(concurring).
I concur in Judge Dwyer’s opinion.
The petitioner says in effect that his court appointed attorney was totally ineffective in his representation because he advised the petitioner to plead guilty to a charge of burglary to escape possible conviction as an habitual criminal when in fact no possibility of such conviction confronted him. No threat existed the petitioner might have received a life sentence as an habitual criminal, it is contended on this appeal, because the habitual criminal indictment was defective on its face; therefore any motivation to plead guilty to escape a nonexistent danger was not a product of free will so as to meet the test of voluntariness that such pleas must in order to be binding.
The fallacy of the position urged on us by the appellant is that there appears to be nothing defective with the indictment in the record charging the petitioner as the defendant therein with being an habitual criminal under the provisions of T.C.A. § 40-2801 et seq. Said indictment avers that the defendant had been convicted of serious specified felonies on four different occasions in the past, two burglaries in Hamilton County in 1963 and 1966, a 1965 burglary in Troup County, Georgia, and a Cutting to Wound charge in Lorain Coun*172ty, Ohio, in 1946, which would be equivalent to a conviction under T.C.A. § 39-610 in this State. The unique position of the appellant is that, since no three of the past felony convictions occurred in either Tennessee or any other State, the requirements of the act could not have been satisfied since it provides:
T.C.A. § “40-2801 . . . Any person who has either been three (3) times convicted within this state of felonies, not less than two (2) of which are among those specified in §§ 39-604, 39-605, 39-609, 39-610, 39-3708 or 40-2712, or were for a crime punishable by death under existing law, but for which the death penalty was not inflicted, or who has been three (3) times convicted under the laws of any other state, government or country of crimes, not less than two (2) of which, if they had been committed in this state, would have been among those specified in said §§ 39-604, 39-605, 39-609, 39-610, 39-3708 or 40-2712, or would have been punishable by death under existing laws, but for which the death penalty was not inflicted, shall be considered, for the purposes of this chapter, and is declared to be an habitual criminal . . . ”
No authority is cited by counsel for petitioner to support his position, which I believe should be emphatically rejected. Surely a person who commits two crimes in Tennessee and two separate crimes in two other States meets the test of incorrigibility as much as would a felon who confined all his activity to one State. In Brown v. State, 186 Tenn. 378, 210 S.W.2d 670, the Supreme Court approved a conviction under the Act on proof that the defendant, convicted for assault with intent to carnally know a child, had previously been convicted in Utah for larceny, Missouri for robbery and a United States District Court in Alabama for violation of the White Slave Act.
It appears to me that the attorney who counseled with the petitioner to avoid prosecution as an habitual criminal in exchange for an honest admission of guilt to the crime of burglary rendered competent service. If we were to hold otherwise and void the plea of guilty and grant a new trial, one wonders what the position of the petitioner would be if he then was tried and convicted not only as a burglar, but on the habitual criminal indictment which, if the averments of past felony convictions are sustainable, could result in a sentence of life imprisonment.