State of Tennessee v. Rogers L. McKinley ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
SEPTEMBER 1997 SESSION
January 6, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE )
) NO. 03C01-9612-CR-00455
Appellee, )
) BLEDSOE COUNTY
v. )
) Hon. Buddy D. Perry
ROGERS L. MCKINLEY )
) (Habeas Corpus)
Appellant. )
)
For the Appellant For the Appellee
Rogers L. McKinley, pro se Charles W. Burson
T.D.O.C. No. 138372 Attorney General & Reporter
Route 4, Box 600
Pikeville, TN. 37367 Peter M. Coughlan
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN. 37243-0493
J. Michael Taylor
District Attorney General
James W. Pope, III
Assistant District Attorney General
265 Third Avenue, Ste. 300
Dayton, TN. 37321
OPINION FILED:____________________
AFFIRMED PURSUANT TO RULE 20
WILLIAM M. BARKER, JUDGE
OPINION
The appellant, Rogers L. McKinley, appeals the Bledsoe County Criminal
Court’s dismissal of his petition for a writ of habeas corpus. In 1990, the appellant
entered guilty pleas and was convicted of two counts of rape and one count of
aggravated burglary. The trial court sentenced the appellant as a Range II multiple
offender to concurrent sentences of fifteen (15) years for each rape and ten (10) years
for the aggravated burglary. No direct appeal was taken from those convictions and
sentences.
In this appeal, the appellant contends that the trial court erred in dismissing his
petition for a writ of habeas corpus without a hearing. Pursuant to Rule 20 of the
Tennessee Court of Criminal Appeals, we affirm the judgment of the trial court.
In his pro se habeas corpus petition, the appellant challenged the validity of the
indictment charging him with aggravated rape. Relying upon this Court’s decision in
State v. Roger Dale Hill,1 appellant argued that the indictment was fatally deficient in
failing to include the requisite mens rea for the aggravated rape offense. The trial
court, however, declined to decide the case on its merits. Instead, the trial court
dismissed appellant’s petition upon determining that the judgments were not void on
their face. The trial court further declined to treat the petition as one seeking post-
conviction relief because the petition was not filed in the court where the convictions
were originally obtained. Tenn. Code Ann. § 40-30-204(a) (Supp. 1996).
We agree with the trial court’s decision to dismiss appellant’s petition. It is well
established that challenges to the sufficiency of an indictment cannot be tested in
habeas corpus proceedings. See 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).
Furthermore, the petition could not have been considered as one seeking post-
conviction relief. Appellant did not file the petition in the trial court where he obtained
1
No. 01C 01-950 8-CC -00267 (Tenn . Crim. A pp. at Na shville, June 20, 1996 ), per. app. granted
(Tenn. 1996).
2
his original convictions, as required by Tennessee Code Annotated section 40-30-204
(Supp. 1996). Moreover, the three-year statute of limitations, then in effect, precluded
him from filing a post-conviction petition in 1996. See Tenn. Code Ann. § 40-30-102
(repealed 1995).
Assuming arguendo, however, that the trial court should have considered
appellant’s petition on its merits, the petition nevertheless is without merit. In
challenging the indictment, appellant relies solely on this Court’s decision in Roger
Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, June 20, 1996).
Our supreme court has recently reversed the decision in Hill. See State v. Hill,
No. 01S01-9701-CC-0005 (Tenn. at Nashville, Nov. 3, 1997). The Court recognized
that modern statutory codes serve to avoid the hypertechnical requirement of common
law pleading. Therefore, as reasoned by the Court, an omission of the mens rea
element from an offense is not always fatal to the indictment. See Slip op. at 5-6.
The Court held that an indictment is legally sufficient if: (1) Its language satisfies the
constitutional requirement of notice to the accused, (2) Its form meets the
requirements set forth in Tennessee Code Annotated section 40-13-202 (Supp.
1996),2 and (3) The requisite mental state can be logically inferred from the alleged
criminal conduct. See id. at 3.
The indictment in this case contains much more language respecting the mens
rea than that in Hill. It states in pertinent part:
THE GRAND JURORS for the State aforesaid, being duly
summoned, elected, impaneled, sworn and charged to inquire for
the body of the County aforesaid, upon their oaths present:
That Rogers McKinley heretofore on March 31, 1990, in the
County aforesaid, did unlawfully, forcibly, or coercively, sexually
penetrate Linda Simmons, while he was armed with a weapon or an
article used or fashioned in a manner to lead the victim reasonably to
believe it to be a weapon, in violation of Tennessee Code Annotated
39-13-502, against the peace and dignity of the State.
2
Unde r Tenn essee Code Annota ted sec tion 40-13 -202 (S upp. 199 6), an indictm ent m ust state
the charged offense in ordinary and concise language that will provide the accused with a common
unders tanding a nd will enab le the trial cour t to enter a p roper jud gme nt.
3
The indictment in Hill did not charge that the appellant acted unlawfully, forcibly
or coercively. We find that the indictment in this case would have been valid even
absent our supreme court’s holding in State v. Hill. Moreover, it sets forth facts
constituting the offense and provides the appellant with sufficient notice of the charges
as mandated by our constitution. Accordingly, we conclude that the indictment is
valid.
Pursuant to Rule 20 of the Tennessee Court of Criminal Appeals, the judgment
of the trial court is affirmed.
____________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
__________________________
JOHN H. PEAY, JUDGE
__________________________
DAVID G. HAYES, JUDGE
4