Ralph Dean Purkey v. State ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE July 16, 1999
Cecil Crowson, Jr.
MARCH 1999 SESSION Appellate C ourt
Clerk
RALPH DEAN PURKEY, * C.C.A. # 03C01-9808-CC-00268
Appellant, * BLEDSOE COUNTY
VS. * Hon. Thomas W . Graham, Judge
JAMES A. BOWLEN, WARDEN, and * (Habeas Corpus)
THE TENNESSEE DEPARTMENT
OF CORRECTION, *
Appellees. *
For Appellant: For Appellees:
Ralph Dean Purkey, pro se John Knox Walkup
No. 110256 Attorney General and Reporter
STSRCF, Unit 6
Route 4, Box 600 Todd R. Kelley
Pikeville, TN 37367 Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
James W. Pope, III
Assistant District Attorney General
District Attorney General's Office
Twelfth Judicial District
265 Third Avenue, Suite 300
Dayton, TN 37321
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The petitioner, Ralph Dean Purkey, appeals the trial court's denial of
his petition for writ of habeas corpus. The single issue presented for our review is
whether the petition was properly dismissed. We find no error and affirm the
judgment of the trial court.
On September 25, 1986, the petitioner was convicted of grand larceny
in Cocke County and received a ten-year sentence. Because he was found to be a
habitual criminal, his sentence was enhanced to a term of life in prison. Defense
counsel filed a motion for a new trial but the motion was dismissed because the
petitioner escaped from custody after his conviction. No appeal was taken. Ralph
Dean Purkey v. State, No. 03C01-9607-CC-00257, slip op. at 2 (Tenn. Crim. App.,
at Knoxville, Oct. 8, 1997). The petitioner was eventually apprehended and,
afterward, filed numerous petitions for post-conviction relief, all of which were
dismissed as time-barred. See id. (ruling that the third petition was barred by the
statute of limitations).
On May 29, 1998, the petitioner filed this petition for writ of habeas
corpus alleging that his convictions were obtained as a result of violations of the
Tennessee and United States Constitutions. He contended that his conviction for
grand larceny over $200.00 is void because it is based on insufficient evidence. The
petitioner argued that the victim testified at trial to a loss in cash and food stamps
totaling only $150.00, less than the $200.00 minimum required at that time to
support a grand larceny conviction. The petitioner points out that the presentence
report, which includes the victim's statement, documents a loss of only "$150.00 in
cash and food stamps as a result of this offense."
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The trial court observed that the petition would have been barred by
the statute of limitations had the petitioner sought post-conviction relief and ruled
that habeas corpus relief was not warranted because the petitioner was unable to
establish that his term of imprisonment had expired or that the judgment was facially
invalid. In this appeal, the petitioner complains that there was insufficient evidence
to support a conviction of grand larceny in an amount over $200.00 and the
enhancement of the sentence to a term of life due to habitual criminality was,
therefore, improper.
In this state, a writ of habeas corpus may be granted only when a
petitioner has established lack of jurisdiction for the order of confinement or that he
is otherwise entitled to immediate release because of the expiration of his sentence.
See Ussery v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell,
443 S.W.2d 839 (Tenn. Crim. App. 1969). A "person imprisoned or restrained of his
liberty, under any pretense whatsoever, ... may prosecute a writ of habeas corpus,
to inquire into the cause of such imprisonment...." Tenn. Code Ann. § 29-21-101.
The writ of habeas corpus, however, is available only when it appears on the face of
the judgment or the record that the trial court was without jurisdiction to convict or
sentence the defendant or that the sentence of imprisonment has otherwise expired.
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60,
62 (Tenn. 1992).
In John Wayne Slate v. State, No. 03C01-9201-CR-00014 (Tenn.
Crim. App., at Knoxville, Apr. 2, 1994), a panel of this court granted post-conviction
relief based upon insufficient evidence of deliberation, an essential element of first
degree murder. Because the insufficiency qualified as a violation of due process,
the conviction was declared constitutionally "void" and was modified to second
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degree murder. On October 21, 1994, our supreme court denied application for
permission to appeal, yet concurred in results only. The ruling in Slate was based
upon the decision of the United States Supreme Court in Jackson v. Virginia, 443
U.S. 307, 99 S. Ct. 2781 (1979). In Jackson, a federal habeas corpus case, the
Supreme Court ruled that due process of law is violated when a conviction results
from evidence which is insufficient under the reasonable doubt standard. 443 U.S.
at 317-18, 99 S. Ct. at 2788. The high court held that federal habeas corpus relief is
available "if it is found that upon the record evidence adduced at the trial no rational
trier of fact could have found proof of guilt beyond a reasonable doubt." 443 U.S. at
324, 99 S. Ct. at 2791-92.
.
At the time of this offense, petit larceny, then defined as a theft of less
than $200.00, was not among those listed offenses which would trigger a life
sentence based upon habitual criminality. See Tenn. Code Ann. § 39-1-801 (1982).
Basically, the petitioner contends that the evidence at his trial was insufficient to
support a conviction of grand larceny. Certainly, the presentence report and a
portion of the transcript provided by the petitioner and included in this record
suggests that the restitution ordered was less than $200.00, an indication at least
that the value of the stolen items was less than the $200.00 threshold.
An exhibit presented from the sentencing hearing establishes that
counsel for the defense objected when a witness testified that the amount of money
and food stamps approximated $150.00. At that point, the trial judge observed as
follows:
She is estimating under $200.00[.] I don't know why you
would object. Let the record show you object, and I
overrule.
Our inference from this is that the trial court observed that the petitioner's counsel
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could hardly complain since the request for restitution was for an amount less than
that established at trial. The statement, of course, was made after the jury had
returned a verdict of guilt under the petit larceny indictment.
A transcription of the trial is not included in this limited record. The
burden is always on the appellant to supply an adequate record on appeal for a
determination of the issues presented. Without the trial record, it would be
impossible to determine whether the evidence was sufficient. In consequence, this
court must presume that the trial court correctly ruled. Smith v. State, 589 S.W.2d
811 (Tenn. Crim. App. 1979); Vermilye v. State, 584 S.W.2d 226 (Tenn. Crim. App.
1979).
Habeas corpus relief under the Tennessee statute is limited. In
several cases, it has been held that a claim of insufficient evidence does not fall
within the definition of facial validity. See, e.g., Shepherd v. State, 533 S.W.2d 335,
338 (Tenn. Crim. App. 1975). Because the inadequacy of the record dictates the
result, it is not necessary for this court to consider whether state habeas corpus
relief would be available based on insufficient evidence in accordance with the
rulings in Jackson and Slate.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
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CONCUR:
_____________________________
Norma McGee Ogle, Judge
_____________________________
Cornelia A. Clark, Special Judge
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