         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    March 18, 2003 Session

              ROGER L. HICKMAN v. STATE OF TENNESSEE
                   Direct Appeal from the Criminal Court for Knox County
                             No. 74318    Ray L. Jenkins, Judge



                                  No. E2002-01916-CCA-R3-PC
                                       December 18, 2003


JOHN EVERETT WILLIAMS, J., dissenting.

        I differ with the majority opinion in two major areas. First, the majority finds it unnecessary
to reach the question of whether a judgment of conviction that is silent as to whether a defendant had
counsel or waived his right to counsel is voidable or void. For reasons hereafter contained, I
conclude such a judgment of conviction is facially invalid or void.

       Second, the majority does not accept that the use of a prior conviction to enhance subsequent
punishment acts as a “restraint on liberty.” The majority construes the statutory language
“imprisoned or restrained of his liberty, under any pretense whatsoever” to require actual or
constructive confinement in a prison or jail. I disagree.

        My reading of the case law convinces me that the Post-Conviction Procedure Act is the
authorized route for attacking a facially valid final judgment. It is equally clear to me that only
facially invalid judgments are subject to collateral attack by writ of habeas corpus. It would appear
important to first determine if the habeas corpus petition sets out a claim that the judgment of
conviction is facially valid and, therefore, voidable or the judgment of conviction is facially invalid
or void.

       As the majority opinion correctly states, the instant judgment of conviction resulted from an
uncounseled guilty plea and no waiver of his right to counsel appeared upon the General Sessions
judgment. I conclude that even though this misdemeanor conviction carried only a suspended
sentence, it is void unless counseled or counsel is waived and such appears upon the judgment of
conviction or the record. Alabama v. Shelton, 535 U.S. 654, 122 S. Ct. 1764, 152 L. Ed. 2d 888
(2002); State v. McClintock, 732 S.W.2d 268, 273 (Tenn. 1987); State v. Tansil, 72 S.W.3d 665, 667
(Tenn. Crim. App. 2001).

         In McClintock, our supreme court recognized that the authorized route for attacking a facially
valid, final judgment of conviction is by the Post-Conviction Procedure Act. 732 S.W.2d at 272.
The instant case, however, deals with a “facially invalid” judgment of conviction for want of
counsel or waiver of counsel. In this regard, the supreme court stated in McClintock:

       In [Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980)]the
       record affirmatively revealed that the defendant had neither been represented by
       counsel nor waived his right to counsel. 100 S. Ct. at 1585. Such a conviction is
       void on its face for the purposes of recidivist provisions upon subsequent
       convictions. As Justice Marshall stated in his concurring opinion:

               “An uncounseled conviction does not become more reliable merely
               because the accused has been validly convicted of a subsequent
               offense. For this reason, a conviction which is invalid for purposes
               of imposing a sentence of imprisonment for the offense itself remains
               invalid for purposes of increasing a term of imprisonment for a
               subsequent conviction under a repeat offender statute.”

732 S.W.2d at 273 (quoting Baldasar, 100 S. Ct. at 1588).

        I fail to see how a judgment of conviction so deprived of minimum constitutional protection
as to be apparent on its face as void, miraculously heals itself of such serious infirmities with the
passage of time.

        I acknowledge that Tennessee may be unique in this area, but I feel that McClintock requires
that the judgment of conviction contain a notation of counsel or waiver of counsel. The supreme
court in McClintock stated:

       In particular, General Sessions Courts are required by the Rules of Criminal
       Procedure to preserve a sufficient record of their proceedings in criminal cases to
       permit effective review.

               Furthermore, T.C.A. § 8-14-107 explicitly prohibits entry of a guilty plea
       unless the right to counsel has been waived and the waiver reduced to writing. See
       also Rules 5 and 44, T.R.Cr.P. Every court is required to make adequate personal
       inquiry of defendants to assure the validity of all necessary waivers. This is not only
       required by the Constitutions of this State and the United States but is imposed upon
       courts by numerous statutory provisions and rules of procedure. See, e.g., T.C.A. §§
       8-14-106, 40-14-102, 40-14-103, 40-14-202; Rules 5, 11, and 44, T.R.Cr.P. Not only
       does Rule 1, T.R.Cr.P., distinctly ennumerate when those rules govern procedures in
       General Sessions Courts and impose the requirements of the rules on those courts as
       rigorously as on other courts exercising criminal jurisdiction, but Rule 54(a),
       T.R.Cr.P., reiterates that “[t]hese rules apply to all criminal proceedings in all courts
       of record . . . . They shall apply in General Sessions Courts . . . to the extent
       specified in Rule 1 or when the context clearly so indicates . . . .”


