         IN THE CRIMINAL COURT OF APPEALS OF TENNESSEE

                            AT KNOXVILLE          FILED
                        NOVEMBER 1997 SESSION     February 6, 1998

                                                 Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk




CHARLES RAY O’QUINN,              )
                                  )
           Appellant,             )   C.C.A. No. 03C01-9703-CR-00084
                                  )
vs.                               )   Johnson County
                                  )
HOWARD CARLTON, WARDEN,           )   Honorable Lynn Brown
and STATE OF TENNESSEE,           )
                                  )
           Appellees.             )   (Habeas Corpus)
                                  )


FOR THE APPELLANT:                    FOR THE APPELLEE:

CHARLES RAY O’QUINN                   JOHN KNOX WALKUP
N.E.C.C. #100601                      Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683               MICHAEL J. FAHEY, II
Pro se                                Assistant Attorney General
                                      Criminal Justice Division
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493




OPINION FILED: _____________

AFFIRMED


CURWOOD WITT, JUDGE
                                     OPINION



              Charles Ray O’Quinn, 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. On July 27, 1989, the petitioner pleaded guilty

to two counts of aggravated rape. The offenses occurred in April or May, and in

June, 1988. He received Range II sentences of 35 years in the aggregate. The

petitioner contends that his convictions for aggravated rape are void because the

indictment failed to allege the mens rea for that offense. See State v. Roger Dale

Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App., Nashville, June 20, 1996), rev'd,

954 S.W.2d 725 (Tenn. 1997).



              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, 222 Tenn. 50, 432 S.W.2d 656 (1968); State ex rel v. Wade

v. Norvell, 1 Tenn. Crim. App. 447, 443 S.W.2d 839 (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 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). Therefore, we note initially that the petitioner’s claims are not cognizable in

a habeas corpus proceeding. The proscriptive statute does not indicate that the

accused’s culpable mental state is a material element of the offense. Tenn. Code

Ann. § 39-2-603 (1982) (repealed 1989).          Under these circumstances, “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 Slagle v.

State, No. 03C01-9704-CR-00145 (Tenn. Crim. App., Knoxville, June 10, 1997),

perm. app. denied (Tenn. 1997); State v. Robert Read, Jr., No. 01C01-9603-CR-



                                          2
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).



              In James Clyde Saylor v. Howard Carlton, No. 03C01-9612-CR-

00453, slip op. at 3 (Tenn. Crim. App., Knoxville, Oct. 31, 1997), this court was

faced with a habeas corpus petition that, as in the present case, attacked an

indictment based upon a pre-1989 aggravated rape, a crime that was defined as

“unlawful sexual penetration of another accompanied by any of the following

circumstances . . .” including the age of the victim being less than thirteen years.

Tenn. Code Ann. § 39-2-603(a)(4) (1982) (repealed 1989). The court found that

habeas corpus relief was not available because the defect “about which the

petitioner complains did not divest the trial court of jurisdiction or render the

subsequent post-indictment proceedings a nullity.” James Clyde Saylor, slip op. at

3.



              Regardless of the propriety of a procedural disposition of the petition,

the petition fails on the more substantive grounds that the indictment is sufficient in

all respects.1 In State v. Roger Dale Hill, Sr., No. 01C01-9508-CC-00267 (Tenn.

Crim. App., Nashville, June 20, 1996), rev’d, 954 S.W.2d 725(Tenn. 1997), a panel

of this court ruled that the statutory offense of aggravated rape did not “plainly

dispense” with a mens rea of the crime and thus, the indictment, which did not

allege a means rea, did not include an essential element of the offense and was,

therefore, void.



              First, we note that the petitioner is entitled to no relief under this


1

      Based upon the same reasoning, infra, the petitioner’s claims are likewise
inapposite for a post-conviction petition.

                                          3
court’s decision in Roger Dale Hill. The present appeal

        stems from a denial of a petition for post-conviction relief and involves
        an indictment issued prior to the 1989 changes in the Code. The
        opinion in Hill was based upon this court’s interpretation of T.C.A. §
        39-11-301(c), which was enacted in 1989. That statute provides, in
        pertinent part, that “[a] culpable mental state is required within this title
        unless the definition of the offense plainly dispenses with a mental
        element.” Prior to 1989, however, the Criminal Code did not contain
        a comparable statute. Accordingly, the decision in Hill does not
        control our review of the issue raised herein.

