Ashburn v. State ( 2010 )

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).
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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).
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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.
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CONCUR:
__________________________
GARY R. WADE, Judge
__________________________
WILLIAM M. BARKER, Judge
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