            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT KNOXVILLE            FILED
                              JANUARY 1997 SESSION
                                                                April 17, 1997

                                                            Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
LESLEY BUFORD,                      *       C.C.A. # 03C01-9603-CR-00096
                                    *
                 Appellant,         *       HAMILTON COUNTY
VS.                                 *
                                    *       Hon. Stephen M. Bevil, Judge
STATE OF TENNESSEE,                 *
                                    *       (Post-Conviction)
                 Appellee.          *
                                    *




For Appellant:                              For Appellee:

Lesley Buford, Pro Se                       Charles W. Burson
South Central Correction Facility           Attorney General & Reporter
P.O. Box 279
Clifton, TN 38425-0279                      Robin L. Harris
                                            Assistant Attorney General
                                            Criminal Justice Division
                                            450 James Robertson Parkway
                                            Nashville, TN 37243-0493




OPINION FILED:




AFFIRMED




GARY R. WADE, JUDGE
                                       OPINION

              The petitioner, Lesley Buford, appeals the trial court's dismissal of his

petition for post-conviction relief. The single issue presented for our review is

whether the trial court erred by dismissing the petition without any answer having

been filed by the state, without the appointment of counsel, or without an evidentiary

hearing.



              Because the issues raised in the petition can be conclusively

determined in favor of the state, we affirm the judgment of the trial court.



              On April 8, 1994, the petitioner pled guilty to one count of disorderly

conduct, a misdemeanor, and four counts of driving while a habitual motor offender

order was in effect, Class E felonies as defined in Tenn. Code Ann. § 55-10-616.

The trial court imposed a sentence of eleven months twenty-nine days for the

disorderly conduct offense to be served concurrently with consecutive sentences of

three years, two years, and two years for the first three habitual motor offender

violations. A two-year sentence for the fourth violation is to be served concurrently.

We calculate the effective sentence as seven years in the Tennessee Department

of Correction. There was no direct appeal.



              On December 28, 1995, the petitioner filed this, his first petition for

post-conviction relief, alleging (1) that his guilty pleas had not been knowingly made

because a seven-year rather than a six-year sentence had been imposed; (2) that

his defense counsel was ineffective; and (3) that his conviction violated double

jeopardy principles. The petitioner requested the appointment of counsel. The state

filed no response.




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              Utilizing the Post-Conviction Procedure Act effective May 10, 1995, the

trial court summarily dismissed the petition on the following grounds:

              (1) the court found that the petition presented no basis
              for relief;

              (2) the transcript of the plea hearing showed that the
              court informed the petitioner he would receive a seven-
              year sentence and this sentence was in accordance with
              the plea agreement;

              (3) by pleading guilty, the defendant waived his right to
              attack defects in his cases including his claims that the
              two felony driving offenses committed on the same day
              constituted only one offense and that he faced double
              jeopardy when tried on an indictment that the city court
              had already dismissed.



              The post-conviction legislation of 1995 allows for a preliminary

dismissal when, among other things, the petition does not include a possible ground

for relief:

              Upon receipt of a petition in proper form, or upon receipt
              of an amended petition, the court shall examine the
              allegations of fact in the petition. If facts alleged, taken
              as true, fail to show that the petitioner is entitled to relief
              ... the petition shall be dismissed.

Tenn. Code Ann. § 40-30-206(f) (1996 Supp.) (emphasis added).



               Case law before the 1995 Act provides some guidance. To make a

claim "colorable" or actionable, the pro se petitioner must assert a basic theory of

relief. Lowe v. State, 805 S.W.2d 368, 372 (Tenn. 1991). This court has defined a

"colorable" claim, under the statutory law in existence before the 1995 Act, as "one

that alleges facts showing that the conviction resulted from an abridgment of a

constitutional right and which demonstrates that the ground for relief was not

previously determined or waived." Hugh Ronald Carmley v. State, No. 03C01-9305-

CR-00167, slip op. at 6 (Tenn. Crim. App., at Knoxville, Jan. 13, 1994). Much like

the new statute, "the test [was] whether it appears beyond doubt that the [petitioner]

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can prove no set of facts in support of his claim which would entitle him to relief."

Swanson v. State, 749 S.W.2d 731, 734 (Tenn. 1988) (second alteration in original)

(quoting Baxter v. Rose, 523 S.W.2d 930, 939 (Tenn. 1975)). See also Tenn. Sup.

Ct. R. 28, § 2(H). "[A] petition stating a colorable claim for relief ... is to be

considered on its merits." Swanson, 749 S.W.2d at 734.



              The new statute requires the trial courts, at the preliminary stages, to

first "determine whether the petitioner is indigent and in need of counsel." Tenn.

Code Ann. § 40-30-206(e). The trial court "may provide counsel and allow time for

an amendment to the petition." Id. Before there can be a preliminary dismissal,

however, the statute requires the trial court to assume "as true" the facts alleged by

the petitioner. Here, the petitioner, despite the contents of the transcript of his guilty

pleas, first insisted that his seven-year sentence was contrary to the sentence

promised in the plea agreement. He asserted that, because of a one year increase

in sentence length during a bench conference to which he was not privy, his pleas

were neither knowingly nor voluntarily entered; he contended that but for the

deficient representation of his counsel, he would not have conceded his guilt to the

charges that he had violated the habitual offender order and would have insisted on

a trial.



