                                                                                            05/12/2017




          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                                      January 4, 2017 Session

                  STATE OF TENNESSEE v. SHAWN P. BRADLEY

                     Appeal from the Circuit Court for Carroll County
                          No. 15CR43 Donald E. Parish, Judge
                        ___________________________________

                               No. W2015-02228-CCA-R3-CD
                           ___________________________________

The Defendant, Shawn P. Bradley, appeals from the Carroll County Circuit Court’s order
declaring him to be a Motor Vehicle Habitual Offender (MVHO). On appeal, the
Defendant argues that the trial court erred in declaring him to be a MVHO because the
judgment forms for the qualifying offenses were facially invalid. Upon review, we
affirm the judgment of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ALAN E. GLENN, JJ., joined.

Benjamin S. Dempsey, Huntingdon, Tennessee, for the Defendant-Appellant, Shawn P.
Bradley.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Matthew F. Stowe, District Attorney General; and Adam Jowers,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                              OPINION

       The Defendant was convicted of driving under the influence on May 6, 20101 and
two counts of driving on a cancelled, suspended, or revoked license on September 3,
2014. On April 8, 2015, the State filed a petition with the Carroll County Circuit Court to
declare the Defendant a MVHO pursuant to Tennessee Code Annotated section 55-10-
601. On the same day the State’s petition was filed, the trial court filed a show cause
order requiring the Defendant to appear and explain “why [the Defendant] should not be
declared a Motor Vehicle Habitual Offender.” On July 1, 2015, the Defendant filed an
answer arguing that the State’s petition was not supported by “three valid triggering
      1
          The judgment form for this conviction was not included in the appellate record.
driving convictions within a three year period,” and that the petition failed to “identify
three facially valid judgments” or a “validly signed waiver of . . . [C]onstitutional rights.”
The Defendant asserted that the State’s petition was barred by the doctrine of “laches”
because the State used his 2010 conviction to declare him a MVHO and waited seven
months after his 2014 conviction to file the petition. The Defendant also argued that the
petition was unconstitutional because it was “void for vagneness [sic] per se” and as
applied to the Defendant.

        On July 30, 2015, the Defendant filed a motion to dismiss the State’s petition,
arguing, inter alia, that the State waited seven months after the third triggering conviction
to file its petition and that this delay was “unnecessary” and substantially prejudiced the
Defendant. He again asserted that the petition was barred by the doctrine of “laches.”
Finally, he noted that if the trial court granted the State’s petition, he could lose his
current employment. Shortly thereafter, the Defendant filed a “Conformed Motion [t]o
Dismiss Supported [b]y Affidavit” raising the same arguments as his first motion to
dismiss. On September 14, 2015, the Defendant filed a subsequent motion to dismiss
alleging that the MVHO Act is unconstitutional, a petition for post-conviction relief, and
an “Amended Answer [t]o Petition [t]o Declare [Defendant MVHO].” However, on
September 21, 2015, the Defendant voluntarily dismissed his petition for post-conviction
relief, which the trial court granted without prejudice.

        According to the record, the trial court conducted a hearing on the Defendant’s
motions to dismiss on October 1, 2015.2 On October 9, 2015, the Defendant filed an
“Affidavit in Opposition to the HMVO Petition” stating that he did not have an attorney
to represent him when he pled guilty in 2014, and that the Assistant District Attorney did
not advise him that those two convictions would be used to declare him a MVHO.3 On
October 16, 2015, the trial court entered two written orders denying the Defendant’s
motions to dismiss and a third order declaring the Defendant to be a MVHO. The trial
court found that the State’s petition was timely and that the doctrine of laches did not bar
the State from filing its petition. Citing State v. Orr, 694 S.W.2d 297 (Tenn. 1985), the
trial court noted that the “criminal provisions of the [MVHO] Act, codified at T.C.A. [§]
50-10-616, . . . have been previously determined to be constitutional” and denied the
Defendant’s motion to dismiss. The trial court also denied the Defendant’s constitutional
challenge on the grounds that “[t]his is a not a criminal prosecution but a civil proceeding
which seeks to merely establish the [Defendant’s] status.” Finally, in the order declaring

        2
            The transcript of this proceeding was not included in the appellate record.
        3
          On October 9, 2015, the parties appeared in open court and the Defendant presented his affidavit
to the court. The record does not contain a transcript of what occurred in open court. In any event, this
affidavit was not considered by the trial court “based upon stipulation of the parties.”

