John McDonald v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1998 SESSION
December 8, 1998
Cecil W. Crowson
Appellate Court Clerk
JOHN McDONALD, )
) NO. 01C01-9711-CR-00529
Appellant, )
) DAVIDSON COUNTY
VS. )
) HON. J. RANDALL WYATT, JR.,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN McDONALD, Pro Se JOHN KNOX WALKUP
#125039 Attorney General and Reporter
P.O. Box 5000
Mountain City, TN 37683-5000 TODD R. KELLEY
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
VICTOR S. JOHNSON III
District Attorney General
KATY NOVAK MILLER
Assistant District Attorney General
222 - 2nd Avenue North
Washington Square, Suite 500
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
Petitioner appeals the dismissal of his motion to re-open petition for post-
conviction relief. He claims that the 1987 indictment for aggravated rape and
aggravated sexual battery under which he was convicted failed to vest jurisdiction
in the trial court as per State v. Hill, 954 S.W.2d 725 (Tenn. 1997). After a thorough
review of the record provided, we find this claim to be without merit and AFFIRM the
decision of the trial court.
PROCEDURAL HISTORY
Petitioner was indicted for aggravated rape and aggravated sexual battery
in 1987. A jury convicted him of two counts of aggravated sexual battery, and the
judgments became final in June 1990. Petitioner filed a petition for post-conviction
relief in April 1997, which was dismissed by the trial court on July 21, 1997. On
August 13, 1997, he filed a motion to re-open the petition. This motion, likewise,
was dismissed. This appeal followed.
RECORD ON APPEAL
It is the appellant’s duty to prepare a record which conveys a fair and
accurate account of what transpired with respect to the issues which form the basis
of the appeal in order to allow for a meaningful appellate review. Tenn. R. App. P.
24; State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). This appeal is
essentially based upon sufficiency of the indictment, yet petitioner failed to include
a copy of the indictment in the record. We are, therefore, unable to provide
appellate review.
STATUTE OF LIMITATIONS
2
Petitioner has yet another procedural problem. Tenn. Code Ann. § 40-30-
102 (repealed 1995) allowed petitioners three years from the date of final action of
the highest state appellate court in which to file for post-conviction relief. The Post-
Conviction Procedure Act of 1995 did not grant petitioners seeking post-conviction
relief an additional year for filing petitions that were already barred by the statute of
limitations prior to May 10, 1995. State v. Carter, 952 S.W.2d 417, 420 (Tenn.
1997).
In the case under review, this Court affirmed petitioner’s convictions and
sentences on March 1, 1990. The Supreme Court denied permission to appeal on
June 4, 1990. Thus, his petition was time-barred as of June 1993. The 1995 Act
does not grant petitioner a reprieve from this limitation. Furthermore, none of the
exceptions to the statute of limitations apply. See Tenn. Code Ann. § 40-30-202(b).
Nevertheless, assuming petitioner’s claim was not time-barred, it would still
be without merit. Petitioner failed to allege any grounds that would entitle him to
have the original petition for post-conviction relief re-opened as required by Tenn.
Code Ann. § 40-30-217(a).
STATE V. HILL
Petitioner challenges the validity of his 1987 indictment. Without a valid
indictment, there can be no jurisdiction and no prosecution. Dykes v. Compton, __
S.W.2d __, __ (Tenn. 1998). However, we conclude the alleged language in the
indictment was sufficient.
As derived from the trial court’s order, the indictment presumably reads in
part:
“Count one . . . defendant ‘unlawfully, and feloniously did commit the
offense of aggravated sexual battery by engaging in unlawful sexual
contact to wit: touching of the genital area . . . [of the victim] . . . and
the said [victim] was a child less than (13) thirteen years of age. . .’”
“Count two . . . defendant ‘with force and arms . . . unlawfully, and
feloniously did engage in sexual penetration, to wit, anal intercourse,
of [the victim], a child less than 13 years of age. . .’”
A review of this language convinces us that the indictment met all constitutional
3
requirements as delineated in Hill, 954 S.W.2d at 726-27. Therefore, petitioner’s
claim is without merit.
OTHER ISSUES
On appeal the petitioner raises other issues; to wit: the validity of the
indictment based upon non-Hill issues, improper sentencing and the denial of
exculpatory evidence. These issues were not raised in the trial court and are
waived. See Butler v. State, 789 S.W.2d 898, 902 (Tenn. 1990).
CONCLUSION
Based upon the foregoing, the trial court’s dismissal of petitioner’s motion to
re-open petition for post-conviction relief is AFFIRMED.
____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
PAUL G. SUMMERS, JUDGE
____________________________
L. T. LAFFERTY, SENIOR JUDGE
4