined to follow Hill.

                                                    -2-
defective. We find that the alleged defect, even under the appellant’s

interpretation, would not have deprived the trial court of jurisdiction. Therefore,

this issue is not proper for habeas corpus review.



       Accordingly, we find no error of law mandating reversal. The trial court's

dismissal of the appellant's petition is affirmed in accordance with Tenn. R. Ct.

Crim. App., Rule 20.




                                                 __________________________
                                                 PAUL G. SUMMERS, Judge


                                         -3-
CONCUR:



(SEE SEPARATE CONCURRING OPINION)
GARY R. WADE, Judge



__________________________
WILLIAM M. BARKER, Judge




                             -4-
        IN THE COURT OF CR IMINAL APPEALS OF TENNESSEE

                                        AT KNOXVILLE

                                   AUGUST 1997 SESSION                      FILED
                                                                           September 10, 1997

STEVEN D. BASS,                               )                        Cecil Crowson, Jr.
                                              ) C.C.A. No. 03C01-9612-CR-00466
                                                                        Appellate C ourt Clerk
        Appellant,                            )
                                              ) Johnson County
V.      )
                                              ) Honorable Lynn W . Brown, Judge
                                              )
STATE OF TENNESSEE,                           ) (Habeas Corpus)
                                              )
        Appellee.                             )


                                        CONCURRING OPINION

        I concur in the affirm ance. Yet footnote one of the majority opinion provides that "this panel is

not inclined to follow Hill." In my view, it is not necessary to m ake such a broad statement in order to

resolve the legal issue presented. The indictment is sufficient to give notice of the offense; it alleges

the defendant "did unlawfully and coercively, while armed with a weapon ... sexually penetrate" the

victim. In State v. John Haws Burrell, No. 03C01-9404-CR-00157, slip op. at 33 (Tenn. Crim. App., at

Knoxville, Feb. 11, 1997), perm. to appeal filed, Apr. 10, 1997, a panel of this court ruled that an

indictment that alleged the defendant "did then and there unlawfully engage in unlawful sexual

penetration ... by the use of coercion" was sufficient. The rationale was that the term coercion implied

an intentional or knowing act. In view of that ruling, I would hold that the conviction was not void.



        Moreover, even if the indictment for rape were so defective as to deprive the court of

jurisdiction on the rape conviction, this habeas corpus petitioner remains lawfully confined on the

robbery convictions. The latter sentences do not expire for several more years. Thus, the petitioner

would not be entitled to immediate release.



                                              _____________________________________
                                              Gary R. Wade, Judge




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