             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE                  FILED
                                JUNE 1997 SESSION
                                                               November 3, 1997

                                                               Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
GARY WAYNE LOWE,                  )
                                  )
             Appellant,           )    No. 03C01-9702-CC-00049
                                  )
                                  )     Anderson County
v.                                )
                                  )     Honorable James B. Scott, Jr., Judge
                                  )
STATE OF TENNESSEE,               )     (Post-Conviction)
                                  )
             Appellee.            )


For the Appellant:                     For the Appellee:

Douglas A. Trant                       John Knox Walkup
900 S. Gay Street, Suite 1502          Attorney General of Tennessee
Knoxville, TN 37902                           and
                                       Timothy F. Behan
                                       Assistant Attorney General of Tennessee
                                       450 James Robertson Parkway
                                       Nashville, TN 37243-0493

                                       James N. Ramsey
                                       District Attorney General
                                               and
                                       Jan Hicks
                                       Assistant District Attorney General
                                       127 Anderson County Courthouse
                                       Clinton, TN 37716




OPINION FILED:____________________


REVERSED AND REMANDED

Joseph M. Tipton
Judge
                                       OPINION



              The petitioner, Gary Wayne Lowe, appeals as of right from the Anderson

County Criminal Court’s dismissal of his post-conviction case. The trial court summarily

dismissed the petition, concluding that principles of “res judicata” barred the petitioner

from challenging the validity of his guilty plea for grand larceny. The court based its

decision on the supreme court’s dismissal of a prior post-conviction petition, in which

the petitioner challenged his habitual offender status based, in part, on the invalidity of

the grand larceny conviction. The sole issue for our review is whether the trial court

erred by summarily dismissing the petition. Because we conclude that the petitioner is

entitled to an evidentiary hearing, we reverse the judgment of the trial court.



              The defendant was convicted of automobile burglary and found to be an

habitual criminal, receiving a life sentence. This court affirmed his conviction, State v.

Gary Wayne Lowe, No. 100, Anderson County (Tenn. Crim. App. Dec. 18, 1981), app.

denied (Tenn. Apr. 19, 1982), and also affirmed the denial of his first petition for post-

conviction relief challenging his burglary conviction and habitual criminal sentence.

Gary Wayne Lowe v. State, No. 139, Anderson County (Tenn. Crim. App. Apr. 10,

1985).



              On August 26, 1987, the petitioner filed a second post-conviction petition

alleging that an unconstitutional jury instruction was given during the habitual criminal

phase of his trial and that his habitual criminal sentence was invalid because his prior

grand larceny conviction was void because of an unconstitutional guilty plea. With

respect to the guilty plea, the petitioner alleged that he was not advised of his right

against self-incrimination and he was not warned that the conviction could be used to

enhance his punishment for future convictions. The trial court summarily dismissed the

petition as being barred by the applicable statute of limitations. This court reversed the



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dismissal, holding that the petition was not barred by the statute of limitations and that

the petitioner was entitled to an evidentiary hearing on the jury instruction claim and on

the validity of the guilty plea for his underlying conviction. State v. Gary Wayne Lowe,

C.C.A. No. 192, Anderson County (Tenn. Crim. App. Apr. 12, 1989).



              The state sought supreme court review of this court’s remand of the

petitioner’s second post-conviction case, raising two issues: (1) whether this court erred

in holding that the jury instruction in the habitual criminal phase of petitioner’s trial

impermissibly shifted the burden of proof to the petitioner and (2) whether this court

erred in holding that the petitioner was entitled to an evidentiary hearing and

appointment of counsel on his second post-conviction petition. The supreme court

granted the state’s application with respect to the first issue, but denied review on the

second issue. The order states:

                      The State of Tennessee has filed a Rule 11 Application
              for Permission to Appeal in this cause. As to Issue II, a similar
              issue was raised in State v. Prince & McDowell, released
              December 4, 1989, at Jackson. Upon consideration of Issue
              II in the State’s Application, we are of the opinion that it is
              controlled by State v. Prince & McDowell, and the Court of
              Criminal Appeals was correct in its remand.

                     As to Issue I, whether the jury instruction in the habitual
              criminal phase of the Petitioner’s trial impermissibly shifted the
              burden of proof to the Petitioner, it appears that there is a split
              of opinion among the panels of the Court of Criminal Appeals
              and we, therefore, grant the State’s Rule 11 application as to
              Issue I.

The supreme court eventually reversed this court’s remand on the jury instruction issue

and dismissed the petition for failure to state a claim. Lowe v. State, 805 S.W.2d 368,

372 (Tenn. 1991).



