IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1997 SESSION
April 17, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
LESLEY BUFORD, * C.C.A. # 03C01-9603-CR-00096
*
Appellant, * HAMILTON COUNTY
VS. *
* Hon. Stephen M. Bevil, Judge
STATE OF TENNESSEE, *
* (Post-Conviction)
Appellee. *
*
For Appellant: For Appellee:
Lesley Buford, Pro Se Charles W. Burson
South Central Correction Facility Attorney General & Reporter
P.O. Box 279
Clifton, TN 38425-0279 Robin L. Harris
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
OPINION FILED:
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The petitioner, Lesley Buford, appeals the trial court's dismissal of his
petition for post-conviction relief. The single issue presented for our review is
whether the trial court erred by dismissing the petition without any answer having
been filed by the state, without the appointment of counsel, or without an evidentiary
hearing.
Because the issues raised in the petition can be conclusively
determined in favor of the state, we affirm the judgment of the trial court.
On April 8, 1994, the petitioner pled guilty to one count of disorderly
conduct, a misdemeanor, and four counts of driving while a habitual motor offender
order was in effect, Class E felonies as defined in Tenn. Code Ann. § 55-10-616.
The trial court imposed a sentence of eleven months twenty-nine days for the
disorderly conduct offense to be served concurrently with consecutive sentences of
three years, two years, and two years for the first three habitual motor offender
violations. A two-year sentence for the fourth violation is to be served concurrently.
We calculate the effective sentence as seven years in the Tennessee Department
of Correction. There was no direct appeal.
On December 28, 1995, the petitioner filed this, his first petition for
post-conviction relief, alleging (1) that his guilty pleas had not been knowingly made
because a seven-year rather than a six-year sentence had been imposed; (2) that
his defense counsel was ineffective; and (3) that his conviction violated double
jeopardy principles. The petitioner requested the appointment of counsel. The state
filed no response.
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Utilizing the Post-Conviction Procedure Act effective May 10, 1995, the
trial court summarily dismissed the petition on the following grounds:
(1) the court found that the petition presented no basis
for relief;
(2) the transcript of the plea hearing showed that the
court informed the petitioner he would receive a seven-
year sentence and this sentence was in accordance with
the plea agreement;
(3) by pleading guilty, the defendant waived his right to
attack defects in his cases including his claims that the
two felony driving offenses committed on the same day
constituted only one offense and that he faced double
jeopardy when tried on an indictment that the city court
had already dismissed.
The post-conviction legislation of 1995 allows for a preliminary
dismissal when, among other things, the petition does not include a possible ground
for relief:
Upon receipt of a petition in proper form, or upon receipt
of an amended petition, the court shall examine the
allegations of fact in the petition. If facts alleged, taken
as true, fail to show that the petitioner is entitled to relief
... the petition shall be dismissed.
Tenn. Code Ann. § 40-30-206(f) (1996 Supp.) (emphasis added).
Case law before the 1995 Act provides some guidance. To make a
claim "colorable" or actionable, the pro se petitioner must assert a basic theory of
relief. Lowe v. State, 805 S.W.2d 368, 372 (Tenn. 1991). This court has defined a
"colorable" claim, under the statutory law in existence before the 1995 Act, as "one
that alleges facts showing that the conviction resulted from an abridgment of a
constitutional right and which demonstrates that the ground for relief was not
previously determined or waived." Hugh Ronald Carmley v. State, No. 03C01-9305-
CR-00167, slip op. at 6 (Tenn. Crim. App., at Knoxville, Jan. 13, 1994). Much like
the new statute, "the test [was] whether it appears beyond doubt that the [petitioner]
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can prove no set of facts in support of his claim which would entitle him to relief."
Swanson v. State, 749 S.W.2d 731, 734 (Tenn. 1988) (second alteration in original)
(quoting Baxter v. Rose, 523 S.W.2d 930, 939 (Tenn. 1975)). See also Tenn. Sup.
Ct. R. 28, § 2(H). "[A] petition stating a colorable claim for relief ... is to be
considered on its merits." Swanson, 749 S.W.2d at 734.
The new statute requires the trial courts, at the preliminary stages, to
first "determine whether the petitioner is indigent and in need of counsel." Tenn.
Code Ann. § 40-30-206(e). The trial court "may provide counsel and allow time for
an amendment to the petition." Id. Before there can be a preliminary dismissal,
however, the statute requires the trial court to assume "as true" the facts alleged by
the petitioner. Here, the petitioner, despite the contents of the transcript of his guilty
pleas, first insisted that his seven-year sentence was contrary to the sentence
promised in the plea agreement. He asserted that, because of a one year increase
in sentence length during a bench conference to which he was not privy, his pleas
were neither knowingly nor voluntarily entered; he contended that but for the
deficient representation of his counsel, he would not have conceded his guilt to the
charges that he had violated the habitual offender order and would have insisted on
a trial.
Here, it is clear from the transcript of the sentencing hearing that the
trial court carefully explained his sentence length to the petitioner. When asked if he
understood, the petitioner responded, "Seven years, total of seven years." The trial
judge again inquired, "Total of seven years. Three plus two, plus two?" The
petitioner agreed to the sentence on the record. It can be conclusively determined
from the record that the petitioner acknowledged his acceptance of a seven-year
sentence. Because the complaint about the length of the sentence is the only basis
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for the allegation that the plea was not voluntary, this court must conclude that the
trial court correctly found that the plea was knowingly made.