               Here, it is clear from the transcript of the sentencing hearing that the

trial court carefully explained his sentence length to the petitioner. When asked if he

understood, the petitioner responded, "Seven years, total of seven years." The trial

judge again inquired, "Total of seven years. Three plus two, plus two?" The

petitioner agreed to the sentence on the record. It can be conclusively determined

from the record that the petitioner acknowledged his acceptance of a seven-year

sentence. Because the complaint about the length of the sentence is the only basis


                                          4
for the allegation that the plea was not voluntary, this court must conclude that the

trial court correctly found that the plea was knowingly made.



              Next, the petitioner claims that his trial counsel was ineffective for

allowing him to plead guilty to two counts of habitual vehicle motor offender

violation, because the offenses were committed on the same day and thus

"constitute[d] one offense under Tennessee law." The petitioner goes on to claim

that these two offenses were used to qualify him as a habitual vehicle motor

offender. The record, however, establishes that the petitioner is not entitled to relief.

While driving offenses committed on the same day are considered as a single

offense when computing the number of convictions required to qualify as a habitual

motor offender, Tenn. Code Ann. § 55-10-604, the same is not true for violations of

an existing order. The record shows that the two violations at issue were for the

abridgements of an order already in place, not the underlying offenses used to

declare the petitioner a habitual offender. The petitioner has incorrectly interpreted

the law; thus his counsel could not have been ineffective on this basis.



              Lastly, the petitioner claims that his counsel was ineffective by failing

to protect the petitioner's right against double jeopardy. The petitioner claims that

one of the habitual motor offender violations had been dismissed in the

Chattanooga City Court before being revived with the three others in the Criminal

Court of Hamilton County.



              In State v. Knight, 616 S.W.2d 593 (Tenn. 1981), our supreme court

made the following comment about double jeopardy:

                     The essence of the prohibition against double
              jeopardy is ... that[, in the second trial, the defendant]
              would risk conviction for an offense for which he has
              already been placed on trial and in jeopardy.

                                        5
Id. at 595 (citations omitted). In Abney v. United States, 431 U.S. 651 (1977), the

United States Supreme Court explained the reason for the protection:

              [T]he State with all its resources and power should not be
              allowed to make repeated attempts to convict an
              individual for an alleged offense, thereby subjecting him
              to embarrassment, expense and ordeal, and compelling
              him to live in a continuing state of anxiety and insecurity,
              as well as enhancing the possibility that even though
              innocent he may be found guilty.

Id. at 661-62. Once a criminal prosecution reaches the point where jeopardy

attaches, the defendant may not be retried on the same offense; however, this point

varies depending on what legal action is taken. Jeopardy does not attach at an

arraignment or preliminary hearing. State v. Todd, 654 S.W.2d 379, 381 (Tenn.

1983); State v. Lee, 693 S.W.2d 361, 363 (Tenn. Crim. App. 1985). In a bench trial,

jeopardy attaches when a defendant has been properly indicted; he has properly

waived his right to a jury trial; the case is before a court with jurisdiction over the

matter; the judge is qualified and present; the defendant has entered his plea; and

the witness (one or all) has been sworn. State v. Daniels, 531 S.W.2d 795, 801-02

(Tenn. Crim. App. 1975). Testimony by a witness is not necessary. Id. at 802. In a

jury trial, jeopardy attaches at a similar point: when the defendant is before a court

with jurisdiction; there is a proper indictment; and the jury has been impaneled and

sworn. Id. at 797. Once again, it is not necessary that there be any testimony. Id.



              There are three notable exceptions to the prohibition against double

jeopardy:

              (1) When the defendant actively seeks or consents to
              the premature termination of the proceedings (provided
              that he has not been caused to do so by the
              overreaching of the prosecution or judge);

              (2) When the proceedings were caused to terminate
              through the misconduct of defense counsel and there
              was no feasible alternative to halting the proceedings;
              and


                                         6
                 (3) Where there is a manifest necessity for the dismissal
                 else "the ends of public justice would otherwise be
                 defeated."

State v. Michael Wayne Downs and Stephen Anthony Downs, No. 88-275-III, slip

op. at 7 (Tenn. Crim. App., at Nashville, Nov. 7 1989), app. granted and aff'd on

unrelated issue, State v. Bryant, 805 S.W.2d 762 (Tenn. 1991) (citations omitted).



                 Here, however, the petitioner was never in jeopardy. The city court

must have had jurisdiction over the criminal prosecution of "felonious operation of a

motor vehicle" in order for the petitioner to show that jeopardy had attached. "[A]

municipal or corporation court has no jurisdiction to hear cases based upon violation

of State statutes unless the Legislature has expressly conferered such jurisdiction

upon such court." Hill v. State ex rel. Phillips, 392 S.W.2d 950, 952 (Tenn. 1965).

Tennessee Code Annotated section 6-21-501 defines the jurisdiction of municipal

courts. While these courts have been granted jurisdiction over most misdemeanor

crimes1, they do not have authority to hear felony cases. The petitioner contends

his charge in city court was a felony; in our view, the Chattanooga City court did not

have jurisdiction to adjudicate the case. Thus, defense counsel could not have

been ineffective by failing to raise the issue of double jeopardy.



                 Accordingly, the judgment of the trial court is affirmed.



                                                      __________________________________
                                                      Gary R. Wade, Judge

CONCUR:




        1
         Tenn . Code A nn. § 6-2 1-501 g rants city co urts "con curren t jurisdiction a nd autho rity with
courts of general sessions" in the same county. Tenn. Code Ann. §§ 16-15-401, -501, 40-1-109
defines the jurisdiction of general sessions courts which includes the authority to try misdemeanor
cases.

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_______________________________
William M. Barker, Judge



________________________________
Curwood Witt, Judge




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