             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                            DECEMBER 1998 SESSION
                                                         February 24, 1999

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
HARRY E. CONKLIN,                   )
                                    )    C.C.A. NO. 01C01-9708-CR-00347
             Appellant,             )
                                    )    DAVIDSON COUNTY
VS.                                 )
                                    )    HON. WALTER C. KURTZ,
STATE OF TENNESSEE,                 )    JUDGE
                                    )
             Appellee.              )    (Post-Conviction)



FOR THE APPELLANT:                       FOR THE APPELLEE:


MICHAEL G. STEWART                       JOHN KNOX WALKUP
511 Union St., Suite 2100                Attorney General & Reporter
Nashville, TN 37219
                                         DARYL J. BRAND
                                         Asst. Attorney General
                                         John Sevier Bldg.
                                         425 Fifth Ave., North
                                         Nashville, TN 37243-0493

                                         VICTOR S. JOHNSON, III
                                         District Attorney General

                                         WILLIAM REED
                                         Asst. District Attorney General
                                         222 Second Ave., North
                                         Suite 500
                                         Nashville, TN 37201-1649



OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              In 1995, the petitioner was charged in the indictment with three counts of

rape of a child and three counts of aggravated sexual battery upon a child less than

thirteen years of age. After negotiations with the State, the petitioner pled guilty to the

three aggravated sexual battery counts, and the child rape counts were dismissed.

Pursuant to the plea agreement and discussions at the guilty plea hearing, the trial court

sentenced the petitioner as a Range I standard offender to three consecutive terms of

eleven years imprisonment, for an effective sentence of thirty-three years. In August

1996, the petitioner filed a petition for post-conviction relief, alleging several grounds for

relief. Following an evidentiary hearing, the post-conviction court denied the petition.

The petitioner now appeals, arguing that his guilty plea was unknowing and involuntary

and that his indictment was constitutionally defective. We affirm the trial court’s order

denying the petition.



              The petitioner first argues his guilty plea was unknowing and involuntary

because he did not understand what “consecutive sentencing” meant. He contends that

a trial court should be required to define the term “consecutive” to defendants before their

pleas can be considered knowing and voluntary.



              It is undisputed that during the guilty plea hearing in this case, the trial court

did not explain to the petitioner what the term “consecutive” meant. Nonetheless, the

petitioner represented to the trial court that he understood he would receive a consecutive

sentence pursuant to his plea bargain and that he wanted to voluntarily enter a plea of

guilty. At the post-conviction evidentiary hearing, however, the petitioner testified that

despite the fact his plea bargain specified three consecutive eleven year terms, he



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believed “consecutive” meant the same as “concurrent.” He also testified his attorney told

him that with a thirty percent release eligibility, he would be released “in about four, four

and a half years” and to the extent that this was not true, he believed his attorney

threatened and coerced him into pleading guilty.



              Steve Young and Ross Alderman of the public defender’s office appointed

to represent the petitioner also testified. According to their testimony, they explained to

the petitioner the nature of the sentence and that it was a thirty-three year sentence, and

the petitioner seemed to understand the effective sentence he would receive. The post-

conviction court specifically accredited Young’s and Alderman’s testimony, finding “that

this petitioner clearly understood that the sentence was 33 years, that the three 11 year

sentences will run consecutive and that his attempt to convince the court otherwise of a

misunderstanding is just not credible.” The evidence does not preponderate against this

finding. To the contrary, inasmuch as the petition to enter a guilty plea and the transcript

of the guilty plea hearing corroborate Young’s and Alderman’s testimony, as the post-

conviction court noted, the evidence in the record supports this finding. Because the

petitioner has not successfully challenged this finding, his argument must fail. Cooper

v. State, 849 S.W.2d 744, 746 (Tenn. 1993)(court’s findings are conclusive unless

evidence preponderates against the judgment).



              The petitioner next argues that the aggravated sexual battery indictments

were constitutionally defective because they failed to allege scienter. He points out that

even though T.C.A. § 39-13-504 defines aggravated sexual battery as “unlawful sexual

contact” without any reference to a specific mens rea, the statute defining “sexual

contact” provides the specific mens rea of “intentional,” see T.C.A. § 39-13-501(6).

Based on this, the petitioner contends that the “statute setting out the crime” of



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aggravated sexual battery “plainly requires” the specific mens rea of “intentional.” As

such, the petitioner distinguishes this case from State v. Hill, 954 S.W.2d 725 (Tenn.

1997)(defendant charged with aggravated rape, which does not expressly require a

specific culpable mental state), and argues that because the indictment in this case did

not specifically allege the specific mens rea of “intentional,” it is insufficient and his

underlying convictions must be reversed.



                Each of the three indictments charging the petitioner with aggravated sexual

battery allege that the petitioner “did engage in unlawful sexual contact with [the victim],

a child less than thirteen (13) years of age, in violation of Tennessee Code Annotated

§ 39-13-504, and against the peace and dignity of the State of Tennessee.” This

language is almost identical to the aggravated sexual battery indictment challenged in

Ruff v. State, 978 S.W.2d 95, 96-97 (Tenn. 1998).             In that case, the defendant

challenged an indictment alleging that he “did unlawfully engage in sexual contact with

[A.K.], a person less than thirteen (13) years of age, in violation of Tennessee Code

Annotated, Section 39-13-504, all of which is against the peace and dignity of the State

of Tennessee.” Id. at 97. The Tennessee Supreme Court recognized that while the

aggravated sexual battery statute, T.C.A. § 39-13-504, did not explicitly include a

requisite mental state, it defined the crime as “unlawful sexual contact,” a term defined

by another statutory section, T.C.A. § 39-13-501(6), which itself explicitly included the

mental state of “intentional.” Ruff, 978 S.W.2d at 97. Even so, the Tennessee Supreme

Court stated,

              Like the aggravated rape statute in Hill, the aggravated sexual
       battery statute in [this] case does not expressly require a culpable mental
       state. Rather, one must ascertain the requisite mental state by referring to
       the definitions in Tenn. Code Ann. § 39-13-501, found in the same chapter.
       The sole distinction in Hill is the fact that a different provision supplied the
       mental state. This distinction is not pertinent here. Therefore, we find Hill
       completely analogous and applicable to the case under submission.



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Id. (footnote omitted).



              Applying the Hill analysis, the Tennessee Supreme Court in Ruff concluded

that the indictment was sufficient and that the conviction was therefore valid. Id. at 97-98.

Because the indictment in this case is substantively similar, we too must conclude that

the indictment satisfies the Hill requirements and that the petitioner’s conviction was

therefore valid.



              Finding no merit to the petitioner’s arguments, we affirm the trial court’s

order denying his petition for post-conviction relief.




                                                  _______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
NORMA McGEE OGLE, Judge




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