# FILED

September 10, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE SESSION, 1998

TOMMY JOE WALKER, ) ) No. 01C01-9707-CR-00297 Appellant ) ) DAVIDSON COUNTY vs. ) ) Hon. Walter C. Kurtz, Judge STATE OF TENN ESSEE, ) Ex Rel, Donal Campbell, ) (Writ of Habeas Corp us) Commissioner of the ) Tennessee Department of ) Corrections and Ricky J. Bell, ) Warden, ) ) Appellee )

For the Appellant : For the Appellee : Mark E. Stephens John Knox Walkup Public Defender Attorney General and Repor ter Paula R. Voss Karen M. Yacuzzo Asst. Public Defender Assistant Attorney Gener al 1209 Euclid Avenue Criminal Justice Div ision Knoxville, TN 37921 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493

OPINION FILED:
AFFIRMED

David G. Hay

es Judge1 This convict ion for vo luntary manslaughter, whi ch involv ed a crime of vi olence to t he person , see Ten n. Co de A nn. § 39-1 3-20 4(i)(2 ), rem ains , after appe llate re view, the s ole agg rava ting s ente ncin g circ um stan ce fo und by a jur y in im pos ing th e dea th pe nalty in his subse quent c apital m urder trial. See Walker , 910 S.W.2d at 396, 398. 2 OPINION

The appellant, Tommy Joe W alker, appeals the Davidson County Circuit Court’s su mmary dis missal of his appli cation f or writ of h abeas co rpus. Spe cificall y, the appellant contends that the tr ial court erred in finding that his 1977 conviction for voluntary manslaught

er was not void. The appe llant is currently incarcerated at the Riverbend Maximum Security Institute in N ashville awaitin g execution for an unrelated murder committed in 1989. See State v. Walker , 910 S.W.2d 381(Tenn. 1995), cert. denied , --U.S.--, 117 S.Ct. 88 (1996).

On January 4, 1977, pursuant t o a negotiated plea agreement, the appellant entered a guilty plea in the Knox County Criminal Court to one count of voluntary manslaughter committed whi le on parole. 1 The judgment form entered in conformance with the plea agr eement provides, in parts pertinent to this issue: It is, therefore, considered by the Court that the defendant , for the offense of which he stands convicted, shall undergo confinement in the penitentiary of the State, at hard labor, for a period of not l ess than 4 years nor more than 4 years,from the date of his conviction; that be rendered infamous, as provi ded by law , and that the defendant . . . . pay all the costs of this prosecution, which are adjudged against him from which SENTENCE TO BE SERVED *SEE ATTACH ED CERTIFIED COPY execution may issue. (The defendant’s imprisonment in this case will begin at the expiration

of run concurrently with [his] sentence in case No. 7545/) & W/7394 *SEE ATTACHED CERTIFIED COPY.

. . . The minutes attached to the judgment form fur ther provide: . . .This sentence to run concurrently . . . with the sentence imposed in case No. 7545, and thereafter concurrently. . . with the sentence imposed in case No. 7394, said concurrency beginnin g July 14, 1976 .

. . . [T]hat is, to be served in so far as it can be concurrent , and the remainder served thereafter until completion; Provided, fu rther, however that the judg ment in this case shall not l imit the authority or discretion of the Parole Board granted by T.C.A. 40-3620, with respect to the defendant’s prior cases i n which he has been paroled and2 In essence, t he appellant attacks the v

oluntari ness of his gui lty plea based upon t he prom ise of con curren t sentenc es. Hab eas co rpus relief is not availab le where it is necess ary to challeng e a facially valid co nviction with e xtrinsic evid ence. State v. Burford , 845 S.W.2d 204, 205 (Tenn. 1992). The appellant’s all egation t hat the promise of concurrent sent

ences induced his guilty pl ea is extri nsic evide nce.

3 In Henderson , the defen dant co mm itted a robb ery with a dea dly weapo n while on parole . Henderson , 419 S.W.2d at 177. Subsequen tly , the parol ed defendant entered into an agreement where he would pl ead guilt y to si mple robbery, the maximum sentence would be fiv e years, an d the sen tence w ould be s erved c oncurr ently with the se ntence being se rved on parole. Id . The same statute requi ring consecut ive sentences was in effect at that time and the court

’s judgment was contrary

to the statutory

mandate. The supreme court hel d that t he defendant’ s application for a writ of h abeas corpus was pro per. Id . at 179. The court held that the defendant was ent itl ed to withdraw his guilty plea sinc e it was pa rtly based up on con curren t sentenc ing cons iderations

. Id . at 179. 3 charged with parole violation; that is, the concurrency aspect of this sentence is subject to limi tation by the Parole Board in its revocation proceedings. . . .
(emphasis added).
On April 3, 1997, the appellant filed an application for wr it of habeas corpus alleging that the 1977 jud gment entered against him i s void because his “pl ea of guilt was premised upon the promise of a concurrent sentence,” which the trial court had no authority to impose. 2 The trial court dismiss ed the appellant’s applicati on finding that the appellant’s c laim did not constitute a v alid claim for habeas relief because the judgment, from its face, w as not void. The appellant, i n contesting the decision of the trial court,asserts that the 1977 judgment form reflects that the appellant’s sentence was to be served concurrentl y with two outst

anding sentences for which he was on parole at the time of the present off ense. Relying exclusively
upon Henderson v. State ex rel. Lance , 419 S.W.2d 176 (Te nn. 1967), 3 he argues that this judgment, whi ch is contrary to the statutory mandate of the exis ting law at the time, Tenn. Code Ann. § 40-3620 (1978 Supp.), is void on its

face as the trial court was without the authority to impose concu rrent sentences.

