         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs September 23, 2003

               ROGER L. HICKMAN VS. STATE OF TENNESSEE

                        Appeal from the Circuit Court for Knox County
                             No. 76276    Ray L. Jenkins, Judge



                                  No. E2003-00567-CCA-R3-PC
                                        January 28, 2004

The Defendant, Roger L. Hickman, appeals from the trial court’s dismissal of his petition for post-
conviction relief, in which he alleged that, in 1986, he entered a guilty plea to a misdemeanor
without the assistance of counsel and without waiving his right to counsel. We affirm the dismissal
of the Defendant’s post-conviction petition because it was time-barred. Furthermore, we conclude
that the Defendant is not entitled to habeas corpus relief. We affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER , J.,
joined. JAMES CURWOOD WITT, JR., J., concurred in result only.

Doug Trant, Knoxville, Tennessee, for the appellant, Roger L. Hickman.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
and Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee

                                             OPINION


        In 1986, in Knox County General Sessions Court, the Defendant was convicted, upon his plea
of guilty, of possession of marijuana. He received a ten-day suspended sentence. The judgment
form does not indicate whether the Defendant was represented by counsel, and no signature appears
in the space indicated for “Waiver of Attorney.” On December 30, 2002, the Defendant filed a
petition for post-conviction relief in which he alleged that his conviction was void because he did
not have an attorney to represent him, nor did he waive his right to counsel. The trial court
dismissed the Defendant’s petition on the grounds that it was barred by the one-year statute of
limitations. This appeal followed.

        First, we must determine whether the Defendant’s petition for post-conviction relief is barred
by the statute of limitations. A petition for post-conviction relief must be filed within one year of
the date on which the judgment became final, if no appeal is taken. See Tenn. Code Ann. § 40-30-
102(a). The Defendant contends that he should be excused from complying with the statute of
limitations because the United States Supreme Court promulgated a new rule of law in Alabama v.
Shelton that is deserving of retroactive application.

        In Alabama v. Shelton, 535 U.S. 654, 658, 122 S. Ct. 1764, 1767, 152 L. Ed. 2d 888, 895
(2002), the Supreme Court held that the defendant’s suspended sentence, which could result in the
defendant actually being deprived of liberty, could not be imposed unless the defendant was
accorded the assistance of counsel. Consequently, the Court expanded the holding of its prior
decision, Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), in which it
stated that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense,
whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his
trial.” 407 U.S. at 37.

        As set forth in Meadows v. State, 849 S.W.2d 748, 751 (Tenn. 1993), “a case announces a
new rule when it breaks new ground or imposes a new obligation on the States or the Federal
Government.” (Quoting Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070, 103 L. Ed. 2d
334, 349 (1989)). We do not believe that the Supreme Court announced a new rule of law in
Shelton. In deciding that a suspended sentence, which may eventually result in an actual deprivation
of liberty, may not be imposed unless the defendant was afforded counsel, the Court reasoned that
“[a] suspended sentence is a prison term imposed for the offense of conviction. Once the prison term
is triggered, the defendant is incarcerated not for the probation violation, but for the underlying
offense.” Shelton, 535 U.S. at 662. Therefore, the Court has taken the holding of Argersinger, that
“absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether
classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial,” and
expanded the meaning of the term “imprisoned” to include a probated sentence. See id.;
Argersinger, 407 U.S. at 37. This does not constitute a “new rule” as contemplated by Meadows.

        Furthermore, the Supreme Court’s holding in Shelton does not impose any new obligation
on the State of Tennessee. At the time the Defendant pled guilty in 1986, Tennessee already required
the appointment of counsel where a defendant “may be subjected to a loss of liberty.” State v.
Tyson, 603 S.W.2d 748, 752 (Tenn. Crim. App. 1980). Because no new rule of law has been
promulgated that deserves retroactive application, the Defendant’s argument that he should be
excused from complying with the statute of limitations is without merit. The trial court did not err
by dismissing the Defendant’s petition for post-conviction relief.

        In addition, a panel of this Court has previously ruled that the Defendant is not entitled to
habeas corpus relief. In Roger L. Hickman v. State, No. E2002-01916-CCA-R3-PC, 2003 WL
22970966, at *3 (Tenn. Crim. App., Knoxville, Dec. 18, 2003), the majority held that “[b]ecause the
record establishes that the Appellant’s 1986 sentence has expired and he is no longer in actual or
constructive custody, we conclude that the Appellant is not ‘imprisoned or restrained of his liberty,’
as required by the habeas corpus statute. Accordingly, the issue of whether he may prosecute the
writ of habeas corpus is moot.” Id. We agree with the majority in Hickman that the Defendant is


                                                 -2-
not “imprisoned or restrained of liberty” as required by Tennessee Code Annotated section 29-21-
101; therefore he may not prosecute a writ of habeas corpus seeking relief from his 1986
misdemeanor conviction.

        The Defendant’s petition gains him relief neither as a petition for post-conviction relief nor
as a petition for writ of habeas corpus. Therefore, the trial court did not err in dismissing the
petition. The judgment of the trial court is affirmed.

                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




                                                 -3-
