            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                          JUNE SESSION, 1998           FILED
                                                    September 10, 1998

                                                  Cecil W. Crowson
TOMMY JOE WALKER,              )
                                                Appellate Court Clerk
                               )   No. 01C01-9707-CR-00297
      Appellant                )
                               )   DAVIDSON COUNTY
vs.                            )
                               )   Hon. Walter C. Kurtz, Judge
STATE OF TENNESSEE,            )
Ex Rel, Donal Campbell,        )   (Writ of Habeas Corpus)
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 Reporter

Paula R. Voss                      Karen M. Yacuzzo
Asst. Public Defender              Assistant Attorney General
1209 Euclid Avenue                 Criminal Justice Division
Knoxville, TN 37921                425 Fifth Avenue North
                                   2d Floor, Cordell Hull Building
                                   Nashville, TN 37243-0493




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                  OPINION



         The appellant, Tommy Joe Walker, appeals the Davidson County Circuit

Court’s summary dismissal of his application for writ of habeas corpus. Specifically,

the appellant contends that the trial court erred in finding that his 1977 conviction for

voluntary manslaughter was not void. The appellant is currently incarcerated at the

Riverbend Maximum Security Institute in Nashville awaiting 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 to a negotiated plea agreement, the appellant

entered a guilty plea in the Knox County Criminal Court to one count of voluntary

manslaughter committed while on parole.1 The judgment form entered in

conformance with the plea agreement 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 less than
           4 years nor more than 4 years, from the date of his conviction;
         that        be rendered infamous, as provided 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 ATTACHED 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 further 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 beginning 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, further,
         however that the judgment in this case shall not limit the authority or
         discretion of the Parole Board granted by T.C.A. 40-3620, with respect
         to the defendant’s prior cases in which he has been paroled and

         1
          This conviction for voluntary manslaughter, which involved a crime of violence to the
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
        charged with parole violation; that is, the concurrency aspect of this
        sentence is subject to limitation by the Parole Board in its revocation
        proceedings. . . .


(emphasis added).


        On April 3, 1997, the appellant filed an application for writ of habeas corpus

alleging that the 1977 judgment entered against him is void because his “plea of

guilt was premised upon the promise of a concurrent sentence,” which the trial court

had no authority to impose.2 The trial court dismissed the appellant’s application

finding that the appellant’s claim did not constitute a valid claim for habeas relief

because the judgment, from its face, was not void. The appellant, in contesting the

decision of the trial court, asserts that the 1977 judgment form reflects that the

appellant’s sentence was to be served concurrently with two outstanding sentences

for which he was on parole at the time of the present offense. Relying exclusively

upon Henderson v. State ex rel. Lance, 419 S.W.2d 176 (Tenn. 1967),3 he argues

that this judgment, which is contrary to the statutory mandate of the existing 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 concurrent 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 rendered’ that a convicting court was without
        jurisdiction or authority to sentence a defendant, or that a defendant’s
        sentence of imprisonment or other restraint has expired.




        2
          In essence, the appellant attacks the voluntariness of his guilty plea based upon the
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 allegation that the promise of concurrent sentences induced
his guilty plea is extrinsic evidence.

        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. Subsequently, the paroled defendant entered into an agreement
where he would plead guilty to simple robbery, the maximum sentence would be five years, and
the sen tence w ould be s erved c oncurr ently with the se ntence being se rved on parole. Id. The
same statute requiring consecutive sentences was in effect at that time and the court’s judgment
was contrary to the statutory mandate. The supreme court held that the defendant’s application
for a writ of h abeas corpus was pro per. Id. at 179. The court held that the defendant was entitled
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
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (emphasis added). Because the

record reflects that the judgment of conviction is not void on its face and that the trial

court was clearly vested with jurisdiction to impose the resulting sentence, the

remedy of habeas corpus is not available to the appellant in this case.



