# FILED
March 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JANUARY, 1998 SESSION

TERRY T. LAMM, ) No. 03C01-9702-CC-00073 ) Appellant, ) ) Blount County vs. ) ) Honorable D. Kel ly Thomas, Jr., Ju dge ) STATE OF TENN ESSEE, ) ) (Post-Conviction) Appellee )

FOR THE APPE LLANT: FOR THE APPELLEE: KEVIN SHEPHERD JOHN KNOX WALKUP 404 Ellis Ave. Attorney General & Repor ter Maryville, TN 378

04 MICHAEL J. FAHEY, II Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 MICHAEL L. FLYNN District Attorney General PHILIP MORTON Assistant District A

ttorney General 363 Court St. Maryville, TN 378

04

OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE1 The petitioner did not file an appli cation for permission to appeal to the

Tennessee Supreme Court.

2 The record indicates that at the time of Lamm ’s indictment, Kevin Shepherd was employed as an assistant public defender. After representing Lamm in General Sessions Court, Shepherd began his own practice. Natalie Staats Hurley took ov

er the case and was Lamm’s defense attorney at trial and on direct appeal. Apparently, Lamm and his family then hired M r. Shepherd to represent him in post-conv iction proceedings.

2 OPINION

The petitioner, Terry T. Lamm, appea ls pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure fro m the Blount C ountyCircuit Court’s denial of post-conviction reli ef. In 1994, ajury found the petitioner g uilty of leaving the scene of an accident, andthe trial judge sentenced him to elev en months and twenty-nine

days with sixteen days to be ser ved on weekends

or work release and the balance on probation. State v. Terry T. Lamm , No. 03C01-9401-CR-0030, slip op. at 2 (Tenn. C rim. App., Knoxville, Oc tober 6, 1995). 1 Lamm was free on bond while his conviction was on appeal. When this court found that the evidence was legally sufficient to sustain his conviction and affirmed the trial court’s denial of full probation, he fled the jurisdi ction. The capias was nev er served.

The Blount County Public Defender represented the defendant at trial and on appeal. After the conviction and sentence were affirmed, petitioner’s family hired an attorn ey. 2 Defense counsel timely filed a petition for post-conviction re lief alleging ineffective assistance of counsel in Novembe r, 199 5. Attached to the petition was the affidavit of Donald Wes Dodson. Dod son, who was then incarcerated in Florida, admitted that he was dr iving Lamm’s vehic le when the accidentoccurred and that he was the per son who dro ve away from the scene. According to the affidav it, Lamm was not in the vehicle at the time of the accident. On June 26, 1996, the petitioner file d an af fidavit in which he w aived the right to appear at his post-convicti on hearing. The trial court held a hearing on October 11, 1996. When the petitioner failed to appear, the trial j udge, finding that it w as neither reasonabl e nor ap propriate to hear the petiti on without the petitioner present,3 Because we find that the petitioner, who had voluntarily absented himself

from the court’s jurisdic tion to avoid servi ng his sentence, had no rig ht to file for post-conviction reli ef, we do not summarize the tes timony presented at the hearing.

4 This section provides:

The peti tioner sh all appea r and give testimony at the evidentiary hearing if such petition raises subs tantial questions of fact as to events in which the petitioner participated,unless the petitioner is incarcerated out of state, in which case the trial judge may permit the introduction of an affidavit or deposition of the petitioner and shall permit the state adequate time to file any affidavits or depositions in response the state may wish. Tenn. Code Ann. § 40-30-210(a). 3 refused to he ar an y testimony. Althoug h the trial judge did not remain in the courtroom, he allowed defense counsel tocall hi s witn esses as an offer o

f proof. 3 On October 30, 1996, the trial j udge entered the following order dismissing th e petition: This cause came on the court’s docket thi s date

fora hearing for Post Convi ction Relief. TheCourt finds a material issue of fact exists that requir es the testimon yof the petitioner, i.e. , the inef fective assistance of counsel. The petition has been reset and the petitioner has failed to ap pear, be ing on the run from the execution of the jail sentence in theunderlying case. The petition is dismis sed.
Although for different reasons, we affirm the di smissal of Lamm’s petition for postconvic tion re lief.

In this appeal, the petitioner argues that the voluntary ab sence of a convicted misdemeanant from ahearing is not a ground for dismissing a petition for post-convictio n relief. He contends that a petitioner’s presence at the postconviction h e aring is required by statute only w

hen the petition raises subst antial questionsof facts as to events in wh ich t he petitioner participated. Tenn. Code Ann. § 40-30-210(a) (1997). 4 In this instance, defense counselat the postconviction hearing represented the peti tioner in gen eral sessions court and was able4

to testify as to the information he had given to the assistant public defender who assumed responsibility for th e case at trial and on dir ect appeal. Since the petitioner

was neither pr

esent at the accident nor invol ved in the discussions between the two attorneys, he argues that his presence w as not requiredbylaw. Th e state, on the other hand, contends that the trial court could not resolve the issue of ineffective assistance of counsel without thepresence of the petitioner and trial counsel.

