IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JANUARY, 1998 SESSION March 23, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk RANDALL KEITH ATTAWAY, ) No. 03C01-9703-CR-00100 ) Appellant. ) ) Morgan County vs. ) ) Honorable E. Eugene Eblen, Judge STATE OF TENNESSEE, ) ) (Habeas Corpus) Appellee, )
FOR THE APPELLANT: FOR THE APPELLEE:
RANDALL KEITH ATTAWAY, JOHN KNOX WALKUP PRO SE Attorney General & Reporter M.C.R.C.F. P.O. Box 2000 Wartburg, TN 37887-2000 TIMOTHY F. BEHAN Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493
CHARLES HAWK District Attorney General
FRANK HARVEY Assistant District Attorney General P.O. Box 703 Kingston, TN 37763
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE OPINION
Randall Keith Attaway, the petitioner, appeals pursuant to Rule 3,
Tennessee Rules of Appellate Procedure, from the trial court’s dismissal of his
petition for writ of habeas corpus. In May, 1994, the petitioner pled guilty to theft of
property worth more than $10,000 but less than $60,000, felony jail escape, and
several counts of possession with the intent to sell various controlled substances.
He received Range III sentences of fifteen years on the theft charge, six years for
escape, fifteen years for one possession count and eight years for each of the
others.1 In his petition, Attaway challenges only his conviction for felony escape.
Although the petitioner contends that the trial judge erred by dismissing his petition
without appointing counsel or holding an evidentiary hearing, his major contention
is that his conviction for felony escape is void because the indictment failed to the
allege the mens rea for that offense.
The indictment at issue, however, is not contained in the record on
appeal. It is the appellant’s obligation to prepare an adequate record in order to
allow meaningful review on appeal; an appellate court cannot consider an issue
which is not preserved in the record for review. State v. Banes, 874 S.W.2d 73, 82
(Tenn. Ct. App. 1993). When the record is incomplete and does not contain the
documents relevant to an issue, this court may not consider the matter. State v.
Bennett, 798 S.W.2d 783, 789 (Tenn. Crim. App. 1990). We are unable to review
the sufficiency of an indictment unless we have a copy of that document.
Moreover, habeas corpus relief is available in this state only when it
appears on the face of the judgment or the record that the trial court was without
jurisdiction to convict or sentence the defendant or that the sentence of
1 The petition does not clearly state which sentences are concurrent and which, if any, are consecutive. As the record does not include the judgment forms, we cannot calculate the length of his effective sentence.
2 imprisonment has otherwise expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In this instance, petitioner
does not contend that his sentence has expired, nor has he established that the trial
court lacked jurisdiction to enter judgment on the felony escape charge. If the
proscriptive statute does not indicate that the accused’s culpable mental state is a
material element of the offense of felony escape,“the appellant’s challenge is not
jurisdictional in nature.” Robert Duane Bitner v. Billy Compton, No. 02C01-9610-
CC-00336, slip op. at 4 (Tenn. Crim. App., Jackson, Nov. 4, 1997), pet. for perm.
app. filed (Tenn. Jan. 8, 1998); see Jackie Slagel v. State, No. 03C01-9704-CR-
001435 (Tenn. Crim. App., Knoxville, June 10, 1997), perm. app. denied (Tenn.
1997); State v. Robert Read, Jr., No. 01C01-9603 -CR-00106 (Tenn. Crim. App.,
Nashville, Apr. 3, 1997), pet. for perm. app. filed (Tenn. May 30, 1997); State v.
John James, No. 01C01-9601-CR-00016 (Tenn. Crim. App., Nashville, Mar. 27,
1997); State v. John Haws Burrell, No. 03C01-9404-CR-00157 (Tenn. Crim. App.,
Knoxville, Feb. 11, 1997), perm. app. denied (Tenn. 1997) (concurring in results
only).
The statute does not indicate that the mens rea is a material element
of the offense of felony escape. See Tenn. Code Ann. §§ 39-16-605(a) (1997). 2
Therefore, because the defect of which the petitioner complains does not divest the
trial court of jurisdiction or render the subsequent proceedings void, habeas corpus
relief is not available. James Clyde Saylor v. Carlton, No. 03C01-9612-CR-00453,
slip op. at 3 (Tenn. Crim. App., Knoxville, Oct. 31, 1997).
Even if this issue were properly before this court, the petition would
2 Section 605(a) provides that “[i]t is unlawful for any person arrested for, charged with, or convicted of an offense to escape from a penal institution. Tenn. Code Ann. § 39-16-605(a)(1997). Elsewhere “escape” is defined as the “unauthorized departure from custody or failure to return to custody following temporary leave for a specific purpose or limited period but does not include a violation of conditions of probation or parole. . . .” Tenn. Code Ann. § 39-16- 601(3).
