Ashburn v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 03C01-9704-CR-00118
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED AUGUST 1997 SESSION October 1, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk

TIMOTHY ASHBURN, ) C.C.A. No. 03C01-9704-CR-00118 Appellant, ) ) Roane County V. ) ) Honorable E. Eugene Eblen, Judge ) STATE OF TENNESSEE, ) ) (Post-conviction- Aggravated rape, Appellee. ) Aggravated kidnaping)

FOR THE APPELLANT: FOR THE APPELLEE:

L. Jeffrey Hagood John Knox Walkup Attorney at Law Attorney General & Reporter Riverview Tower, Suite 2100 900 S. Gay Street Sandy Copous Patrick Knoxville, TN 37902 Assistant Attorney General Criminal Justice Division Kenneth F. Irvine, Jr. 450 James Robertson Parkway Attorney at Law Nashville, TN 37243-0493 606 W. Main Street, Suite 350 P.O. Box 84 H. Greeley Wells, Jr. Knoxville, TN 37901-0084 District Attorney General

Frank Harvey Asst. Dist. Attorney General P.O. Box 703 Kingston, TN 37763

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS, Judge OPINION

The appellant, Timothy Ashburn, was convicted of three counts of

aggravated rape and two counts of aggravated kidnaping. He received an

effective sentence of seventeen years. On appeal, this Court affirmed the

appellant’s convictions and sentence. Thereafter, the appellant filed a petition

for post-conviction relief alleging that the indictments against him failed to

sufficiently allege the mens rea for aggravated rape. He also alleged that the

Tennessee Department of Correction (TDOC) improperly classified him as a

multiple rapist. After a hearing, the appellant’s petition was denied and

dismissed. He appeals this dismissal. We affirm.

In his first issue the appellant contends that the indictments against him

did not sufficiently allege the mens rea for aggravated rape.1 He argues that his

convictions are void. The appellant bases his contention on State v. Hill, No.

01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, filed June 20, 1996). We

note that several panels of this Court have refused to follow Hill and that it is

currently being reviewed by the Tennessee Supreme Court.2

In Tennessee an indictment must (1) inform the defendant of the precise

charges; (2) enable the trial court to enter an appropriate judgment and sentence

upon conviction; and (3) protect the defendant against double jeopardy. State v.

Trusty, 919 S.W.2d 305, 309 (Tenn. 1996). It must be stated in ordinary and

concise language so that a person of common understanding will know what is

intended. Warden v. State, 381 S.W.2d 244 (1964).

1 Two of the appellant’s indictments for aggravated rape allege that he did “unlawfully and forcibly,” while armed with a pistol, sexually penetrate the victim. The third indictment alleges that the appellant “unlawfully, forcibly, or coercively” while armed with a pistol force the victim to sexually penetrate him. 2 For example, State v. Wilson, No. 03C01-9511-CC-00355 (Tenn. Crim. App. at Knoxville, filed Mar. 25, 1997); State v. Burrell, No. 03C01-9404-CR-00157 (Tenn. Crim. App. at Knoxville, filed Feb. 11, 1997).

-2- We find that the appellant’s indictments sufficiently alleged the elements

of aggravated rape. He was fully apprised of the charges against him in ordinary

and concise language. This Court has previously considered almost identical

indictment language in State v. Burrell, No. 03C01-9404-CR-00157 (Tenn. Crim.

App. at Knoxville, filed Feb. 11, 1997). In Burrell, we held that the terms “force

and coercion” necessarily imply the mens rea of intent. We find that the

indictments against the appellant were constitutionally sufficient. This issue is

without merit.

The appellant next contends that the Tennessee Department of

Correction has independently and unlawfully classified him as a multiple rapist.3

He correctly contends that the trial court classified him as a Standard, Range I

offender, eligible for parole at 30%. He argues that reclassification by the

Department of Correction requires him to serve his entire sentence and is a

violation of his due process rights.

The post-conviction hearing judge ruled that he had no authority to

change a classification by the Department of Correction. We agree with this

determination.

The Tennessee Department of Correction is an agency of the state

government subject to the provisions of the Administrative Procedures Act.

Tenn. Code Ann. § 4-5-101 et seq. (1991). Actions controlled by this Act are

subject to specific procedural safeguards that limit judicial review of such actions.

The Department of Correction is not exempt from the provisions of this Act,

except for situations involving prisoner disciplinary or job termination

proceedings. Tenn. Code Ann. § 4-5-106(a) & (b) (1991). If the appellant

3 Tenn. Code Ann. § 39-13-523 (b) (1991) provides: “Notwithstanding any other provision of law to the contrary, a multiple rapist or a child rapist, as defined in subsection (a), shall be required to serve the entire sentence imposed by the court undiminished by any sentence reduction credits such person may be eligible for or earn.” A “multiple rapist” is defined as “a person convicted two (2) or more times of violating the provisions of § 39-13-502 or § 39-13-503, or a person convicted at least one (1) time of violating § 39-13-502, and at least one time of § 39-13-503. Tenn. Code Ann. § 39- 13-523(a)(2) (1991).

-3- chooses to challenge his reclassification, the appropriate forum is the Chancery

Court of Davidson County. Tenn. Code Ann. § 4-5-224(a) (1991). Appellate

review lies with the Tennessee Court of Appeals. Tenn. Code Ann. § 4-5-323(a)

(1991). Therefore, this Court lacks subject matter jurisdiction to consider the

appellant’s contention.4

Accordingly, we find no error of law mandating reversal. The judgment of

the post-conviction hearing court is affirmed.

__________________________ PAUL G. SUMMERS, Judge

4 Notwithstanding our jurisdictional problem, we point out that under the statute a multiple rapist serves his entire sentence undiminished. We see no due process violation in the reclassification by T DOC. Defendants must remember that parole is a privilege, not a right.

-4- CONCUR:

__________________________ GARY R. WADE, Judge

__________________________ WILLIAM M. BARKER, Judge

-5-