       Although we concede the principle of law established by Henderson, the case

presently before this court is distinguishable from the facts before the court in

Henderson. We are unable to discern from the opinion in Henderson whether the

trial court was aware of the defendant’s paroled status, or if such information

appeared on the judgment. See, Bergdorf v. State, No. 01C01-9508-CC-00279

(Tenn. Crim. App. at Nashville, Oct. 8, 1996). In the case before us, there is no

indication that the trial court was aware of the Board of Parole’s determination, in

fact, the judgment is expressly conditioned upon the Board’s future action. From the

record before us, we cannot be certain that the sentences are 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 sentence is not definite, but

is subject to the determination of the Board of Paroles. As conferred by our

Legislature, only the Board of Pardons and Paroles has the authority to revoke a

parolee from a paroled sentence and determine what portion of the paroled

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 record on appeal whether the appellant was



       4
        Specifically, Tenn. Code Ann. § 40-3620 provides:
       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 serve the remainder of his sentence,
       under which he was paroled, or such part of that 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 laws of another state government or country which, if committed
       within this state, would be a felony, and if he shall be convicted of such a crime,
       the director of the decision of probation and paroles shall return such a prisoner
       through the terms of the interstate compact. The board shall require that he
       serve the portion remaining of his maximum term of sentence or such part as the
       board may determine. The board at its discretion, may recommend to the
       commissioner of correction, the removal of all or any part thereof of the good and
       honor time and incentive time accrued on the sentence under which he was
       paroled.

       (Empha sis added).

                                                    4
ever revoked from his paroled sentences, and, if he was revoked, as to which part of

the paroled sentences he was required to serve.5 Additionally, the appellant has

presented no evidence to support his allegation that his sentences were, indeed,

served consecutively. Thus, it is not clear on its face that the judgment is void.

Rather, the judgment merely indicates that the judgment is voidable. Accordingly,

the trial court did not err by summarily dismissing the appellant’s application.6



         Additionally, although we acknowledge that our supreme court has rejected

the doctrine of laches to applications for habeas corpus relief, see, e.g., Wills v.

State, 859 S.W.2d 308, 310 (Tenn. 1993) (refusing to apply doctrine of laches in

post-conviction setting); 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 equitable 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. BLACK’S LAW DICTIONARY 875 (6th ed. 1990). “It is defined as neglect to

assert a right or claim which, taken together with lapse of time and other

circumstances causing prejudice to adverse party, operates as a bar in a court of

equity.” Id. This doctrine could properly be applied to habeas corpus proceedings

         5
         We note that the appellant has failed to provide a complete record on which to base our
review. Specifically, a transcript of the guilty plea hearing is not provided nor is any indication as
to the manner in which the appellant’s 1977 sentence for manslaughter was served. Thus, other
than the question of law currently before this court we have no evidence that the appellant 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 application for the issuance of a writ of habeas corpus may be summarily dismissed
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 (1980 and
Supp.1 996).


         7
           See Ex parte Patterson, No. 72,866 (Tex. Crim . App. June 10, 1998)( for publication)
(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. denied, 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. dismissed, 516
U.S. 10 20, 116 S .Ct. 593 (1 995); Flute v. Class, 559 N.W .2d 554 ( S.D. 19 97)).

                                                     5
when the delay in bringing a claim for collateral relief has been unreasonable and

unjustified and the State has been prejudiced 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 eventually become final, an inmate must not be permitted

to engage in inordinate delays 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 litigation of stale or fraudulent claims. Wills, 859 S.W.2d at 312

(O’Brien, J. concurring in part and dissenting in part) (quoting Burford v. State, 845

S.W.2d 204, 208 (Tenn. 1992)).



       In 1977, after being indicted for murder, the appellant pled guilty to voluntary

manslaughter and received the benefits of a negotiated four year sentence. This

sentence was served by the appellant without objection. Following expiration of this

sentence, whether served either consecutive or concurrent to a parole violation, the

appellant was released from confinement. Now, twenty-two years later, he

challenges his conviction based upon an error in sentencing which has already been

served. Although he seeks 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. Duckworth, 969 F.2d 363,365

(7th Cir. 1992). Because the remedy sought today was equally available by means

of post-conviction relief twenty-two years ago, we can only assume that it was the

appellant’s decision to forgo any challenge during incarceration and avoid risking a

conviction for murder.




                                          6
       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 procedural principle is more familiar to this Court than

that a constitutional right may be forfeited in criminal as well as civil 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 be held to reasonable

diligence in making application for relief and such application should be made within

a reasonable or justifiable time. White, No. 1101. When a prisoner has available

information and facts to present an application for relief and fails to do so, a later

application is indicative of bad faith and should be denied. White, No. 1101.



       For the reasons expressed in this opinion, the trial court’s dismissal of the

appellant’s application for writ of habeas corpus is affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge


CONCUR:




________________________________
JOHN H. PEAY, Judge



________________________________
JOSEPH M. TIPTON, Judge




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