3 fail on the substantive grounds as well.3 In his petition, Attaway quotes from the
indictment as follows: “Randall Keith Attaway . . . did unlawfully, escape from the
Cocke County Jail.”4 Assuming that the indictment is worded as the petitioner
claims, we conclude that it is sufficient in all respects. See State v. Hill, 954
S.W.2d 725 (Tenn. 1997). In Hill, the supreme court held that, in those instances
in which the statutory definition of a crime does not plainly dispense with a mental
element and the charging instrument does not allege a culpable mental state, the
indictment is nevertheless sufficient to support prosecution if
(1) the language of the indictment is sufficient to meet the constitutional requirements of notice to the accused of the charge against which the accused must defend, adequate basis for entry of a proper judgment, and protection from double jeopardy;
(2) the form of the indictment meets the requirements of Tenn. Code Ann. § 40-13-202; and
(3) the mental state can be logically inferred from the conduct alleged.
State v. Hill, 954 S.W.2d at 726-27. The language of the indictment follows the
language of the statute and states the facts in ordinary and concise language. See
Tenn. Code Ann. § 40-13-202 (1997); Hill, 954 S.W.2d at 727. A person of
common understanding can understand the offense with which the petitioner is
charged; a court, on conviction, would be able to pronounce a proper judgment that
would protect the defendant from further prosecution for the crime. Id.
Moreover, the mental state may be logically inferred from the conduct
alleged.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JANUARY, 1998 SESSION March 23, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk RANDALL KEITH ATTAWAY, ) No. 03C01-9703-CR-00100 ) Appellant. ) ) Morgan County vs. ) ) Honorable E. Eugene Eblen, Judge STATE OF TENNESSEE, ) ) (Habeas Corpus) Appellee, )
FOR THE APPELLANT: FOR THE APPELLEE:
RANDALL KEITH ATTAWAY, JOHN KNOX WALKUP PRO SE Attorney General & Reporter M.C.R.C.F. P.O. Box 2000 Wartburg, TN 37887-2000 TIMOTHY F. BEHAN Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493
CHARLES HAWK District Attorney General
FRANK HARVEY Assistant District Attorney General P.O. Box 703 Kingston, TN 37763
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE OPINION
Randall Keith Attaway, the petitioner, appeals pursuant to Rule 3,
Tennessee Rules of Appellate Procedure, from the trial court’s dismissal of his
petition for writ of habeas corpus. In May, 1994, the petitioner pled guilty to theft of
property worth more than $10,000 but less than $60,000, felony jail escape, and
several counts of possession with the intent to sell various controlled substances.
He received Range III sentences of fifteen years on the theft charge, six years for
escape, fifteen years for one possession count and eight years for each of the
others.1 In his petition, Attaway challenges only his conviction for felony escape.
Although the petitioner contends that the trial judge erred by dismissing his petition
without appointing counsel or holding an evidentiary hearing, his major contention
is that his conviction for felony escape is void because the indictment failed to the
allege the mens rea for that offense.
The indictment at issue, however, is not contained in the record on
appeal. It is the appellant’s obligation to prepare an adequate record in order to
allow meaningful review on appeal; an appellate court cannot consider an issue
which is not preserved in the record for review. State v. Banes, 874 S.W.2d 73, 82
(Tenn. Ct. App. 1993). When the record is incomplete and does not contain the
documents relevant to an issue, this court may not consider the matter. State v.
Bennett, 798 S.W.2d 783, 789 (Tenn. Crim. App. 1990). We are unable to review
the sufficiency of an indictment unless we have a copy of that document.
Moreover, habeas corpus relief is available in this state only when it
appears on the face of the judgment or the record that the trial court was without
jurisdiction to convict or sentence the defendant or that the sentence of
1 The petition does not clearly state which sentences are concurrent and which, if any, are consecutive. As the record does not include the judgment forms, we cannot calculate the length of his effective sentence.
2 imprisonment has otherwise expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In this instance, petitioner
does not contend that his sentence has expired, nor has he established that the trial
court lacked jurisdiction to enter judgment on the felony escape charge. If the
proscriptive statute does not indicate that the accused’s culpable mental state is a
material element of the offense of felony escape,“the appellant’s challenge is not
jurisdictional in nature.” Robert Duane Bitner v. Billy Compton, No. 02C01-9610-
CC-00336, slip op. at 4 (Tenn. Crim. App., Jackson, Nov. 4, 1997), pet. for perm.
app. filed (Tenn. Jan. 8, 1998); see Jackie Slagel v. State, No. 03C01-9704-CR-
001435 (Tenn. Crim. App., Knoxville, June 10, 1997), perm. app. denied (Tenn.
1997); State v. Robert Read, Jr., No. 01C01-9603 -CR-00106 (Tenn. Crim. App.,
Nashville, Apr. 3, 1997), pet. for perm. app. filed (Tenn. May 30, 1997); State v.
John James, No. 01C01-9601-CR-00016 (Tenn. Crim. App., Nashville, Mar. 27,
1997); State v. John Haws Burrell, No. 03C01-9404-CR-00157 (Tenn. Crim. App.,
Knoxville, Feb. 11, 1997), perm. app. denied (Tenn. 1997) (concurring in results
only).
