State v. Felts

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 26, 1998
• Docket: 03C01-9708-CR-00333
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JANUARY 1998 SESSION March 26, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

DAVID W. FELTS, ) ) Appellant, ) C.C.A. No. 03C01-9708-CR-00333 ) v. ) Morgan County ) CHARLES JONES, Warden, ) and STATE OF TENNESSEE, ) Hon. E. Eugene Eblen, Judge ) Appellee. ) (Habeas Corpus)

FOR THE APPELLANT: FOR THE APPELLEE:

DAVID W. FELTS JOHN KNOX WALKUP Pro Se Attorney General & Reporter M.C.R.C.F. P.O. Box 2000 TIMOTHY F. BEHAN Wartburg, TN 37887-2000 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

CHARLES E. HAWK Dist. Attorney General

FRANK HARVEY Asst. Dist. Attorney General P.O. Box 703 Kingston, TN 37763

OPINION FILED: _____________

AFFIRMED

CURWOOD WITT, JUDGE OPINION

The petitioner, David W. Felts, appeals the Morgan County Criminal

Court's summary denial of his petition for the writ of habeas corpus. According to

his petition, Felts is presently serving a 23-year incarcerative sentence following his

guilty pleas to the crimes of aggravated sexual battery and rape of a child. He

alleges he is entitled to issuance of the writ of habeas corpus because the

indictments against him fail to allege a culpable mens rea. He also claims the lower

court should have appointed counsel and conducted a hearing prior to ruling on his

petition. We affirm the judgment of the court below.

The petitioner has failed to include the relevant indictments in the

record on appeal. As the appellant, he has the duty to ensure that the record on

appeal contains all of the evidence relevant to those issues which are the bases of

appeal. Tenn. R. App. P. 24(b); State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim.

App. 1993); State v. Deborah Gladish, No. 02C01-9404-CC-00070 (Tenn. Crim.

App., Jackson, November 21, 1995), perm. app. denied (Tenn. 1996). In the

absence of such a record, the affected issues are waived. State v. Oody, 823

S.W.2d 554, 559 (Tenn. Crim. App. 1991). “In the absence of an adequate record

on appeal, this court must presume that the trial court’s rulings were supported by

sufficient evidence.” Oody, 823 S.W.2d at 559.

Also, we have no basis for determining that the trial court erred in

dismissing the petition without appointment of counsel and a hearing. The Habeas

Corpus Act requires the court to review the petition and dismiss it and 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). Moreover, there is no

requirement in the Habeas Corpus Act that a petitioner be afforded appointed

2 counsel or the opportunity to amend the petition. 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.

In sum, we find no error in the proceedings below. The trial court's

dismissal of Felts's habeas corpus petition is affirmed.

____________________________ CURWOOD WITT, JUDGE

CONCUR:

______________________________ JOSEPH M. TIPTON, JUDGE

_______________________________ WILLIAM M. BARKER, JUDGE