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the Defendant to be a MVHO, the trial court noted that when the parties appeared in court
on October 9, 2015, they stipulated that the Defendant had been convicted of the traffic
offenses alleged in paragraphs one, two, and three of the State’s petition. In declaring the
Defendant to be a MVHO, the trial court reasoned as follows:

       The [c]ourt concludes that the three prior traffic offense convictions as
       alleged by the Petition are facially valid. [The Defendant] signed a waiver
       in each instance which surrendered his right to indictment or presentment,
       right of trial by jury[,] and the right to counsel. The [c]ourt further
       concludes that the convictions are not subject to collateral attack.

       This timely appeal now follows.

                                       ANALYSIS

        On appeal, the Defendant argues that the trial court erred in declaring him to be a
MVHO because the judgments for the underlying convictions, which the State relied on
in its petition, are facially invalid. He claims that they are facially invalid because the
judgments did not show that the Defendant was represented by counsel, or that he was
advised of his rights before entering his guilty plea. He also asserts that the two
convictions on September 3, 2014, should have merged into a single conviction, since
they occurred within a twenty-four hour period, and that the driving on a cancelled
license conviction is not a valid triggering conviction under the MVHO Act. The State
argues that the Defendant has waived his challenge on appeal for failure to prepare an
adequate appellate record. Waiver notwithstanding, the State also argues that the
judgments are facially valid and the Defendant is not entitled to relief. After review of
the record, we agree with the State.

       “The MVHO Act states that a person who is convicted of three or more of certain
enumerated offenses is an habitual offender.” State v. Gregory Scott Parton, Alias
Gregory Scott Partin, No. E2011-02729-CCA-R3-CD, 2013 WL 241933, at *2 (Tenn.
Crim. App. Jan. 23, 2013); see T.C.A. § 55-10-603(2)(A). Driving under the influence
and driving on a cancelled, suspended, or revoked license are such offenses. See T.C.A.
§ 55-10-603(2)(A)(viii), (xv). “When the records of the Department of Safety show that
an individual has accumulated the requisite convictions to be an habitual offender, the
Commissioner of Safety is directed to furnish that record to the district attorney general
for the judicial district where the individual resides or may be found.” Gregory Scott
Parton, 2013 WL 241933, at *2; see T.C.A. § 55-10-605(b). “Upon receipt of the record
of such an individual from the Commissioner of Safety, it is the duty of the district
attorney general to ‘forthwith’ file a petition against the individual to have the individual
declared an habitual offender.” Gregory Scott Parton, 2013 WL 241933, at *2; see
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T.C.A. § 55-10-606(a). “The law also authorizes the district attorney general to file such
a petition if the district attorney general receives ‘appropriate information’ from any
source other than the Commissioner of Safety.” Gregory Scott Parton, 2013 WL 241933,
at *2; see T.C.A. § 55-10-606(b).

       MVHO proceedings “are civil rather than criminal in nature, but appellate
jurisdiction lies with this court by virtue of Tennessee Code Annotated section 55-10-
614.” State v. Joseph R. Bledsoe, No. M2012-01224-CCA-R3-CD, 2013 WL 936296, at
*1 (Tenn. Crim. App. Mar. 11, 2013) (internal citation omitted); see T.C.A. § 55-10-
614(a) (stating that “[t]he defendant may appeal to the court of criminal appeals any final
action or judgment entered under this part, in the same manner and form as appeals in
criminal matters are heard”). “The MVHO proceeding involves revocation of the
privilege of driving, not the deprivation of a property right.” State v. Sneed, 8 S.W.3d
299, 301 (Tenn. Crim. App. 1999) (citing State v. Everhart, 563 S.W.2d 795, 797 (Tenn.
Crim. App. 1978)). Additionally, the defendant may not collaterally attack predicate
convictions during an MVHO proceeding. See Everhart, 563 S.W.2d at 797-98. “Under
these principles, any complaint about the constitutional validity of the predicate
convictions or of the MVHO process must fail.” Sneed, 8 S.W.3d at 301.

