# FILED
April 17, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1997 SESSION

LESLEY BUFORD, * * Appellant, * VS. * * STATE OF TENNESSEE, * * Appellee. *

* C.C.A. # 03C01-9603-CR-00096

HAMILTON CO UNTY Hon. Stephen M. Bevil, J udge (Post-Conviction)

For Appellant: Lesley Buford, Pro Se South Central Correction Facility P.O. Box 279 Clifton, TN 38425-0279 For Appellee: Charles W. Burson Attorney General & Repor ter Robin L. Harris Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493

OPINION FILED:

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The petitioner, Lesley Buford, appeals the trial court's dismissal of his petition for post-conviction relief. The single issue presented f or our review is whether the trial cour

t 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, w e affirm the judgment of the trial cour t.
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 senten ce of eleven months twenty -nine days for the disorderly conduct offense to be served concurrently

with consecutive s

entences of three years, two y

ears, and two years for the first three habitual motor offender violations. A two-

year sentence for the fourth v iolation is to be serv

ed concurrently. We calculate the effective sentence as seven y ears 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 reli ef, alleging (1) that hi s guilty pleas had not been knowingly made because a seven-year r ather than a six-year

sentence had been imposed; (2) that his defense counsel was ineffective; and (3) that his conviction violated doub le jeopardy principles.The petitioner requested the appointment of counsel. The state filed no response.3 Utilizing the Pos

t-Conviction Procedur

e 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 reli ef; (2) the transcript of the pl ea hearing showed that the court informed the petitioner he would receive a sevenyear sentence and this sent ence was in accordance w ith the plea agreement; (3) by pleading g uilty, the defendant waiv ed his right to attack defects in his cases i ncluding his claims tha t the two felony drivin g 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 do es not include a possible g round for reli ef: Upon receipt of a petition in pr oper form, or upon receipt of an amended petition, the court shall examine the allegations of fact in the petit ion. If facts alleged, taken as true , fail to show that the petitioner is entitled to rel ief ... the petition shall be di smissed. Tenn. Code Ann. § 40-30-206(f) (1996 S upp.) (emphasis added).

Case law before the 1995 Act provides some guidance.To make a claim "colorable" or acti onable, 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 s tatutory law in ex

istence before the 1995 Act, as "one that all eges fac

ts show ing tha t the con victi on resul

ted from a n abridg ment of a constitutional right an d which demonstrates that th e ground for relief was not previously determin ed 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 [pe titioner]4 can prove no set of facts in suppor t of his claim which w

ould entitle him to relief." Swanson v. State , 749 S.W.2d 731, 73 4 (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 color able 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 tr ial court "may provi de counsel and allow time for an amendment to the petition." Id . Before there can be a preliminary dismissal, however, the statute r

equires the trial cour

t to assume "as true" the facts all eged by the petitioner. Here, the petitioner, despite the contents of the transcript of his gui lty 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 knowi ngly nor voluntar ily entered; he contended that but for the deficient representation of his c ounsel, he would not have conceded his guilt to the charges that he had viol ated the habitual offender order and w ould have insisted on a trial.

Here, it is clear from the transcript of the sentencing hearing that the trial court carefully

explained his sentence l ength to the petitioner. When asked if he understood, the petitioner res ponded, "Seven years, total of seven years." The tri al judge again inquire

d, "Total of seven years. Thr ee plus two, plus tw

o?" The petitioner agreed to the sentence on the record. It can be conclusively deter mined from the record that the petitioner acknowledged his acc eptance of a seven-year sentence. Because the complaint about the length of the sentence is the only basis5 for the allegation that the ple a was not voluntary , this court must conclude that the trial court correctl

y found that the plea was know ingly made.
Next, the petitioner cl aims that his trial counse l was ineffective for allowing him to plead guilty to two co unts of habitual vehicle motor offender violation, because the offenses w ere committed on the same day and th us "constitute[d] one offense un der Tennessee law." The petitioner goes on to claim that these two offenses were us ed to qualify him as a habit ual vehicle motor offender. The record, however,establishes that the petiti oner is not entitled to rel ief. While driving offenses comm itted on the same day are considered as a single offense when computing the number of conv ictions required to q ualify as a habitual motor offender, Tenn. Code Ann. § 55-10-604, th e same is not true for viol ations of an existing order. The record shows that the tw o violations at issue were for the abridgements of an order alread y in place, not the underl ying offenses used to declare the petitioner a habitual offender. The petitioner has inco rrectly interprete d the law; thus his counsel could not have been ineffective on this basis.