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732 S.W.2d 268 at 273.

         The majority’s bright line rule of requiring actual or constructive confinement is beguiling
in its simplicity. No habeas corpus is allowed after a sentence has expired. If the majority is correct,
then the next time we review a petition for habeas corpus, we should first see whether it was filed
after the sentence has expired and, if so, deny relief or convert it to a petition for post-conviction
relief which has a one-year statute of limitations. Ray v. State, 489 S.W.2d 849 (Tenn. Crim. App.
1972). The majority, as noted earlier, makes no distinction on whether the judgment is facially valid
or facially invalid.

        The majority, I feel, too narrowly construes the language “imprisoned or restrained of his
liberty” to require actual or constructive confinement in a prison or jail. This ignores the many
aspects a conviction has on a person’s liberty. Long after the threat of confinement, a conviction
may affect a defendant’s liberty; for example, the right to vote, the right of gun ownership, placement
on the sex registry, and enhancement of punishment in subsequent convictions. This Court
recognized in Church v. State, 987 S.W.2d 855 (Tenn. Crim. App. 1998), that an out-of-state person
may seek habeas corpus relief in Tennessee from a Tennessee conviction, even though not a prisoner
in Tennessee. This Court went on to recognize the effects a judgment of conviction may have on
a person long after confinement, when it stated:

        We believe that an out-of-state person may seek habeas corpus relief in Tennessee
        from a Tennessee conviction even though not a prisoner in Tennessee. Any person
        imprisoned or restrained of his liberty, under any pretense whatsoever, except, [those
        held under Federal authority], may prosecute a writ of habeas corpus to inquire into
        the cause of such imprisonment and restraint.” T.C.A. § 29-21-101. The restraint
        need not involve imprisonment. In State ex rel. Dillehay v. White, 217 Tenn. 524,
        527-28, 398 S.W.2d 737, 738 (1966), our supreme court allowed a habeas corpus
        action to test the legality of an order requiring the indigent petitioner to be placed in
        jail to work out the court costs. Even though the petitioner was not in jail, having
        made bail, the trial court concluded that she was still restricted in her liberty pending
        the appeal. In State v. McCraw, 551 S.W.2d 692, 694 (Tenn. 1997), a post-
        conviction case, our supreme court considered the loss of the right to vote because
        of a felony conviction to be a “restraint on liberty.” It also quoted from United States
        Supreme Court cases relative to federal habeas corpus being allowed so long as any
        collateral legal consequences flow from a conviction, such as, loss of citizenship, the
        enhancement of future criminal punishment, and evidently impeachment of character.
        Id.; see Carafas v. LaVallee, 391 U.S. 234, 237, 88 S. Ct. 1556, 1559, 20 L. Ed. 2d
        554 (1968) and Sibron v. New York, 392 U.S. 40, 57, 88 S. Ct. 1889, 1900, 20 L. Ed.
        2d 917 (1965). Thus, the fact that the petitioner is not physically in custody in
        Tennessee is irrelevant if he is otherwise restrained of his liberty by virtue of his
        Tennessee convictions.

Id. at 857.


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        Our supreme court stated in Potts v. State, 833 S.W.2d 60, 62 n. 15 (Tenn. 1992), that
“[c]hallenges to void convictions and expired terms of imprisonment survive beyond the time
prescribed in § 40-30-102, and the Great Writ cannot be defeated by conversion to post-convictions
proceedings pursuant to § 40-30-108 and subsequent dismissal because of the § 40-30-102 time bar.”
Habeas corpus has no statutory time limitations; even after the post-conviction petition is dismissed
as untimely, the petitioner may assert in a petition for writ of habeas corpus that his conviction is
void or that he is being wrongfully confined beyond his term of imprisonment.

        The majority concludes that the judgment of conviction in the instant case is “presumptively
void.” I call it “facially invalid.” If this is a void judgment, then how may it be attacked, if not by
habeas corpus, and in what period of time must it be filed? Surely not within ten days before the
ramifications are manifested. In balancing the need for finality, that interest should yield when it is
apparent on its face that the judgment of conviction is void. The need for finality should prevail
when balanced with a facially valid judgment. I conclude that the only method of attacking this
defendant’s facially invalid judgment is by habeas corpus and, because that conviction has collateral
legal consequences which act as a restraint on the defendant’s liberty, it is timely filed.

          I agree with the majority that the statutory requirements for filing this petition of habeas
corpus were not met. However, I deem this issue waived by the State because of its failure to raise
it at trial and on appeal.




                                                       ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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