         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE           FILED
                      JANUARY, 1998 SESSION
                                                     March 23, 1998

                                                 Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk

TERRY T. LAMM,             )    No. 03C01-9702-CC-00073
                           )
      Appellant,           )
                           )    Blount County
vs.                        )
                           )    Honorable D. Kelly Thomas, Jr., Judge
                           )
STATE OF TENNESSEE,        )
                           )    (Post-Conviction)
      Appellee             )



FOR THE APPELLANT:              FOR THE APPELLEE:

KEVIN SHEPHERD                  JOHN KNOX WALKUP
404 Ellis Ave.                  Attorney General & Reporter
Maryville, TN 37804
                                MICHAEL J. FAHEY, II
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                MICHAEL L. FLYNN
                                District Attorney General

                                PHILIP MORTON
                                Assistant District Attorney General
                                363 Court St.
                                Maryville, TN 37804




OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE
                                       OPINION



               The petitioner, Terry T. Lamm, appeals pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure from the Blount County Circuit Court’s

denial of post-conviction relief. In 1994, a jury found the petitioner guilty of leaving

the scene of an accident, and the trial judge sentenced him to eleven months and

twenty-nine days with sixteen days to be served 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. Crim. App., Knoxville, October 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 jurisdiction. The capias was never 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 attorney.2 Defense counsel timely filed a petition for post-conviction relief

alleging ineffective assistance of counsel in November, 1995. Attached to the

petition was the affidavit of Donald Wes Dodson.              Dodson, who was then

incarcerated in Florida, admitted that he was driving Lamm’s vehicle when the

accident occurred and that he was the person who drove away from the scene.

According to the affidavit, Lamm was not in the vehicle at the time of the accident.

On June 26, 1996, the petitioner filed an affidavit in which he waived the right to

appear at his post-conviction hearing. The trial court held a hearing on October 11,

1996. When the petitioner failed to appear, the trial judge, finding that it was neither

reasonable nor appropriate to hear the petition without the petitioner present,


       1
      The petitioner did not file an application 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 over the case and was Lamm’s defense attorney at trial and
on direct appeal. Apparently, Lamm and his family then hired Mr. Shepherd to
represent him in post-conviction proceedings.

                                            2
refused to hear any testimony.         Although the trial judge did not remain in the

courtroom, he allowed defense counsel to call his witnesses as an offer of proof.3

On October 30, 1996, the trial judge entered the following order dismissing the

petition:

                         This cause came on the court’s docket this date
                 for a hearing for Post Conviction Relief. The Court finds
                 a material issue of fact exists that requires the
                 testimony of the petitioner, i.e., the ineffective
                 assistance of counsel. The petition has been reset and
                 the petitioner has failed to appear, being on the run
                 from the execution of the jail sentence in the underlying
                 case. The petition is dismissed.



Although for different reasons, we affirm the dismissal of Lamm’s petition for post-

conviction relief.



                 In this appeal, the petitioner argues that the voluntary absence of a

convicted misdemeanant from a hearing is not a ground for dismissing a petition for

post-conviction relief. He contends that a petitioner’s presence at the post-

conviction hearing is required by statute only when the petition raises substantial

questions of facts as to events in which the petitioner participated. Tenn. Code

Ann. § 40-30-210(a) (1997).4         In this instance, defense counsel at the post-

conviction hearing represented the petitioner in general sessions court and was able



       3
       Because we find that the petitioner, who had voluntarily absented himself
from the court’s jurisdiction to avoid serving his sentence, had no right to file for
post-conviction relief, we do not summarize the testimony presented at the
hearing.
       4
           This section provides:

                          The petitioner shall appear and give
                        testimony at the evidentiary hearing if
                        such petition raises substantial
                        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
to testify as to the information he had given to the assistant public defender who

assumed responsibility for the case at trial and on direct appeal.         Since the

petitioner was neither present at the accident nor involved in the discussions

between the two attorneys, he argues that his presence was not required by law.

The state, on the other hand, contends that the trial court could not resolve the

issue of ineffective assistance of counsel without the presence of the petitioner and

trial counsel.



                 We find it unnecessary to reach this issue. The true question is

whether a person convicted of a misdemeanor who flees from the jurisdiction and

remains at large is entitled to seek post-conviction relief. We found no Tennessee

case precisely on point. However, after reviewing well-established principles of

Tennessee law as they pertain to convicted felons, we conclude that persons who

are convicted of any crime, felony or misdemeanor, 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 authorities.



                 Tennessee courts have consistently applied the reasoning first

adopted in Bradford v. State, 184 Tenn. 694, 202 S.W.2d 647 (1947). In Bradford,

after a jury convicted the defendant of manslaughter, defense counsel filed a motion

for new trial. On the day the motion was set for hearing, the defendant was not

present and 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 supreme

court affirmed the trial court’s dismissal of the motion for new trial. The court

reasoned that the situation was analogous to that where a convict escapes from

custody while an appeal is pending. Bradford, 184 Tenn. at 696-97, 202 S.W.2d at

648. The general rule in those cases is that when a defendant becomes a fugitive

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, on



                                          4
the ground that he has thereby waived 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 dismissing an appeal

when the appellant had escaped were equally applicable to those on bond who fled

after a motion for new trial had been filed. A motion for new trial, like an appeal,

is not a prosecution brought by 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 reasoned that

                      [i]f a trial court should overrule the motion for a
              new trial, its order and judgment based thereon may
              never be enforced because the defendant by escaping
              has placed himself beyond the control of the court. He
              cannot be made to respond to any judgment which may
              be rendered in the case, assuming it could be rendered
              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 consent” of the
              defendant.

