The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
AUGUST 1997 SESSION
September 10, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STEVEN D. BASS, )
) C.C.A. No. 03C01-9612-CR-00466
Appellant, )
) Johnson County
V. )
) Honorable Lynn W. Brown, Judge
)
STATE OF TENNESSEE, ) (Habeas Corpus)
)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Steven D. Bass, Pro Se Charles W. Burson
214227 NECC Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683-5000 Peter M. Coughlan
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
David E. Crockett
District Attorney General
Route 19, Box 99
Johnson City, TN 37601
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Steven D. Bass, pled guilty to three counts of aggravated
robbery and one count of aggravated rape. He received an effective sentence of
fifteen years incarceration. Thereafter, he filed a petition for habeas corpus
relief alleging that the indictment against him was fatally insufficient. The trial
court denied the appellant's petition. He appeals the trial court's decision by
asserting that State v. Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. at
Nashville, June 20, 1996), supports the proposition that the judgment entered
against him is void because the indictment failed to allege the requisite mens rea
for aggravated rape.
First, we note that several panels of this Court have declined to follow the
holding in Hill.1 Our Supreme Court has granted permission to appeal and is
currently reviewing that decision. It, therefore, does not have precedential value
with this Court.
It is well established that challenges to the sufficiency of an indictment
cannot be tested in a habeas corpus proceeding. Underwood v. Bomar, 335
F.2d 783, 788 (6th Cir. 1964); Brown v. State, 445 S.W.2d 669, 674 (Tenn. Crim.
App. 1969); Haggard v. State, 475 S.W.2d 186, 187 (Tenn. Crim. App. 1971). It
is, however, equally well established that an exception to the general proposition
can be made if the indictment is so fatally defective that the convicting court
lacked jurisdiction to render judgment. Myers v. State, 462 S.W.2d 265, 267
(Tenn. Crim. App. 1970).
In the instant case the appellant contends that his indictment failed to
allege the requisite mens rea for aggravated rape and is, therefore, fatally
1
Although we will not reach the substantive issue, this panel is also not inclined to follow Hill.
-2-
defective. We find that the alleged defect, even under the appellant’s
interpretation, would not have deprived the trial court of jurisdiction. Therefore,
this issue is not proper for habeas corpus review.
Accordingly, we find no error of law mandating reversal. The trial court's
dismissal of the appellant's petition is affirmed in accordance with Tenn. R. Ct.
Crim. App., Rule 20.
__________________________
PAUL G. SUMMERS, Judge
-3-
CONCUR:
(SEE SEPARATE CONCURRING OPINION)
GARY R. WADE, Judge
__________________________
WILLIAM M. BARKER, Judge
-4-
IN THE COURT OF CR IMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
AUGUST 1997 SESSION FILED
September 10, 1997
STEVEN D. BASS, ) Cecil Crowson, Jr.
) C.C.A. No. 03C01-9612-CR-00466
Appellate C ourt Clerk
Appellant, )
) Johnson County
V. )
) Honorable Lynn W . Brown, Judge
)
STATE OF TENNESSEE, ) (Habeas Corpus)
)
Appellee. )
CONCURRING OPINION
I concur in the affirm ance. Yet footnote one of the majority opinion provides that "this panel is
not inclined to follow Hill." In my view, it is not necessary to m ake such a broad statement in order to
resolve the legal issue presented. The indictment is sufficient to give notice of the offense; it alleges
the defendant "did unlawfully and coercively, while armed with a weapon ... sexually penetrate" the
victim. In State v. John Haws Burrell, No. 03C01-9404-CR-00157, slip op. at 33 (Tenn. Crim. App., at
Knoxville, Feb. 11, 1997), perm. to appeal filed, Apr. 10, 1997, a panel of this court ruled that an
indictment that alleged the defendant "did then and there unlawfully engage in unlawful sexual
penetration ... by the use of coercion" was sufficient. The rationale was that the term coercion implied
an intentional or knowing act. In view of that ruling, I would hold that the conviction was not void.
Moreover, even if the indictment for rape were so defective as to deprive the court of
jurisdiction on the rape conviction, this habeas corpus petitioner remains lawfully confined on the
robbery convictions. The latter sentences do not expire for several more years. Thus, the petitioner
would not be entitled to immediate release.
_____________________________________
Gary R. Wade, Judge
-5-