Habeas corpus relief is available in Tennessee only when ‘it appears upon the face of the judgment or the record of the proceedings upon which the judgment is r endered’ that a convictin g court was without jurisdiction or authority to sentence a defendant, or that a de fendant’s sentence of imprisonment or other r estraint has expired.4 Specifical ly, Tenn. Code Ann. § 40-3620 pr ovides: If any p rison er be conv icted in this s tate o f a felo ny, co mm itted w hile on paro le from a state pris on or wo rkhou se, he shall ser ve the remainder of

his sentence, under which he was par oled, or such part of t hat sentence, as the board may dete rm ine be fore he co mm enc es s ervin g the sent enc e aff ixed while o n par ole . If any prison er while on parole fro m a s tate prison or work house shall com mit a crime under the l aws of another st ate government or count ry which,if committed withi n this st

ate, woul d be a felony , and if he shall be convicted of such a crime, the direct

or of the deci sion of probation and parol es shall r eturn such a prisoner through the t

erms of the interstate compact. The board shallrequire that he serve the portion remainin g of his maximum term of sentence or such par t as the board may determine . The board at i ts discretion, may recommend to the commissioner of correct ion, t he removal of al l or any part ther

eof of the good a nd honor time and i ncentive time accrued on the sentence under which he was paroled. (Empha sis added). 4 Archer v. State , 851 S.W.2d 157, 164 (Tenn. 1993) (emphasis added). Bec ause the record reflects that the judg ment of conviction is not v oid on its face and that the trial court was clearly

vested with juri sdiction to impose the resulting sentence, the remedy of habeas corpus is not available to the appellant in this case.

Although we concede the princ iple of la w establis hed by Henderson , the case presently before this court is distinguishable from the facts bef ore the court in Henderson . We are unable to discern from the opinion in Henderson whether the trial court was aw

are of the defendant’s paroled status, o r if such information appeared on the judgment. See , Bergdorf v. State , No. 01C01-9508-CC-00279 (Tenn. Crim. App. at Nashv ille, Oct. 8, 1996). In th e case before us, there is no indication that the trial court was aware of the Board of Parole’s determinat ion, in fact, the judgment is expres sly conditioned upon the Boar d’s future action. From the record before us, we cannot be certain that the sentences ar e indeed illegal, and, therefore, void. See Bergdorf , No. 01C01-9508-CC-00279. The explicit language of the judgment provides that the concurrent aspect of the senten ce is not definite, but is subject to the determinati on of the Board of Paroles. As conferr ed by our Legislature, only the

Board of Pardons and Paroles has the authority to revok e a parolee from a paroled sentence and det ermine what portion of the par oled sentence he is to serve. 4 See Tenn. Code Ann. § 40-3620. It is not apparent from the face of the judgment or from the recor d on appeal whether the appell ant was5 We note that the appel lant has failed t o provide a complet

e record on whichto base our review. Specifical ly, a transcri pt of the gui lty plea heari ng is not pr ovided nor is any indi cation as to the manner in which the appell ant’s 1977 sent ence for manslaughter was served. Thus, other than the quest ion of l aw currently before this court we have no evidence that the appel lant has been a ggrieved in any ma nner or th at he has not rece ived the be nefit of his p lea barga in.

6 An applicat ion for the issuance of a writ of hab eas corpus may be summarily di smissed by a trial court if the application fails to indicate that the pe titioner’s con viction is void. See Tenn. Code Ann. §§ 29-21-1 01, -109 (1980). If the writ is refuse d base d on the fa ilure of the pe tition to raise a cognizable claim for relief, any need for a hearing is obviously pretermitted because there is no justicia ble issue before th e court. See State ex rel . Byrd v.Bomar , 214 Tenn. 476, 381 S.W .2d 280 ( 1963). See gene rally Tenn. Code Ann. §§ 29-21- 101 to -130 (198 0 and Supp.1 996).