Bradford, 184 Tenn. at 698, 202 S.W.2d at 648-649. Therefore, our supreme court

concluded that “the defendant by his own act has waived the right to have his

motion for a new trial considered and determined. His conduct was in legal effect

an abandonment of the prosecution 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, 229 S.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 considered the applicability of this rule to

post-conviction cases. In Brown v. State, the defendant fled after filing a motion for


                                          5
new trial. Brown 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 direct appeal had expired, and when he filed

a post-conviction petition, the trial court held that he had waived his right not only

to a new trial motion and a direct appeal but also any right to a delayed appeal or

relief under post-conviction procedure. Id.



              The Tennessee Supreme Court, however, 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 himself beyond the control of the

court waives the right to be heard, and that a court is not required to give its time to

proceedings when their effectiveness requires the consent of an absent defendant.

Id. at 162. On the other hand, in those cases where the post-conviction petition is

filed after the escaped prisoner has returned to custody, the defendant is entitled

to have the petition considered on its merits. French, 824 S.W.2d at 163 (citations

omitted). However, the court also held that “a post-conviction 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 provisions of the Post-Conviction

Procedure Act.” Id. (emphasis added). This court followed the holding of French

in Anderson v. State where it found that post-conviction procedure is available to

those who have been returned to custody although a delayed appeal is 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 clearly requires that a petitioner who has

escaped must return to custody before a post-conviction proceeding becomes

available. The petitioner attempts to distinguish his situation in this case from those




                                           6
in prior cases. He contends that since he is neither on escape status nor a

convicted felon he is entitled to pursue a post-conviction petition in absentia. We

disagree.5



              Petitioner is correct when he states that he has not escaped from

custody. When this court affirmed 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

who absconded while on bail. Neither Tom Bradford nor George French were

“escaped” convicts.     Bradford jumped bail after filing a motion for new trial.

Bradford, 184 Tenn. at 695, 202 S.W.2d at 647. French absconded shortly before

the jury returned its guilty verdict. French, 824 S.W.2d at 162. The fact that they did

not “escape” from custody was in no way determinative of the results. See also

Mayes v. State, 671 S.W.2d 857 (Tenn. Crim. App. 1984) (defendant fled after

motion for new trial); Calvin Shazel v. State, No. 03C01-9508-CC-00232 (Tenn.

Crim. App., Knoxville, Nov. 20, 1996), state’s perm. app. granted (Tenn. 1997)

(defendant fled after counsel filed a motion to withdraw his guilty plea); State v.

Gary S. Mayes, No. 1201 (Tenn. Crim. App., Knoxville, Apr. 14, 1989) (appellant

fled while motion for new trial was pending); Fred Harlan Armes v. State, No.161

(Tenn. Crim. App. Knoxville, Jan. 26, 1988) (defendant fled upon bond revocation).

In each case, the determinative factor is whether the defendant was in custody at

the time the court considered the defendant’s motion or post-conviction 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; Fred




       5
        We also disagree with the state’s contention that Lamm is “in custody” of
the State of Tennessee for the purposes of the Post-Conviction Act. Tennessee
Code Annotated section 40-30-202 allows “a person in custody under a sentence
of a court of this state” to petition for post-conviction relief within a specified time
limit. Although the phrase “in custody,” has been interpreted to include those
who suffer from any possibility of restraint on liberty, see, e.g., Albert v. State,
813 S.W.2d 426 (Tenn. 1991); State v. McCraw, 551 S.W.2d 692 (Tenn. 1977),
we do not believe that either 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
Harlan Armes, slip op. at 5. Clearly, the rule of French is not limited to those who

“escape” from custody. The specific facts surrounding this petitioner’s voluntary

flight have no effect on the availability of post-conviction relief. If a petitioner is a

fugitive at the time of the hearing, the petition for post-conviction relief 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 rule.            The reasoning of Bradford as

reaffirmed in French applies to misdemeanants as well as felons. One convicted

of a crime who places himself beyond the control of a court waives the right 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, a court should not be required to give its time to proceedings that

may well be ineffective due to the absence of the petitioner. The fact that the

petitioner in this instance was convicted of a misdemeanor rather than a felony is

a distinction without a difference.



              The petitioner in this case voluntarily absented himself from the court’s

jurisdiction to avoid serving his sentence. He was at large at the time of his post-

conviction hearing, and he remains a fugitive today so far as this court can discern.

Under these circumstances, he is not entitled to seek post-conviction relief. The

trial court correctly dismissed Lamm’s petition. The judgment is affirmed.




                                                   __________________________
                                                   CURWOOD W ITT, Judge
CONCUR:



                                           8
______________________________
GARY R. WADE, Judge



______________________________
JOSEPH M. TIPTON, Judge




                                 9