Curtis Newbern v. State, No. 02C01-9702-CR-00071, slip op. at 2 (Tenn. Crim.

App., Jackson, July 1, 1997) (order, Tenn. Ct. Crim. App. R. 20); see also Gregory

L. Hatton v. State, No. 02C01-9611-CC-00407, slip op. at 2-3 (Tenn. Crim. App.,

Jackson, Feb. 19, 1997) (order, Tenn. Ct. Crim. App. R. 20) (use of the words found

in the language of the pre-1989 statute “sufficiently apprised the appellant of the

offense charged under the law at that time”).



               Furthermore, even if the Hill analysis applies to the present case, our

supreme court’s decision reversing this court’s decision conclusively demonstrates

that the petitioner’s claim has no merit. See Hill, 954 S.W.2d 725.



               The supreme court in Hill said that a charging instrument which does

not allege a culpable mental state, the statutory definition of the crime not plainly

dispensing with a mental element, is nevertheless sufficient to support prosecution

where

        (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.

Hill, 954 S.W.2d at 726-27. The supreme court scrutinized the Hill indictment under

the three-part inquiry above and determined the indictment was legally sufficient to

support prosecution of the accused, notwithstanding the absence of an explicit

allegation of a mens rea. Hill, 954 S.W.2d at 727-29. Specifically, the supreme



                                             4
court noted, “[T]he act for which the defendant is indicted, ‘unlawfully sexually

penetrat[ing]’ a person under the age of thirteen, 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.” Hill, 954 S.W.2d

at 729.



              We find the indictments at bar to be virtually identical to the

aggravated rape indictment upheld in Hill.        They closely follow the statutory

language describing the crimes. They comply with the statutory form by stating the

“facts constituting the offense in ordinary and concise language, without prolixity or

repetition, in such a manner as to enable a person of common understanding to

know what is intended, and with that degree of certainty which will enable the court,

on conviction, to pronounce the proper judgment . . . .” See Tenn. Code Ann. § 40-

13-202 (1997); Hill, 954 S.W.2d at 727, slip op. at 3. Further, the mental state is

capable of logical inference from the conduct alleged. See Hill, 954 S.W.2d at 729;

see also State v. Marshall, 870 S.W.2d 532, 537-38 (Tenn. Crim. App. 1993). As

the supreme court noted in Hill, the allegation of “unlawfully sexually penetrat[ing]”

a victim necessarily requires an intentional, knowing or reckless mens rea. Hill, 954

S.W.2d 729. Therefore, the allegation raises an inference of the required mental

state. Hill, 954 S.W.2d at 729.



              Accordingly, the indictment satisfies the three Hill requirements for

sufficient allegations to support prosecution. See Hill, 954 S.W.2d at 729. The trial

court acted properly in summarily dismissing the petition prior to the state’s

response and prior to a hearing. See Tenn. Code Ann. § 29-21-109 (1997).

Moreover, the respondent is obliged to answer only “if [an answer is] required.”

Tenn. Code Ann. § 29-21-116(a)(1997). “It is only after the writ has been issued

and the respondent served that Tenn. Code Ann. § 29-21-116 is applicable.”

William Jones v. State, No. 01C01-9308-CR-00272, slip op. at 3 (Tenn. Crim. App.,

Nashville, July 14, 1995), remanded on other grounds (Tenn. 1996); see also State



                                          5
v. Joe Willie Harris, No. 01C01-9309-CR-00304 (Tenn. Crim. App., Nashville, Nov.

10, 1994), perm. app. denied (Tenn. 1995).        In the present case, summary

dismissal without the issuance of a writ was proper, James Clyde Saylor, slip op. at

3, and hence the respondent need not have been served and was not required to

answer. See generally Henry B. Waggoner v. State, No. 01C01-9604-CC-00142

(Tenn. Crim. App., Nashville, July 11, 1997); Calvin Murry v. Herman C. Davis, No.

89-37-III (Tenn. Crim. App., Nashville, Feb. 9, 1990).



             The judgment of the trial court is affirmed.




                                                _______________________
                                                 CURWOOD WITT, JUDGE

CONCUR:



_______________________________
JOE B. JONES, PRESIDING JUDGE


_______________________________
PAUL G. SUMMERS, JUDGE




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