Next, the petitioner claims that his trial counsel was ineffective for
allowing him to plead guilty to two counts of habitual vehicle motor offender
violation, because the offenses were committed on the same day and thus
"constitute[d] one offense under Tennessee law." The petitioner goes on to claim
that these two offenses were used to qualify him as a habitual vehicle motor
offender. The record, however, establishes that the petitioner is not entitled to relief.
While driving offenses committed on the same day are considered as a single
offense when computing the number of convictions required to qualify as a habitual
motor offender, Tenn. Code Ann. § 55-10-604, the same is not true for violations of
an existing order. The record shows that the two violations at issue were for the
abridgements of an order already in place, not the underlying offenses used to
declare the petitioner a habitual offender. The petitioner has incorrectly interpreted
the law; thus his counsel could not have been ineffective on this basis.
Lastly, the petitioner claims that his counsel was ineffective by failing
to protect the petitioner's right against double jeopardy. The petitioner claims that
one of the habitual motor offender violations had been dismissed in the
Chattanooga City Court before being revived with the three others in the Criminal
Court of Hamilton County.
In State v. Knight, 616 S.W.2d 593 (Tenn. 1981), our supreme court
made the following comment about double jeopardy:
The essence of the prohibition against double
jeopardy is ... that[, in the second trial, the defendant]
would risk conviction for an offense for which he has
already been placed on trial and in jeopardy.
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Id. at 595 (citations omitted). In Abney v. United States, 431 U.S. 651 (1977), the
United States Supreme Court explained the reason for the protection:
[T]he State with all its resources and power should not be
allowed to make repeated attempts to convict an
individual for an alleged offense, thereby subjecting him
to embarrassment, expense and ordeal, and compelling
him to live in a continuing state of anxiety and insecurity,
as well as enhancing the possibility that even though
innocent he may be found guilty.
Id. at 661-62. Once a criminal prosecution reaches the point where jeopardy
attaches, the defendant may not be retried on the same offense; however, this point
varies depending on what legal action is taken. Jeopardy does not attach at an
arraignment or preliminary hearing. State v. Todd, 654 S.W.2d 379, 381 (Tenn.
1983); State v. Lee, 693 S.W.2d 361, 363 (Tenn. Crim. App. 1985). In a bench trial,
jeopardy attaches when a defendant has been properly indicted; he has properly
waived his right to a jury trial; the case is before a court with jurisdiction over the
matter; the judge is qualified and present; the defendant has entered his plea; and
the witness (one or all) has been sworn. State v. Daniels, 531 S.W.2d 795, 801-02
(Tenn. Crim. App. 1975). Testimony by a witness is not necessary. Id. at 802. In a
jury trial, jeopardy attaches at a similar point: when the defendant is before a court
with jurisdiction; there is a proper indictment; and the jury has been impaneled and
sworn. Id. at 797. Once again, it is not necessary that there be any testimony. Id.
There are three notable exceptions to the prohibition against double
jeopardy:
(1) When the defendant actively seeks or consents to
the premature termination of the proceedings (provided
that he has not been caused to do so by the
overreaching of the prosecution or judge);
(2) When the proceedings were caused to terminate
through the misconduct of defense counsel and there
was no feasible alternative to halting the proceedings;
and
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(3) Where there is a manifest necessity for the dismissal
else "the ends of public justice would otherwise be
defeated."
State v. Michael Wayne Downs and Stephen Anthony Downs, No. 88-275-III, slip
op. at 7 (Tenn. Crim. App., at Nashville, Nov. 7 1989), app. granted and aff'd on
unrelated issue, State v. Bryant, 805 S.W.2d 762 (Tenn. 1991) (citations omitted).
Here, however, the petitioner was never in jeopardy. The city court
must have had jurisdiction over the criminal prosecution of "felonious operation of a
motor vehicle" in order for the petitioner to show that jeopardy had attached. "[A]
municipal or corporation court has no jurisdiction to hear cases based upon violation
of State statutes unless the Legislature has expressly conferered such jurisdiction
upon such court." Hill v. State ex rel. Phillips, 392 S.W.2d 950, 952 (Tenn. 1965).
Tennessee Code Annotated section 6-21-501 defines the jurisdiction of municipal
courts. While these courts have been granted jurisdiction over most misdemeanor
crimes1, they do not have authority to hear felony cases. The petitioner contends
his charge in city court was a felony; in our view, the Chattanooga City court did not
have jurisdiction to adjudicate the case. Thus, defense counsel could not have
been ineffective by failing to raise the issue of double jeopardy.
Accordingly, the judgment of the trial court is affirmed.
__________________________________
Gary R. Wade, Judge
CONCUR:
1
Tenn . Code A nn. § 6-2 1-501 g rants city co urts "con curren t jurisdiction a nd autho rity with
courts of general sessions" in the same county. Tenn. Code Ann. §§ 16-15-401, -501, 40-1-109
defines the jurisdiction of general sessions courts which includes the authority to try misdemeanor
cases.
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_______________________________
William M. Barker, Judge
________________________________
Curwood Witt, Judge
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