              While his second post-conviction case was pending, the petitioner filed a

petition for post-conviction relief in 1988 in which he challenged the validity of his guilty

plea for the same grand larceny conviction that was used to prove his habitual criminal

status. He alleged that the plea was invalid because he was not advised of his right


                                               3
against compulsory self-incrimination nor warned that the conviction could be used to

enhance a future sentence. The state moved to dismiss the petition because it raised

an issue that was pending in this court in the petitioner’s second post-conviction

petition. The petitioner responded to the state’s motion to dismiss, but no further action

was taken in the case until the petitioner filed an “Amended Petition and Motion for

Evidentiary Hearing.”



               The trial court dismissed the petition, holding that the petitioner was

barred from collaterally challenging the prior guilty plea based upon the supreme court’s

dismissal of his second petition. The court reasoned that the supreme court’s dismissal

of the petitioner’s second petition for post-conviction relief for failure to state a claim

barred the petitioner under the doctrine of res judicata from relitigating the validity of his

guilty plea, an issue raised in the second petition. Essentially, this means that the trial

court found that the ground for relief had been previously determined. See T.C.A. § 40-

30-112 (repealed 1995).



               The petitioner contends that under this court’s opinion and order in his

second post-conviction case, he is entitled to an evidentiary hearing on the validity of

the guilty plea that resulted in the grand larceny conviction. He correctly asserts that

the supreme court denied review of the issue and explicitly agreed with this court’s

decision remanding the case for a hearing on the issue. The petitioner argues that

because the guilty plea issue was not before the supreme court when it decided the jury

instruction issue, the supreme court’s opinion did not alter his right to have a hearing on

the validity of the prior guilty plea.



               The state counters that the petitioner is not entitled to an evidentiary

hearing on whether the underlying guilty plea was constitutional because the supreme




                                               4
court dismissed the petition. In support, the state cites the following language from the

supreme court’s opinion in the petitioner’s second post-conviction case:

                    The final question is whether Lowe is entitled to post-
              conviction relief on the basis of this constitutional error. . . .

                     . . . After close study of the record, however, we
              conclude that the petitioner is so clearly not entitled to relief,
              despite the constitutional error committed at trial, that remand
              would amount to futility.

                     ....

                     . . . Lowe has effectively admitted that he has the
              requisite number of prior convictions to sustain his current
              conviction as a recidivist . . . .

                      In summary, although we agree with the conclusion
              reached by the Court of Criminal Appeals on the substantive
              question of constitutional law raised on appeal, we disagree
              with that court’s decision to grant the petitioner an evidentiary
              hearing. The judgment of the Court of Criminal Appeals
              remanding the case to the trial court is therefore reversed, and
              the petition is dismissed for failure to state a claim upon which
              relief may be granted.

Lowe, 805 S.W.2d at 372. The state also argues that the defendant is not entitled to a

hearing on whether his prior guilty plea was unconstitutional because such a finding

would have no effect on his habitual criminal status.



              We believe that State v. Prince, 781 S.W.2d 846 (Tenn. 1989), is central

to disposition of the issue raised in this case. In Prince, our supreme court held that a

petitioner cannot collaterally attack prior convictions that support an habitual criminal

status through a post-conviction petition that seeks to invalidate the habitual criminal

sentence. 781 S.W.2d at 851. The court stated that pending post-conviction

proceedings involving attacks on habitual criminal sentences based upon the invalidity

of prior guilty plea convictions should be stayed in order for petitioners to have the

opportunity to file petitions challenging the underlying convictions. Id. at 852.



              The petitioner’s second petition for post-conviction relief raised the issue

of an invalid conviction in the context of an attack on his habitual offender status, the


                                              5
exact procedure prohibited in Prince. This means that the petition related only to the

habitual criminal case and could not be used as a means to resolve a claim that

another conviction was invalid. As a result, the ultimate dismissal of the second petition

by the supreme court would only be a ruling in the habitual criminal case, not relating to

any prior conviction. Thus, the dismissal did not operate as a previous determination of

the validity of the grand larceny conviction.



                  In the present case, the petitioner filed a separate petition that

independently challenges the validity of the grand larceny conviction.1 This petition

constitutes the proper way to attack the prior conviction under the holding in Prince.

Whether it affects the habitual criminal status is irrelevant at this point. Under these

circumstances, the petitioner was entitled to an evidentiary hearing on the merits of his

claim that his grand larceny conviction should be vacated. Accordingly, we reverse the

trial court’s judgment and remand the case for further hearing on the validity of the

grand larceny conviction.




                                                                           Joseph M. Tipton, Judge


CONCUR:



John H. Peay, Judge



Curwood Witt, Judge




                 1
                   W e not e tha t the p etition er am end ed th e pre sen t petitio n to inc lude a challe nge to his
habitual criminal sentence, as well as the prior conviction. We caution counsel to adhere to the
procedures provided in Prince.

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