State v. Ralph Cooper ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1998 SESSION
FILED
July 17, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9709-CR-00339
Appellee, )
) Shelby County
V. )
) Honorable W . Fred Axley, Judge
)
RALPH D. COOPER, ) (Habitual Motor Vehicle Offender)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Robert M. Brannon, Jr. John Knox Walkup
Attorney at Law Attorney General & Reporter
295 Washington Avenue
Suite 3 Douglas D. Himes
Memphis, TN 38103-1911 Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
Rosemary Andrews
Assistant District Attorney General
201 Poplar Avenue, Third Floor
Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
Alleging that the appellant, Ralph D. Cooper, had been convicted of three
qualifying vehicular offenses during a five-year period, the state, pursuant to
Tennessee Code Annotated § 55-10-601, filed a petition on April 16, 1997
seeking to declare the appellant a habitual motor vehicle offender. On August
26, 1997, a hearing on the petition was held. At the conclusion of the hearing,
the trial court, finding no material disputes of fact, granted the state’s petition
declaring the appellant a habitual motor vehicle offender.
The appellant presents four issues for our review on appeal: (1) whether
the trial court erred in failing to afford him a trial by jury; (2) whether the trial court
erred by failing to grant a continuance based upon his filing of a post-conviction
petition attacking one of the state’s qualifying offenses in its petition to declare
him a habitual motor vehicle offender; (3) whether the trial court erred in failing to
exclude records of the July 2, 1991 conviction which were offered by the state in
support of its petition; and (4) whether the trial court erred in its declaration of
him as a habitual motor vehicle offender, thereby violating the double jeopardy
clause of the United States and Tennessee Constitutions. We affirm.
In his first issue, the appellant argues that the trial court improperly denied
his request for a jury trial. He contends that there are two material disputes of
fact which necessitate a jury trial: whether his filing of a post-conviction petition
created a material dispute of fact and whether the Ralph D. Cooper that the state
was attempting to declare a habitual motor vehicle offender was in fact him.
The state asserts that the trial court properly denied the appellant’s
request for a trial. Citing State v. Everhart, 563 S.W.2d 795, 797-98 (Tenn.
Crim. App. 1978), the state maintains that “collateral attacks on the underlying
convictions are not proper at a habitual offender hearing.” It insists that the
appellant had three facially valid convictions at the time of the hearing.
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Therefore, there was no material dispute of fact created by the filing of the post-
conviction relief petition.
With regard to the appellant’s contention that the state did not establish
identity, the state argues that the appellant “implicitly admitted to his convictions.”
It notes that the trial court commented during the hearing that “the defendant has
admitted that he has been punished on each and every one of the convictions.”
Thus, the state maintains that identity does not present a material dispute of fact
warranting a jury trial.
From our review of the record, we must agree with the state. Everhart
plainly states that collateral attacks on convictions are not proper at a habitual
offender hearing. Furthermore, we find nothing to indicate that the appellant is
not the same Ralph D. Cooper as the person in the three convictions. Thus, this
issue is without merit.
In his second issue, the appellant contends that the trial court erred by
denying his motion for a continuance. He maintains that because he filed a post-
conviction relief petition challenging one of his convictions, the court should have
granted him a continuance until a decision of his petition had been rendered. He
argues that the trial court abused its discretion by denying him a continuance,
which “in effect punished and deprived [him] of due process of law by legally
barring him from operating a motor vehicle, while the validity of one of the
qualifying offenses was in material dispute.”
The state asserts that the trial court did not abuse its discretion. It notes
that “the granting of a continuance rests in the sound discretion of the trial court.”
The state insists that the appellant’s post-conviction petition was immaterial to
the habitual offender hearing.
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We agree with the state that the trial court did not abuse its discretion.
The appellant had three facially valid convictions at the time of the hearing; and
as the state notes in its brief, that is all that is required before the hearing can
proceed. This issue is without merit.
Next, the appellant argues that the trial court erred by improperly admitting
evidence of the appellant’s 1991 conviction. He asserts that the state attempted
to introduce the 1991 conviction but that “it had not been properly authenticated,
and thereby should have been excluded under Rule 901 of the Tennessee Rules
of Evidence.” Furthermore, he contends that the evidence of the conviction was
inadmissible under evidence Rule 902 because it did not bear the official state
seal.
The state maintains that the evidence of the appellant’s 1991 conviction
was properly admitted. It contends that the conviction was certified by the
deputy clerk of the general sessions court of Shelby County. The state
acknowledges that although the certification was signed, there was no seal
affixed. The state insists that Tennessee Rule of Evidence 901(b)(7) provides
that, as in this case, the certification of the deputy clerk provides evidence that
the copy of the conviction was from the general sessions court where such
records are kept. Furthermore, it argues that there is nothing in the record, or
from the appellant, to suggest that the copy of the 1991 conviction was false.
Thus, the evidence of the conviction was properly admitted.
Although the seal was not affixed, the signed certification of the deputy
clerk was sufficient to indicate that the copy of the 1991 conviction was not false
or unreliable, especially in light of the appellant’s failure to provide proof to the
contrary. This issue is without merit.
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Finally, the appellant in his fourth issue invites this Court to revisit the
issue of whether the Motor Vehicle Habitual Offenders Act violates double
jeopardy, noting that our Supreme Court has held that the Act does not violate
double jeopardy. State v. Conley, 639 S.W.2d 435 (Tenn. 1982). The state
argues that because the appellant fails to provide an argument for his request,
this issue is waived pursuant to Rule 10(b) of the Rules of the Court of Criminal
Appeals.
We decline the invitation to revisit the issue of double jeopardy. This
issue is waived.
Finding no error mandating reversal, we affirm the trial court’s judgment.
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______________________________
PAUL G. SUMMERS, Judge
CONCUR:
___________________________
JOHN H. PEAY, Judge
___________________________
THOMAS T. W OODALL, Judge
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