Lastly, the petitioner c

laims that his counsel w as ineffective by failing to protect the petitioner's right against double j eopardy. The petitioner cl aims that one of the habitual motor offender violations had been dismissed in the Chattanooga City Cour t before being reviv

ed with the three others i n the Criminal Court of Hamilton County.

In State v. Knight , 616 S.W.2d 593 (Te nn. 1981), our supreme court made the following comment about do uble jeop ardy:

The essence of the prohibition against double jeopardy is ... that[, i n the second trial, the defendant] would risk convi ction for an offense for which he has already be en place d on trial and in jeo pardy.6 Id. at 595 (citations omitted).In Abney v. United States , 431 U.S. 651 (1977), the United States Supreme Court ex plained the reason for the protect ion: [T]he State with all its

resources and power sh ould not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and or deal, and compelling him to live in a conti nuing sta te of an xiety and in security, as well as enhancin g the possibility tha t even though innocen t he may be found gu ilty. Id. at 661-62. Once a criminal prosecution reaches the point where jeopardy attaches, the defendant may not be retr ied on the same offense; however, this point varies depending on w hat legal action is take n. Jeopardy does not attach at an arraignment or prelimi nary 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 prope rly indicted; he has properly waived his rig ht to a jury trial; the case is before a court w ith jurisdiction ov

er the matter; the judge is qual ified and present; the defendant has entered his plea; and the witness (one or al l) has been sworn. State v. Daniels , 531 S.W.2d 795, 801-02 (Tenn. Crim. App. 1975). Testimony by a witness is n ot necessary. Id. at 802. In a jury trial, jeopardy attaches at a similar point: when the defendant is before a cou rt with jurisdiction ; there is a proper indic tment; and the jury has been i mpaneled 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 do uble jeopard y: (1) When the defendant actively seeks or consents to the premature termination of the proc eedings (provided that he has not been caused to do so by the overreaching of the prosecution or judge); (2) When the proceedings were cause d to terminate through the misconduct of defense coun sel and there was no feasible alternative to halting the proceedings; and1 Tenn . Code A nn. § 6-2 1-501 g rants city co urts "con curren t jurisdiction a nd autho rity with courts of gener

al sessions"in the same county . Tenn. Code Ann. §§ 16- 15-401, -501, 40-1-109 defines the

jurisdi ction of g eneral sessi ons courts which includes t he authori ty to try misdemeanor cases. 7

(3) Where there is a manifest necessity for the dismissal else "the ends of public justic e 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 N ashville, Nov. 7 1 989), app. granted and aff'd on unrelated issue , State v. Bryant , 805 S.W.2d 762 (Te nn. 1991) (citations omitted).

Here, however, the petitioner was never in jeopardy. The city court must hav

e had jur isdict ion ove r the cr

iminal prosecution of "f eloniou s operat ion of a motor vehicle" in order for the petitioner to show that jeopardy had attached. "[A ] municipal or corporation c ourt has no jurisdiction to hear cases based upon vi olation of State statutes unless the Legi slature 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 muni cipal courts. While these courts have been g ranted jurisdiction ov er most misdemeanor crimes 1 , they do not have authority to hear felony cases. The petitioner contends his charge in city

court was a felony; i n our view, the Chatt anooga City court did

not have juris diction t o adjudic ate the c ase. Thu s, defen se counse l could no t have been ine ffecti ve by failin g to raise t he issue o f double jeopardy.

Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Judge CONCUR:8 _______________________________ William M. Barker, Judge

________________________________ Curwood Witt, Judge