John McDonald v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9711-CR-00529
• Status: Published

Opinion

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