We find it unnecessary to re ach this issue. The true question is whether a person convi cted of a misdemeanor who flees from the jurisdiction and remains at large is entitled t o seek post-conviction rel ief. We found no Tennessee
case precisely on point. H owever, after revi ewing well-es tablished princ ipl es of Tennessee law as they pertai n to convicted felons, w e conclude that personswho
are convicted of any crime, felony or m isdemeanor, and who voluntarily place themselves outside the reach of Tennessee courts, may not seek post-conviction relief as long as they refuse to submit to the proper author ities.

Tennessee courts have consistentl y applied the rea soning first adopted in Bradford v. State , 184 Tenn. 694, 202 S.W.2d 647 (1947). In Bradford , aftera jury

convicted the defendant of manslaught er, defense counsel filed a motion fornew trial . On the day the mo tion was set for hearing, the defendant w as not presentand the trial court dismissed the motion “for want of prosecution.” Bradford , 184 Tenn. at 695, 202 S.W.2d at 647. Although the defendant continued to be a fugitive from justice, defense counsel filed a notice of appeal. Id . Our s uprem e court affirmed the trial court’s dismissal of the motion f or ne w trial. The court reasoned th at the s ituation was analogous to that where a convic t escapes from custody while an appeal is pendi ng. Bradford , 184 Tenn. at 696-97, 202 S.W.2d at 648. The general rule in those cases is that whena defen dant bec omes a f ugitive from justice while his

appeal is pending and is at large at the appointed time for the hearing of the appeal, “his appeal should peremptorily be dismissed on motion, on5

the ground that hehas thereby waiv ed his right of appeal.” Bradford , 184 Tenn. at 697, 202 S.W.2d at 648 (citations omitted).

The Bradford court found that the reasons for dis missing an appeal when the appellant had escapedwere equally appl icable tothose on bond who fled aftera motion for new trial had be en filed. A motion for new trial, like an appeal, is not a prosecution brought b y the state but a proceeding in error brought by

the defendant himself. Bradford , 184 Tenn. at 696, 202 S.W.2d at 648 (citing Vowell
v. State , 132 Tenn. 349, 361, 178 S.W. 768, 771(1915)). The court reaso ned that

[i]f a trial court should ov errule the mot i on for a new trial, its order and j udgment based the reon may never be enforced because the defendant by escaping has placed himself beyond the contr ol of the court. He cannot be made to respond to any judgment which may be rendered in the case, assuming it could berendered in his absence. Therefore, the trial court should not be required to give its “time to proceedings which, for their effectiveness, must depend upon the c onsent” of the defendant. Bradford , 184 Tenn. at 698, 202 S.W.2d at 648-649. Therefore, our supreme court conclu ded that “the defendant by his ow n act has waived the r ight to have hi s motion for a new trial considered and determined. His conduct was in legal effect an abandonment of the prosecutio n of the motion.” Id

.

The holding in Bradford was clarified in Knight v. State , 190 Tenn. 326, 229 S.W.2d 501 (1950). In Knight , the defendant escaped from jail after his appeal had been perfected. Knight , 190 Tenn. at 327, 229S.W.2d at 501. At the time the court heard the appeal, however, the defendant had been recaptured. Id

. Because the defendant was again in custody, the supreme court denied the state’s motion to dismiss the appeal

. Id .; see also Campbell v. State , 576 S.W. 2d 591, 592 (Tenn. Crim. App. 1975); State v. Jerry Lewis Lipford , No. 36, slip op. at 3 (Tenn. Crim. App., Jackson, March 9, 1988).

A number of cases have considere d the app lic ability of this rule to post-convictioncases. In Brown v. State , the defendant fled after filing a motion for6

new trial. Br ow n v. State , 537 S.W.2d 719 (Tenn. Crim. App. 1975). Because of his flight, the motion was dismissed and no appeal was taken. Id . at 720. He was apprehended after the time for filing a dir ect appeal had expired, and when he filed
a post-conviction petition, the trial court hel d that he had waived his right not only to a new trial motion and a direct appeal but al so any right to a delayed appeal or relief under post-convic tion procedure. Id

.

The Tennessee Supreme Court, howev er, overruled Brown in French
v. State , 824 S.W.2d 161 (Tenn. 1992). In French , the supreme court reiterated the rationale of Bradford that a defendant who places himsel f beyond the control of

the court waives the rig ht to be heard, and that a court is not required to give its time to proceedings when their effectiveness requires the consent of an abs ent defendant. Id

. at 162. On the other hand, in those cases where the post-conviction petition is filed after the es caped prisoner has returned to c ustody , the defendant is entitled to have the petition consider ed on its merits. French , 824 S.W.2d at 163 (citations omi tted). However, the court also held that “a post-conv iction petition is not a vehicle to review errors of law as a substitute for a direct appeal

. Nor is a convicted felon in escape status entitled to relief under the provisi ons of the Post-Conviction Procedure Act. ” Id . (emphasis added). This cour t followed theholding

of French in Anderson v. State

where it found that post-conv iction procedur e is available to t hose who have been returned to custody although a delayed appeal i s not permissible. Anderson v. State , 835 S.W.2d 40, 42 (Tenn. Crim. App. 1992); see also Curtis v. State , 909 S.W.2d 465 (Tenn. Crim. App. 1995).

