             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE             FILED
                           JANUARY 1998 SESSION
                                                       September 9, 1998

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
FRANK CRITTENDEN,                 )
                                  )    03C01-9707-CC-00315
      Appellant                   )
                                  )    MORGAN COUNTY
v.                                )
                                  )    HON. E. EUGENE ELBEN
CHARLES JONES, Warden,            )
ex rel. STATE OF TENNESSEE        )    (Habeas Corpus)
                                  )


For the Appellant:                     For the Appellee:

Frank Crittenden, pro se               John Knox Walkup
M.C.R.C.F., No. 244405                 Attorney General & Reporter
P.O. Box 2000
Wartburg, TN. 37887-2000               Timothy F. Behan
                                       Assistant Attorney General
                                       425 Fifth Avenue North
                                       2d Floor, Cordell Hull Building
                                       Nashville, TN. 37243-0493

                                       Charles E. Hawk
                                       District Attorney General
                                       P.O. Box 703
                                       Kingston, TN. 37763-0703




OPINION FILED:_____________________

AFFIRMED

WILLIAM M. BARKER, JUDGE
                                                    OPINION

         The appellant, Frank Crittenden, appeals as of right the Morgan County

Criminal Court’s dismissal of his pro se petition for a writ of habeas corpus. We affirm

the judgment of the trial court.

         On December 15, 1994, the appellant pled guilty to eight (8) counts of a thirty

six (36) count indictment charging him with aggravated rape, rape, and unlawful

sexual contact with his daughter.1 The trial court sentenced appellant to twenty-five

(25) years for each of the eight counts, with four counts to be served concurrently and

four counts to be served consecutively, for a total effective sentence of one hundred

(100) years. No direct appeal was taken from the trial court’s judgment.

         Appellant, thereafter, filed a petition for post-conviction relief alleging that, but

for the ineffective assistance of his counsel, he would have filed a timely notice of

appeal from the trial court’s sentencing order. This Court affirmed the trial court’s

finding that appellant had waived his right to a direct appeal and upheld the dismissal

of his post-conviction petition. See Frank Crittenden v. State, No. 01C01-9510-CR-

00344 (Tenn. Crim. App. at Nashville, Nov. 27, 1996), perm. app. granted (Tenn. Nov.

24, 1997).2

        The appellant filed a pro se petition for a writ of habeas corpus on January 3,

1997, challenging the validity of his indictment. Relying upon this Court’s decision in

State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville,

June 20, 1996), perm. app. granted (Tenn. 1996), appellant argued that the indictment

was unconstitutional in failing to include the requisite mens rea for the aggravated

rape offenses. The trial court summarily dismissed appellant’s petition upon

determining that the indictment contained sufficient language to inform the appellant

        1
            The re cord is un clear as to which c ounts w ere includ ed in app ellant’s plea a greem ent.

        2
          The appellant filed his pro se petition for a w rit of habea s corpu s prior to rec eiving perm ission to
app eal to the s upre me cour t in the post -con viction proc eed ing. H is app eal in th at ca se is c urre ntly
pending. Although not raised by either side, we note that the appellant’s habeas corpus petition may run
simultaneously with his appeal to the supreme court since the cases involve separate and distinct
issues . See Laney v. S tate, 826 S.W .2d 117, 1 18-19 (T enn. 199 2).

                                                          2
of the rape charges. The trial court further ruled that any deficiency in the indictment

did not render the judgment void, and any challenge to the indictment should have

been raised prior to the swearing in of the jury.

         We agree with the trial court’s decision to dismiss appellant’s habeas corpus

petition.3 First, it is questionable whether the appellant can challenge his indictment in

a habeas corpus proceeding. See State ex rel. Newsom v. Henderson, 424 S.W.2d

186, 189 (Tenn. 1968); Haggard v. State, 475 S.W.2d 186, 187 (Tenn. Crim. App.

1971); Brown v. State, 445 S.W.2d 669, 674 (Tenn. Crim. App. 1969). But cf. Archer

v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (stating that habeas corpus relief is

available “only when ‘it appears upon the face of the judgment or the record of the

proceedings upon which the judgment is rendered’ that a convicting court was without

jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of

imprisonment or other restraint has expired”).

         Nevertheless, even when addressed on the merits, appellant’s claim must fail in

light of our supreme court’s decision in State v. Hill, 954 S.W.2d 725, 729 (Tenn.

1997). In Hill, the Court upheld an indictment that is virtually identical to the indictment

in appellant’s case. On the counts of rape, appellant’s indictment stated in pertinent

part:

                [O]n a day in ____,4 in Davidson County, Tennessee and before
         the finding of this indictment, [Frank Crittenden] did engage in unlawful
         sexual penetration of [the victim] (Female, D.O.B. February 17, 1978),
         and force or coercion was used to accomplish the act, in violation of
         Tennessee code Annotated § 39-13-503, and against the peace and
         dignity of the State of Tennessee.

On the counts of aggravated rape, the indictment stated as follows:

                [O]n a day in ____, in Davidson County, Tennessee and before
         the finding of this indictment, [Frank Crittenden] did engage in unlawful


         3
          Trial cou rts ma y sum mar ily dismiss a petition for a w rit of habea s corpu s if the petition fa ils to
state a co gnizable c laim on its face. See Tenn. Code A nn. § 29-21-109 (Supp. 199 7).

         4
          The appellant was charged with multiple counts of rape and aggravated rape that occurred
between the years 1983 and November 4, 1993. Each count set forth a date or a range of time in which
the particular offense occurred. On the rape counts that occurred before 1989, the appellant was
charge d with violating T ennes see C ode An notated S ection 39 -2-603 ( repeale d 1989 ).

                                                          3
       sexual penetration of [the victim] (Female, D.O.B. February 17, 1978), a
       child less than thirteen (13) years of age, in violation of Tennessee Code
       Annotated § 39-13-502, and against the peace and dignity of the State
       of Tennessee.

       The language in appellant’s indictment sets forth the statutory provisions

making it a Class B felony for anyone to unlawfully sexually penetrate a victim with the

use of force or coercion, Tenn. Code Ann. § 39-13-503(b), and a Class A Felony for

anyone to unlawfully sexually penetrate a victim when the victim is less than thirteen

(13) years of age. Tenn. Code Ann. § 39-13-502(b). Although the mens rea for the

rape offenses is omitted from the indictment, we conclude that it can be logically

inferred from the nature and language of the charges. See Hill, 954 S.W.2d at 729.

The indictment contains facts constituting each offense and provides sufficient notice

of the charges as mandated by our constitution.

       Based upon the foregoing, we conclude that the indictment is valid and affirm

the judgment of the trial court.



                                                ___________________________
                                                WILLIAM M. BARKER, JUDGE



CONCUR:


____________________________
GARY R. WADE, Presiding Judge


____________________________
JOSEPH M. TIPTON, JUDGE




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