Raph Roe v. State (Ricky Bell, Warden) ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY 1998 SESSION
August 25, 1998
Cecil W. Crowson
RALPH ROE, * C.C.A. # 01C01-9708-CR-00354 Clerk
Appellate Court
Appellant, * DAVIDSON COUNTY
VS. * Hon. J. Randall W yatt, Jr., Judge
STATE OF TENNESSEE, * (Habeas Corpus)
Appellee. *
For Appellant: For Appellee:
Ralph Roe, #114901, Pro Se John Knox Walkup
R.M.S.I. Unit 6-B-222 Attorney General and Reporter
7475 Cockrill Bend Road
Nashville, TN 37209-1010 Timothy F. Behan
Assistant Attorney General
425 Fifth Avenue North
Second Floor, Cordell Hull Building
Nashville, TN 37243-0493
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Ralph Roe, appeals the trial court's denial of habeas
corpus relief. In this appeal of right, the petitioner contends that he should have
been appointed counsel, received a hearing, and been granted relief based upon
the invalid arrest warrant.
We affirm the judgment of the trial court.
On or about February 9, 1997, the petitioner, who is serving a twenty-
five-year sentence for a 1988 second degree murder conviction, filed a petition for
writ of habeas corpus seeking his release from prison. In 1991, he was charged
with felony escape. Thereafter, the petitioner apparently entered into a plea bargain
in the General Sessions Court whereby he pled guilty to misdemeanor escape and
received an eleven month, twenty-nine-day sentence at seventy-five percent. He
characterizes his claim as follows:
The Petitioner contends that his sentence is void, due to
he was sentenced to felony charges and serving time on
felony charges when the escape took place, and he
should have been sentenced felony escape rather than a
misdemeanor escape, this is a clear violation of due
process and it damages the Petitioner and it is a void
sentence being it is illegal.
The Petitioner contends that he should have been
sentenced to a felony escape rather than misdemeanor
escape, and that since he was serving sentences for
felony convictions and he was not bound over to the
Grand Jury and was not processed through the judicial
system according to [Rule 5(d) of the Tennessee Rules
of Criminal Procedure], regarding felony charges and
rights of defendants in regards to felony charges
appearing before the magistrate, his charges need to be
dismissed and dropped accordingly.
The Petitioner contends that the court that sentenced
him had no jurisdiction over him in sentencing him to a
misdemeanor escape, since he was serving sentences
for felony convictions and thereby respectfully asks this
Court to dismiss the charge of escape that is being held
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against him.
In the order of dismissal, the trial court determined that, in addition to
the second degree murder conviction, which had a sentence that would not expire
until 2013, the petitioner was serving concurrent sentences on other convictions. It
determined that the eleven month, twenty-nine-day sentence was consecutive, that
the petitioner had been denied parole in 1996, and that the next possible date for
parole was October of 1998. The trial court concluded that the general sessions
court had jurisdiction to accept petitioner's guilty plea to misdemeanor escape.
Tenn. Code Ann. § 40-1-109; Tenn. R. Crim. P. 5(c)(1).
The trial court determined that petitioner had been represented by
counsel on the escape charge, had been apprised that the charge would be a
misdemeanor, signed a waiver of rights to consideration by a grand jury or a trial by
jury by way of presentment or indictment, and pled guilty to that offense.
The trial court found that Attorney Sue Evans, who approved the plea
agreement on the escape charge, had the authority to preside over the case. See
Tenn. Code Ann. § 16-15-209. Now, Judge Evans is a general sessions judge in
Metropolitan Davidson County.
Initially, at the time of the petitioner's second degree murder
conviction, the Post-Conviction Procedure Act provided that a petition for relief,
irrespective of the remedy sought, had to filed "within three years of the final action
of the highest state appellate court to which an appeal is taken." Tenn. Code Ann. §
40-30-102 (1986). In contrast, habeas corpus has no statutory period of limitations;
however, relief may be granted only when a petitioner has established lack of
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jurisdiction for the order of confinement or that he is otherwise entitled to immediate
release because of the expiration of his sentence. See Ussery v. Avery, 432
S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell, 443 S.W.2d 839 (Tenn.
Crim. App. 1969). If a claim is based upon an alleged abridgement of a
constitutional right, the petitioner must use the Post-Conviction Procedure Act.
Luttrell v. State, 644 S.W.2d 408 (Tenn. Crim. App. 1982).
It does not appear on the face of this judgment or the record that the
trial court was without jurisdiction to convict or sentence the defendant for the
second degree murder conviction. There is no indication that the general sessions
court lacked authority to enter the misdemeanor escape conviction. Neither does it
appear that the sentences of imprisonment for the petitioner have expired. Archer v.
State, 851 S.W.2d 157 (Tenn. 1993); Potts v. State, 833 S.W.2d 60 (Tenn. 1992).
When it can be conclusively determined that no relief is available, the
petition may be dismissed summarily without the appointment of counsel. In this
case, the petitioner has failed to state a ground upon which the trial court could have
determined that either of the two judgments were facially invalid. Clearly, the
sentences have not expired.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
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CONCUR:
_____________________________
David G. Hayes, Judge
_____________________________
Jerry L. Smith, Judge
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