The law in Tennessee clearl y requires that a peti

tioner who has escaped must retu r n to custody before a post-conv iction proceeding becomes available. The petitioner attempts to distinguish his situation in this case from those5 We also disagree with the state’s contention that Lamm is “in cus tody” of the State of Tennessee for the purposes of the Pos t-Conviction Act. Tennes see Code Annotated section 40-30-202 al lows “a person in custody under a sentence of a court of thi s state” to petition for post-conv

iction rel ief within

a specified time limit. Although the phrase “in custody,” has been interpreted to include those who suffer from any possibili ty of restraint on liber

ty, see , e.g ., Albert v. State , 813 S.W.2d 426 (Tenn. 1991); State v. McCraw , 551 S.W.2d 692 (Te nn. 1977), we do not believe that ei ther the legislature or

our supreme court intended to extend this broad interpretation of “in custody” to those who have voluntarily taken themselves outside the jurisdiction of the court. 7 in pri or cases. He contends that s ince he is neither on escape status no r a convicted felon he is entitled to pursue a post-c onviction petition in absentia . We disagree. 5

Petitioner is correct when he s

tates that h e has no t escaped from custody. When this court affirm ed his conviction and sentence, he failed to turn himself in to serve his sentence. Therefore, he did not , literally, escape. Our law, however, has never

distinguished between those who escaped from jail and those wh o ab sconded while on bail. Neither Tom Bradford nor George French were “escaped” convicts. Bradford jumped bail after filing a motion for ne w tri a l. Bradford , 184 Tenn. at 695, 202 S.W.2d at 647. French absconded shortly before the jury returned its g uilty verdict. French , 824 S.W.2d at 162. The fact that they did not “escape” from custody w as in no way determinativ e of the results. See also Mayesv. State , 671 S.W .2d 857 (Te nn. Crim. App. 1984) (defendant fled after motion for new trial); Calvin Shazel v . State , No. 03C 01-9508-CC -00232 (Tenn. Crim. App., Knoxville, N ov. 20, 1996), state’s perm . app. gr anted (Tenn. 1997) (defendant fled after counsel filed a motion to withdraw his guil typlea); State v. GaryS. Mayes , No. 1201 (Tenn. Crim. App., Knoxville , Apr. 14, 1989) (appellant fled while motion for new tr ial was pending); Fred Ha rlan A rmes v. State , No.161 (Tenn. Crim. App. Knoxville, Jan.26, 1988) (defendant fled upon bondrevocation). In each case, the determinativ e factor is whether th e defen dant was in custody at the time the court conside red the defendant’s motion or post-conv iction petition. French , 824 S.W.2d at 164; Bradford , 184 Tenn. at 697, 202 S.W.2d at 646; Mayes , 671 S.W.2d at 858; Calvin Shazel , slip op. at 8; Gary S. Mayes , slip op. at 2-3; Fred8

Harlan Armes , slip o p. at 5. Clearly, the r ule of French is not limited to those who “escape” from custo dy. The specific facts surrounding this petitioner’s voluntary flighthave no

effect on

the ava ilabil ity of post-con victi on reli ef. If a petitione r is a fugitive at the time of the hearing, the petiti on for post-conviction rel ief should be dismissed.

Petitioner also argues that

he is entitled to pursue his claim because he was convicted of

a misdemeanor rather than a felony. Although it is true that in every previous case the defendant was a convicted felon , we find no justification for excluding misdemeanants from the same

r ule. The

reasoni ng of Bradford as reaffirmed in French a ppl ies to misdemeanants as well as felons. One convicted of a crime who places himself beyond the control of a court waives the rig ht to have that court hear his petition for post
- conviction relief. French , 824 S.W.2d at 163 (citing to Bradford v. State , 184 Tenn. 694, 202 S.W.2d 647 (1947)). As a fugitive, the petitioner in this case cannot be made to respond to any judgment or court order. Therefore, acourt should not be requi red to give its time to proceedings that
m aywell be ineffective due to the absence of the petitioner. The fact that th e petitioner

in this instance was

convicted of a misdemeanor rather than a felony is a distinction without a difference.

The petitioner

in this cas

e voluntar

ily absent

ed himself from the court’ s jurisdiction to avoid serving his sentence. He was at large at the time of his postconviction hearing, and he remains a fugitive today so far as this court can discer n. Unde r these ci rcumsta nces, he is not e ntitled

to seek post-co nvicti on reli ef. Th e trial court correctl

y dismissed Lamm’s petiti on. The judgment is affirmed.

__________________________ CURWOOD W ITT, Judge CONCUR:9

______________________________ GARY R. WADE, Judge

______________________________ JOSEPH M. TIPT ON, Judge