# FILED
September 30, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE JAN UA RY SESSION , 1997
STA TE OF TENN ESSEE, ) C.C.A . NO. 01C01-9 604-CC-00167 ) Appellee, ) ) ) FRANKLIN COUNTY VS. ) ) HON. BUDDY D. PERRY MICHA EL A . BA SKETTE, ) JUDGE ) Appellant. ) (Direct Appeal-Driv ing on Revoked

) License)

FOR THE APPELLANT : FOR THE APPELLEE : PHILIP A. CONDRA JOHN KNOX WALK UP Distric t Public Defender Attorney Gen eral and Repor ter 12th Judicial District P. O. Box 220 M. ALLISON THO MPSON Jasper, TN 37347 Counsel for the St ate 450 James Roberts on Parkway Nashvil le, TN 37243-0493 J. MICHAEL TAYLOR Distric t Attorney General W ILLIAM COPELAND Assistant D istrict A

ttorney 1 South Jefferson Street Winchester, TN 37398

OPINION FILE D ________________________ AFFIRMED JERRY L. SMITH, JUDG E-2- 

## OPINION

A Franklin County Ci rcuit Cour t jury convicted Appe llant Mic heal B. Baskette of driving on a revoked license. As the result of two prior convicti ons in Dav idson County for dr iving on a revoked license, Appel lant was s ubsequently convicted in a bench trial for

drivin g on a revoked license t hird offense. Appell ant was sent enced to six ty days i n the c ounty

jail and a fi ne impo sed. I n thisappeal , Appel lant c laims that his conviction for driving on a revoked license third off ense was improperly based upon a prior

guilty plea in w hich there was no effective waiver of couns el. For the reasons set

forth, the judg ment of the trial court is affirmed.

I. FACTUA L BACKGROUND On April 22, 1994, Appellant was stopped at a roadblock on Highway 127 in Franklin C ounty, Tennessee. When approached by a Tennessee Hi ghway Patrol officer, Appellant r

eportedly a ppeared to be intox icated. The officer instruc ted Appellant to pull his car into a parking lot. Appellan t was then given a series of field sobriety tests by t he officer. As a result of these test s, Appellant w as arrested an d charged w ith DUI. When the officer checke d Appellant’s identification i nformation the check revealed that Appellan t’s driver’s license was revoked; subsequently Appellant was charged w ith driv ing on a rev oked license. Appellant was indicted by the Grand Jur

y of Frankl in County in a four count indictment, w hich charg ed Appellant w ith driv ing under theinfluence, dri ving under the influence, thi rd offense, driv ing on a canc eled, suspended, or revoked l icense, and drivi ng on a cancel ed, suspended, or revoked l icense, thir d offense. At trial on these charges , the jury returned a verdict of not g uilty on t he count involving drivin g under the influence and guilty on the count inv

olving drivin g on a cancel ed, suspended or rev

oked license. The fourth count of driv ing on a canc eled, suspended or rev

oked license t hird offense was tried by the judge. D uring the-3-

bench trial, Appellant pointe d out to the judge that the waiver of attorne y which appeared on the rev

erse side of the dr iving on a revoked license ci tation dated February 18, 1991 seemed irr egular, bec ause it did not list any of the procedural safeguards that a ccompany a constitutional waiver. The j udge agreed as to the irregul ar appearance of the w aiver, but

stated that the court in w hich the matter was heard would have a rec ord of that proceedi ng. Appellan t was found g uilty of dr iving on a revoked license thir d offense.

II. A TTA CK UPON A N UNDERLYING CON VICTION Appellant all eges that the t rial court erred in relying on the Februar y 1991 guilty plea whic h does not affirmatively establ ish on the face of the pl ea that the statutory and constituti onal protecti ons required for an effective pl ea were ever undertaken. Appellan t argues that because the record do es not establish a valid waiver of the Appellant’s

right to counsel at the pl ea proceeding in February 1991, this Court should reverse and dismi ss his conv iction for dri ving on a revoked l icense, third offense. In State v. Prince , 781 S.W.2d 846, the Supreme Court add ressed this issue in holding that a defendant must col laterally attack any infirm underly ing conv ictions before a he can atta ck a subsequent conviction based on tho se prior convictions. [I]t is incumbent upo n a defendant to establi sh the inval idity of prior guilty pleas before he can procedurally launch a coll ateral attack in a subseq uent habitual c riminal sent ence on that basis. If he has not prev iously don e so it must be established at an appropriate hea r ing for that pur pose that he has not knowingly

and under st andingly

waived any gr

ounds he may have which would undermine the validity of a prior gui lty plea. The fact cannot be established on a silent r ecord. Boykin , 395 U.S.[238,] at 242, 89 S.Ct. [1709,] at 1712 . The pe tition must be filed in the co urt where the earlier conviction took place to attack the c onst itut iona l va lidit y of the prior convicti on. A defendant successful in such a proceeding ma y then expose t he enhanced sentence on the subsequent conviction to a collateral attack as well.-4-

State v. Prince , 781 S.W.2d 846, 852 (Tenn. 1989).
Just as the under lying convicti ons in Prince were facial ly val id, the February 1991 convict ion Appellant s eeks to chall enge is facial ly val id. The Appellant’s s ignature does indeed appear under

the waiver of counsel por tion of the document. Therefore, it is facial ly val id. See State v.McClintock , 732 S.W.2d 268 (Tenn. 1987); State v. Cottrell , 868 S.W.2d 673 (Tenn. Crim. App. 1992). This Cou rt is unable to determine the mer it of his alle gation reg arding the 1991 guilty

plea upon this record. The appr opriate route for overtur ning a pri or convicti on as a result

of an invali d waiver of the rig ht to counsel i s to file a postconviction proceeding within the statute of limita tions. Because Appellant

has failed to follo w the proc edure set out by the Tennessee Supreme Cour t in State v. Prince , the judgment of the trial court is affirmed.

_________________________________ JER RY L

. SMI TH, JUD GE

CONCUR:

___________________________________ JOHN H. PEAY , JUD GE

___________________________________ JOE G. RI LEY , JUD GE