The statute does not indicate that the mens rea is a material element
of the offense of felony escape. See Tenn. Code Ann. §§ 39-16-605(a) (1997). 2
Therefore, because the defect of which the petitioner complains does not divest the
trial court of jurisdiction or render the subsequent proceedings void, habeas corpus
relief is not available. James Clyde Saylor v. Carlton, No. 03C01-9612-CR-00453,
slip op. at 3 (Tenn. Crim. App., Knoxville, Oct. 31, 1997).
Even if this issue were properly before this court, the petition would
2 Section 605(a) provides that “[i]t is unlawful for any person arrested for, charged with, or convicted of an offense to escape from a penal institution. Tenn. Code Ann. § 39-16-605(a)(1997). Elsewhere “escape” is defined as the “unauthorized departure from custody or failure to return to custody following temporary leave for a specific purpose or limited period but does not include a violation of conditions of probation or parole. . . .” Tenn. Code Ann. § 39-16- 601(3).
3 fail on the substantive grounds as well.3 In his petition, Attaway quotes from the
indictment as follows: “Randall Keith Attaway . . . did unlawfully, escape from the
Cocke County Jail.”4 Assuming that the indictment is worded as the petitioner
claims, we conclude that it is sufficient in all respects. See State v. Hill, 954
S.W.2d 725 (Tenn. 1997). In Hill, the supreme court held that, in those instances
in which the statutory definition of a crime does not plainly dispense with a mental
element and the charging instrument does not allege a culpable mental state, the
indictment is nevertheless sufficient to support prosecution if
(1) the language of the indictment is sufficient to meet the constitutional requirements of notice to the accused of the charge against which the accused must defend, adequate basis for entry of a proper judgment, and protection from double jeopardy;
(2) the form of the indictment meets the requirements of Tenn. Code Ann. § 40-13-202; and
(3) the mental state can be logically inferred from the conduct alleged.
State v. Hill, 954 S.W.2d at 726-27. The language of the indictment follows the
language of the statute and states the facts in ordinary and concise language. See
Tenn. Code Ann. § 40-13-202 (1997); Hill, 954 S.W.2d at 727. A person of
common understanding can understand the offense with which the petitioner is
charged; a court, on conviction, would be able to pronounce a proper judgment that
would protect the defendant from further prosecution for the crime. Id.
Moreover, the mental state may be logically inferred from the conduct
alleged. See Hill, 954 S.W.2d at 729; see also State v. Marshall, 870 S.W.2d 532,
537-39 (Tenn. Crim. App. 1993). The statute which creates the offense of felony
escape does not indicate that the accused’s culpable mental state is a material
3 The petitioner’s claims are likewise inapposite for a post-conviction petition. 4 This court may not consider statements of fact made in pleadings, briefs or oral arguments unless they are supported by a transcript or other evidence. State v. Bennett, 798 S.W.2d at 789.
4 element of the offense nor does it clearly dispense with the requirement. Tenn.
Code Ann. § 39-16-605(a) (1997). Thus, pursuant to Tennessee Code Annotated
section 39-11-301(c), the mental element is satisfied if the indictment alleges that
the defendant committed the proscribed act with intent, knowledge, or recklessness.
As defined by statute, “escape” is the unauthorized and unlawful departure from
custody. Tenn. Code Ann. §§ 39-16-601(3) and - 605(a)(1997). The dictionary
defines “escape” as “to break loose from confinement; get free.” American Heritage
Dictionary of the English Language 625 (3rd Ed. 1996). Any unauthorized and
unlawful breaking free from confinement in a county jail would necessarily be
committed either intentionally, knowingly, or recklessly. The language that the
petitioner alleges was contained in the indictment provided adequate notice to both
the petitioner and the trial court and protects the defendant from subsequent re-
prosecution for this same offense.
Finally, we find no error in the trial court’s summary dismissal of the
non-meritorious petition without appointment of counsel and a hearing. The Habeas
Corpus Act requires the court to review the petition and dismiss it and to refuse to
issue the writ unless it indicates the petitioner’s conviction may be void. See Tenn.
Code Ann. §§ 29-21-101, -109 (1980). If the writ is refused based on the failure of
the petition to raise a cognizable claim for relief, any need for a hearing is obviously
pretermitted because there is no justiciable issue before the court. See State ex rel.
Byrd v. Bomar, 214 Tenn. 476, 381 S.W.2d 280 (1963). See generally Tenn. Code
Ann. §§ 29-21-101 to -130 (1980 and Supp. 1996). Thus, the trial court did not err
simply because it did not allow a hearing, appointment of counsel and an
opportunity for amendment of the petition.
Having found no error in the proceedings below, we affirm the trial
5 court’s dismissal of Attaway’s habeas corpus petition.
__________________________ CURWOOD W ITT, Judge
CONCUR:
______________________________ GARY R. WADE, Judge
______________________________ JOSEPH M. TIPTON, Judge