Alfred Terry Peck v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE July 14, 1999
Cecil Crowson, Jr.
MAY 1999 SESSION Appellate C ourt
Clerk
STATE OF TENNESSEE, * C.C.A. # 03C01-9802-CR-00059
Appellee, * HAMILTON COUNTY
VS. * Honorable Douglas A. Meyer, Judge
ALFRED TERRY PECK, * (Post-Conviction/Aggravated Rape)
Appellant. *
FOR THE APPELLANT: FOR THE APPELLEE:
ARDENA J. GARTH PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
DONNA ROBINSON MILLER MARVIN S. BLAIR, JR.
Assistant District Public Defender Assistant Attorney General
Suite 300, 701 Cherry Street 425 Fifth Avenue North
Chattanooga, TN 37402 Nashville, TN 37243-0493
WILLIAM H. COX III
District Attorney General
C. LELAND DAVIS
Assistant District Attorney General
600 Market Street, Suite 310
Chattanooga, TN 37402
OPINION FILED: _______________
AFFIRMED - RULE 20
JOHN EVERETT WILLIAMS,
Judge
OPINION
The petitioner, Alfred Terry Peck, appeals from the trial court’s denying his
motion to reopen a petition for post-conviction relief. In 1983, the petitioner was
convicted by a Hamilton County jury of aggravated rape. He subsequently filed a
petition for post-conviction relief in 1985, which was denied. In his motion, he
alleged that the Court of Criminal Appeals holding in State v. Roger Dale Hill, No.
01C01-9508-CC-00267 (Tenn. Crim. App. filed June 25, 1996, at Nashville),
established a constitutional right not recognized at the time of his trial but
requiring retrospective application to his case.1 On January 9, 1996, the trial
court dismissed the motion to reopen.
After review of the record, we affirm the judgment of the trial court,
pursuant to Tenn. Ct. Crim. App. R. 20.
Initially, we address the appellant’s failure to follow the proper procedure
for appealing the trial court’s order. The controlling statute requires a petitioner
to seek permission to appeal from this Court within ten days of the trial court’s
denial of the motion to reopen. Tenn. Code Ann. § 40-30-217(c). In addition,
the petitioner shall file the order denying the motion and all documents filed by
the parties in the trial court. Id. The petitioner filed his appeal approximately
twenty-eight days after the trial court’s dismissal.
We further note the petitioner’s reliance on the Hill decision throughout
the procedural history of his motion to reopen, up to his appeal to this Court.2
1
Although the petition did not explicitly state that Hill established such a right, the
pertinent statute provides only three possible bases for reopening a petition for post-conviction
relief: the mentioned constitutional right; relevant new scientific existence; and circumstances
involving prio r conviction s enha ncing a c onteste d sente nce. See Tenn. Code Ann. § 40-30-
217(a). B y deduction , only the first bas is is argua bly relevant.
2
The trial court convicted the petitioner in 1983, and the Hill decision addressed an
aggravated rape conviction for a post-1989 offense. In Dykes v. Compton, 978 S.W.2d 528(Tenn. 1998), the Tenn essee Suprem e Court held that their Hill analysis extended to convictions
under th e 1979 statutes.
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The Tennessee Supreme Court overruled this Court’s Hill decision in State v.
Hill, 954 S.W.2d 725 (Tenn. 1997). However, on appeal the petitioner
nevertheless asserts that the indictment lacked proper notice of the offense
alleged.
The petitioner’s reliance on Hill was inappropriate, because that decision
did not establish a new constitutional right. The defendant had the asserted right
to notice at his trial. See Hill, 954 S.W.2d at 727 (citations to the pertinent
federal and state constitutional sections and to case law noting pre-1983
constitutional right to notice). Therefore, the petitioner did not qualify the basis
for his appeal under a recognized statutory ground.
However, the dispositive issue is the petitioner’s omission of the pertinent
indictment in the record submitted to this Court. The Supreme Court’s Hill
holding does not validate all aggravated rape indictments lacking mens rea
allegations but rather states the standard for determining the validity of those
indictments.3 Even if Hill established the requisite new constitutional right, this
Court can not review an indictment omitted from the record. The petitioner
waived his sole articulated ground for appeal by omitting the essential document.
See Tenn. R. App. P. 24; State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App.
1993).
Accordingly, the trial court’s denying the motion to reopen the petition for
post-conviction relief is affirmed, pursuant to Tenn. Ct. Crim. App. R. 20.
_____________________________
3
An indictment must provide sufficient information to place the accused on notice of the
charged offense, must provide the trial court with adequate basis for entry of a judgment, and
mus t protect the accus ed from double je opardy. Hill, 954 S.W.2d at 727-28.
-3-
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
_________________________________
JAMES CURW OOD W ITT, JR., Judge
______________________________
ALAN E. GLENN, Judge
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