        As an initial matter, we agree with the State, and conclude that the Defendant has
waived his appeal for failing to prepare an adequate appellate record. The Defendant
claims that the judgment forms were “facially invalid” because he was not represented by
counsel and because he was not advised of the litany of rights he would waive by
pleading guilty. However, the record does not include the judgment form for the
Defendant’s 2010 conviction. Therefore, we are unable to determine whether that
judgment form was facially invalid. Additionally, the trial court conducted a hearing on
the Defendant’s motions to dismiss, and the transcript from that proceeding was not
included in the appellate record. The Defendant has a duty to prepare a record that
conveys “a fair, accurate and complete account of what transpired with respect to those
issues that are the bases of the appeal.” Tenn. R. App. P. 24(b). The scope of appellate
review is limited to the facts established in the record. Tenn. R. App. P. 13(c). In the
absence of an adequate record on appeal, this court must presume that the trial court’s
rulings were supported by sufficient evidence. Vermilye v. State, 584 S.W.2d 226, 230
(Tenn. Crim. App. 1979). Accordingly, the Defendant has waived our consideration of
this issue on appeal.

      Waiver notwithstanding, the Defendant is not entitled to relief. The Defendant’s
argument is that the trial court erred in declaring him to be a MVHO, because the
underlying convictions the State relied on in its petition were facially invalid. We must
emphasize that “unless invalid on its face, a prior judgment of conviction in a court with
personal and subject matter jurisdiction cannot be collaterally attacked in a subsequent
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proceeding.” State v. McClintock, 732 S.W.2d 268, 271-72 (Tenn. 1987); See Everhart,
563 S.W.2d at 797-98 (holding that a defendant may not collaterally attack predicate
convictions during a MVHO proceeding). Furthermore, the Tennessee Supreme Court
has held that “a conviction should be void on its face when ‘the record affirmatively
reveal[s] that the defendant had neither been represented by counsel nor waived his right
to counsel.’” Hickman v. State, 153 S.W.3d 16, 25 (Tenn. 2004) (quoting McClintock,
732 S.W.2d at 271-72). The Tennessee Supreme Court has also held that “a conviction is
void on its face . . . when the face of the judgment or the record of the proceedings
‘clearly and indisputably’ reflects that the court of conviction lacked territorial
jurisdiction.” Hickman, 153 S.W.3d at 25.

       Here, the trial court found that the judgment forms were facially valid because the
Defendant “signed a waiver in each instance which surrendered his right to indictment or
presentment, right of trial by jury[,] and the right to counsel.” The judgment form for the
Defendant’s 2010 conviction was not included in the record; therefore, we are precluded
from reviewing the validity of that judgment form. However, upon our review of the
2014 judgment form, it contains the aforementioned rights and the right to plead not
guilty, the right to confront and cross-examine witnesses, the right against self-
incrimination, and the right to appellate review. Thus, the judgment form “contain[ed] all
the information that is constitutionally and statutorily required to render . . . [it] valid.”
See Joseph R. Bledsoe, 2013 WL 936296, at *2.

        Moreover, the judgment form contained the Defendant’s signature acknowledging
that he was informed of these rights before entering his guilty plea and it contained the
trial court’s certification that it informed the Defendant of his rights in open court.
Although the Defendant raised no issue regarding whether the trial court was vested with
personal and subject matter jurisdiction, the Defendant was charged with misdemeanor
offenses and “the court of general sessions is vested with jurisdiction . . . in all
misdemeanor cases.” See T.C.A. § 40-1-109. Therefore, the 2014 judgment form was
facially valid, and “[t]he authorized route for attacking a facially valid, final judgment of
conviction is by the Post-Conviction Procedure Act.” McClintock, 732 S.W.2d at 272.
Accordingly, the Defendant’s argument is without merit, and he is not entitled to relief.

       Finally, on the last page of the Defendant’s brief, the Defendant argued that the
two convictions on September 3, 2014, should have merged into a single conviction,
since they occurred within a twenty-four hour period, and that the driving on a cancelled
license conviction is not a valid triggering conviction under the MVHO Act. The
Defendant’s brief failed to provide any additional argument or citation to relevant
authority for these issues. Accordingly, these issues are waived. See Tenn. Ct. Crim.
App. R. 10(b) (“Issues which are not supported by argument, citation to authorities, or
appropriate reference to the record will be treated as waived in this court.”).
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                                   CONCLUSION

        Based on the aforementioned reasoning and authorities, we affirm the judgment of
the trial court.

                                                   ______________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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