7 See Ex parte Patterson , No. 72,866 (Tex. Crim . App. June 10, 1998)( for publi cation ) (Baird, J., co ncurring ) (citing Rule 9, 28 U.S .C. 224; Lonchar v. Thomas , 517 U.S . 314, 116 S.Ct. 1293 (1996); W alters v. Sc ott , 21 F.3d 683 (5th Cir. 1994 ); Strahan v. Blackburn , 750 F.2d 438, 441 (5th Cir.), cert. deni ed , 471 U.S . 1138, 10 5 S.Ct. 26 83 (198 5); Falkne r v. State , 586 So.2d 39 (Ala. Crim . App. 199 1), overruled on other grounds , W allace v. Sta te , 666 So.2 d 864 (Ala. C rim

. App. 19 95); In re Stan kewitz , 220 Ca l. Rptr. 382, 7 08 P.2d 1260 (C al. 1985); McC ray v. State , 699 So.2d 1 366 (Fla . 1996); Thom as v. State , 903 P.2d 328 (O kla. Crim . App.), cert. di smissed , 516 U.S. 10 20, 116 S .Ct. 593 (1 995); Flute v. Class , 559 N.W .2d 554 ( S.D. 19 97)). 5 ever revoked from his pa roled sentences, and, if he w as revoked, as to whi ch part of the paroled sentences he was required to serve. 5 Additionally, the appel lant has presented no evidence to suppor t his allegation that hi s sentences were, indeed, served consecutivel

y. Thus, it is not clear

on its face that the judgment is void. Rather, t he judgme nt merely i ndicate s that the judgment is voidabl e. Accord ingly, the trial court did not er r by summarily dis missing the appellant’s application. 6

Additionally, althoug h we acknowledge tha t our supreme court has rej ected the doctrine of laches to applic ations for habeas corpus reli ef, see, e.g. , Wills v. State , 859 S.W.2d 308, 31 0 (Tenn. 1993) (refusing to apply doctrine of laches in post-conviction setti ng); Potts v. State , 833 S.W.2d 60, 62 (Tenn. 1992) (habeas corpus has no statutory time limitation); see also Adkins v. State , 911 S.W.2d 334, 342 (Tenn. Crim. App. 1994), perm. to appeal dismissed , (Tenn. 1995), other courts have applied this equit

able doctrine to this area. 7 The doctrine of laches is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. B LACK ’ S L AW D ICTIONARY 875 (6th ed. 1990). “It is defined as neglect to assert a right or cl aim which, taken together with lapse of time and other circumstances causing pr ejudice to adverse party, operates as a bar in a cour t of equity.” Id . This doctrine c ould properly be a pplied to habe as corpus procee dings6

when the delay in bri nging a claim for coll ateral relief has been unreasonabl e and unjustified and the State has been pre judiced in responding to the claim. See Ex parte Patterson , No. 72,866 (Tex. Crim. App. June 10, 1998) ( for publication ) (Baird, J. concurring) (encouraging court to reconsider application of doctrine of laches in habeas proceedings). Although a void judgment may be attacked at any time , because convictions must ev entually become final, an inmate mus t not be permitted to engage in inordinate del ays in bringing their claims for relief before the courts without justification. See Wills , 859 S.W.2d at 312 (O’Brien, J., concurring in part and dissenting in part); State v. White , No. 1101 (Tenn. Crim. App. at Knoxville, Apr. 21, 1987), perm. to appeal denied , (Tenn. June 29, 1987). See also Ex parte Patterson , No. 72,866 (Baird, J., concurring). The State has a legitimate interest in preventing the liti gation of stale or fraudulent cl aims. Wills , 859 S.W.2d at 312 (O’Brien, J. conc urring in part and d issenting in part) (quoting Burford v. State , 845 S.W.2d 204, 208 (Tenn. 1992)).

In 1977, after being indicted for murder, the app ellant pled guilty to voluntary manslaughter and received the benefits of a negotiat ed four year sentence. This sentence was served by the appellant without objection. Following expiration of this sentence, whether serv ed either consecutive or concurrent to a parole v iolation, the appellant was released from c onfinement. Now, twenty -two years later, he challenges his convi ction based upon an error in sentencing which has already been served. Although he seek s redress for this error, he offers no excuse or reason for the delay. The record reflects no “procedural trap” or external impediment which has occasioned the delay. See generally , Crank v. Duckwor th , 969 F.2d 363,365 (7th Cir. 1992). Because the remedy sought today was equally av ailable by means of post-conviction reli ef twenty-two y ears ago, we can only

assume that it was the appellant’s de cision to forgo a ny challenge durin g incarceration an d avoid risking a conviction for murder.7 The unwarranted filings of such delayed claims unnecessarily clogs the court dockets and represents an abuse of the judicial process. As stated by the United States Supreme Court, “[n]o pr ocedural principle is more familiar to this Court than that a constitutional rig ht may be forfeited in criminal as well as civi l cases by the failure to make timely assertion of the right.” Michel v. Louisiana , 350 U.S. 91, 99, 76 S.Ct. 158, 163 (1955) (citation omitted). A petitioner must b e held to reasonable diligence in making application for relief and such application shou ld be made within a reasonable or justifiable time. White , No. 1101. When a prisoner has available information and facts to present an appl ication for relief and fails to do so, a later application is indicati

ve of bad faith and should be denied. White , No. 1101.

For the reasons express ed in this opinion, the tri al court’s dismissal o f the appellant’s application for w rit of habeas corpus is affirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

________________________________ JOHN H. PEAY, Judge

________________________________ JOSEPH M. TIPT ON, Judge