State ex rel. Callahan v. Henderson

• Decision Date: 28 July 1967
• Citation: 417 S.W.2d 789,24 McCanless 417,220 Tenn. 417
• Parties: , 220 Tenn. 417 STATE of Tennessee ex rel. Donald CALLAHAN v. C. Murray HENDERSON, Warden, etc.
• Court: Tennessee Supreme Court

Page 789

417 S.W.2d 789

24 McCanless 417, 220 Tenn. 417

STATE of Tennessee ex rel. Donald CALLAHAN v. C. Murray HENDERSON, Warden, etc.

Supreme Court of Tennessee.

July 28, 1967.

David J. White, Nashville, for petitioner.

George F. McCanless, Atty. Gen., and Paul E. Jennings, Asst. Atty. Gen., Nashville, for Warden.

OPINION

BURNETT, Chief Justice.

This is another petition for habeas corpus which was originally filed in the Circuit Court of Davidson County, Tennessee, but pursuant to statute was transferred to Franklin County where petitioner was originally tried and convicted.

This petitioner filed a petition for habeas corpus prior to this time in 1964 before we had statutory jurisdiction to transfer the case to the court in which it was originally tried. In the first instance it was tried in the Davidson County Circuit Court wherein the petition was denied and on appeal to this Court the petition was dismissed because the petitioner had failed to assign errors in this Court; thereafter a petition was filed in the Federal Court of the Middle District of Tennessee and it was there denied because petitioner had not exhausted all available State remedies.

The present petition is typical of various petitions we have had by inmates of the penitentiary and all of them, or practically all of them, make stereotyped allegations that the petitioner's constitutional rights have been violated when his conviction was obtained.

The same is true of this petition wherein it is alleged according to a correct summary from the State's brief, that: (1) he was not furnished a copy of the arrest warrant which was sworn against him; (2) he was not furnished a copy of the indictment returned against him; (3) he was not furnished a list of the names of the grand jurors; (4) he was not furnished a list of the names of the petit jurors; (5) he was convicted by a trial jury that was illegally and unlawfully constituted; (6) the convicting court was without jurisdiction to convict and sentence him because the offenses for which he was convicted were defined by an improperly apportioned Legislature; (7) he was not adequately represented by counsel in the lower court because counsel was appointed only fifteen minutes before his trial and counsel failed to request a continuance to investigate his case; (8) he was not advised by the court or his attorney of the consequences of the pleas of guilty nor was there any determination that the pleas were freely and voluntarily entered; and (9) he was denied appellate review because neither the court nor counsel advised him of the steps necessary to an appeal. The last three allegations, (7), (8) and (9), and primarily (7) above, are particularly well briefed and very ably argued by counsel for the petitioner as well as counsel for the State before this Court.

This petition was tried after a complete evidentiary hearing at which time the petitioner was represented by court-appointed counsel. After a complete hearing the application for the writ of habeas corpus was denied and this appeal results.

The record shows that the petitioner did not testify and that he was advised that the proceedings were of a civil nature and that there would be a presumption that his testimony would be adverse to the allegations of his petition if he did not testify to the factual situation which he alleged in his petition.

The Sessions Judge of Franklin County, who acted as the committing Magistrate, testified that he was the Judge at the preliminary hearing; that at that time he advised the petitioner of his right to be represented by an attorney at said hearing; that the petitioner did not confer with an attorney at the hearing; that the petitioner entered a plea of guilty at the preliminary hearing; and that he, the Judge, did not testify at the trial proceedings where the petitioner entered his plea of guilty to the offenses before the Criminal Court Judge and jury.

At the trial before the court in which he was convicted, and of which he now complains, he was represented by two lawyers who were appointed by the trial court. Both of these lawyers are able and capable attorneys. These lawyers were appointed on the morning of the trial and they conferred with the petitioner for some fifteen or twenty minutes prior to the trial. These lawyers testified in the cause now before us that after talking with the petitioner they conferred with the District Attorney General concerning the case, and that the District Attorney General with some reluctance agreed to allow the petitioner to submit on each of the three offenses for which he was indicted and then to be tried and receive the minimum sentences on each. The attorneys then communicated this fact to the petitioner and he consented thereto. Petitioner was advised of the possible sentence for each offense, which included a possibility of death by electrocution for the armed robbery offense. The petitioner stated to them that he had no winesses, and that because petitioner had no defense these attorneys advised him that it would be to his best interest to take the minimum sentences for each offense. Counsel testified herein that the petitioner expressed a willingness to plead guilty and that it was the petitioner's decision to enter the plea of guilty. One of the lawyers testified in this hearing that the petitioner was not coerced or threatened or anything of the kind to enter the plea, and that he was well satisfied with the settlement they had made with the District Attorney General.

The testimony herein shows likewise that the court advised the petitioner of all his constitutional rights. Counsel testified that he did not recall advising petitioner that he had a right of appeal but that petitioner at no time requested an appeal. It is shown without contradiction that these attorneys advised the petitioner fully as to the sentence which was placed upon him. It is also shown that no juror was challenged because a settlement had been arranged with the District Attorney General and that at no time did the petitioner request a copy of the warrant sworn out against him or the indictment or the list of jurors.

This petitioner, before convicted of these offenses which he now seeks to set aside, was apprehended on November 23, 1962, and charged with armed robbery in that he took from a police officer a revolver and $115.00; that he took the automobile which the policeman was driving; and he kidnapped the officer in doing this. These offenses were alleged to have occurred in Franklin County, Tennessee, on the same day that he was apprehended. Petitioner after being apprehended was removed to a neighboring county jail where he was incarcerated pending a preliminary hearing. On the day this was had, November 29, he was transferred to Franklin County where he appeared for the preliminary hearing and the trial in which he was convicted on January 9, 1963, and his conviction carried with it sentences of ten years for armed robbery, three years for the car theft, and two years for kidnapping, which sentences were to run consencutively making a total of fifteen years. An appeal from these judgments was not requested.

The main contention, which is ably made in the brief and was...