Barry Wells v. Ron Rickard

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1997 SESSION
FILED
June 09, 1997
BARRY WELLS, ) Cecil Crowson, Jr.
) Appellate C ourt Clerk
APPELLANT, )
) No. 02-C-01-9610-CV-00358
)
) Lauderdale County
v. )
) Joseph H. Walker, III, Judge
)
) (Habeas Corpus)
RONNIE RICKARD, )
)
APPELLEE. )
FOR THE APPELLANT: FOR THE APPELLEE:
Robert H. Hutton John Knox Walkup
Attorney at Law Attorney General & Reporter
1700 One Commerce Square 500 Charlotte Avenue
Memphis, TN 38103 Nashville, TN 37243-0497
Ellen H. Pollack
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Elizabeth T. Rice
District Attorney General
302 Market Street
Somerville, TN 38068
Mark E. Davidson
Assistant District Attorney General
302 Market Street
Somerville, TN 38068
OPINION FILED:______________________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Barry Wells (petitioner), appeals as of right from a judgment of the
trial court refusing to void his conviction for theft under $500 on the ground the general
sessions judge who tried and sentenced him was a lay judicial officer. In this Court, the
petitioner contends he was entitled to have a judge licensed to practice law sit in judgment
of him. After a thorough review of the record, the briefs submitted by the parties, and the
law governing the issue presented for review, it is the opinion of this Court the judgment
of the trial court should be affirmed.
On July 17, 1995, an arrest warrant was issued by the clerk of the Lauderdale
County general sessions court for the arrest of the petitioner. The warrant alleged the
offense of theft under $500, a Class A misdemeanor. The affidavit of complaint alleged
the petitioner stole a 13" television on July 12, 1995 from Julia Claybrooks. A deputy
sheriff subsequently executed the warrant and the petitioner was placed in the Lauderdale
County Jail. The petitioner appeared in the general sessions court on July 24, 1995. He
entered a plea of not guilty, waived his right to counsel, and waived his right to trial by jury.
The petitioner was found guilty of theft under $500 after a trial on the merits. He was
sentenced to pay a $100 fine and serve eleven months and twenty-nine days in the
Lauderdale County Jail at 75 percent. All but thirty days of the petitioner's sentence was
suspended and he was placed on probation. He was ordered to make restitution in the
sum of $250 and to pay the accrued court costs.
On September 28, 1995, a capias was issued for the arrest of the petitioner for a
violation of his probation. The capias was not served until August 25, 1996. The petitioner
appeared in the general sessions court the next day, August 26, 1996. The petitioner was
not advised of the right to counsel and counsel was not appointed to represent him. The
petitioner did not waive his right to counsel. The general sessions judge revoked the
petitioner's probation. He was ordered to serve the balance of his sentence or pay $522.
The petitioner initiated this action for habeas corpus in the Circuit Court for the 25th
Judicial District. The trial court found the petitioner was denied his right to counsel at the
revocation hearing. This matter was remanded to the General Sessions Court of
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Lauderdale County for a new hearing. The general sessions court was directed to provide
counsel to the petitioner in the absence of “a clear showing of a waiver of the right to an
attorney" in writing.
The trial court found that Lauderdale County has never had a general sessions
judge who was licensed to practice law. In 1990, Billy Wayne Williams, a retired state
trooper, was elected general sessions judge. No licensed attorney qualified to run for the
office.
The trial court followed the decision of the Supreme Court of the United States in
North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976) when denying the
petitioner relief on this issue. The petitioner relies upon the Tennessee Supreme Court's
decision in State ex rel. Anglin v. Mitchell, 596 S.W.2d 779 (Tenn. 1980), to support his
contention that he was entitled to a lawyer judge. The trial court also relied upon Tenn.
Code Ann. § 16-15-5005.
In North the United States Supreme Court held:
We conclude that the Kentucky two-tier trial court system with
lay judicial officers in the first tier in smaller cities and an
appeal of right with a de novo trial before a traditionally law-
trained judge in the second [tier] does not violate either the due
process or equal protection guarantees of the Constitution of
the United States. . . .
427 U.S. at 339, 96 S.Ct. at 2714, 49 L.Ed.2d at 542. This jurisdiction, like Kentucky, has
a two-tier system. An accused who submits to the jurisdiction of the general sessions court
and is convicted of a criminal offense has the right to appeal to a court of general
jurisdiction, a criminal court or circuit court, exercising criminal jurisdiction. Tenn. Code
Ann. §§ 27-5-108, 27-3-131 (Supp. 1996). If the accused desires a jury trial, he must write
such fact on the face of the appeal form. Tenn. Code Ann. § 27-3-131 (Supp. 1996).
The petitioner's reliance upon State ex rel. Anglin v. Mitchell is misplaced. The
Supreme Court made its holding clear. The court said:
We hold, in the context of a juvenile commitment, that "the law
of the land" provision of Article I, Section 8 of the Constitution
of Tennessee does not permit a judge who is not licensed to
practice law to make any disposition of a juvenile that operates
to confine him or deprive him of his liberty.
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596 S.W.2d at 791. The appellate courts of this jurisdiction have refused to extend Anglin
to other circumstances. In State v. Pritchett, 621 S.W.2d 127, 132 (Tenn. 1981), a capital
case, the Supreme Court refused to extend Anglin to preliminary hearings conducted by
a non-lawyer general sessions judge. This Court reached the same result as Pritchett in
State v. Voltz, 626 S.W.2d 291, 295-96 (Tenn. Crim. App.), per. app. denied (Tenn. 1981).
This Court has refused to extend Anglin to transfer hearings conducted by a non-lawyer
juvenile court judge. State v. Davis, 637 S.W.2d 471, 474 (Tenn. Crim. App. 1982); State
v. Briley, 619 S.W.2d 149, 152 (Tenn. Crim. App. 1981).
The Supreme Court in Anglin took great pains to distinguish the application of North
to juvenile proceedings and adult proceedings. The court said:
The differences between North v. Russell and the case at bar
are glaring. There the defendant was an adult; here we deal
with a minor. There the defendant was sentenced to 30 days
in jail, fined $150.00 and stripped of his driver's license; here
we are faced with confinements up to seven and eight years.
There the offense was a misdemeanor; here it was a felony.
596 S.W.2d at 790. This Court applied North in Voltz.
There is a statutory mandate that general sessions judges be licensed lawyers.
However, there is an exception to this mandate. Tenn. Code Ann. § 16-15-5005(b) states
that effective September 1, 1990:
If no licensed attorney qualifies for an election being held to fill
the office of general sessions judge, or the only attorney
candidate legally withdraws, the county election commission
shall extend the qualification deadline for a period of ten (10)
days, during which period persons not licensed to practice law
may qualify to seek the office of general sessions judge. The
provisions of the second sentence of this subsection shall not
apply in counties having a population of not less than fifty-one
thousand twenty-five (51,025) nor more than fifty-one thousand
one hundred twenty-five (51,125) according to the 1980 federal
census or any subsequent federal census.
This statute is constitutional. It does not violate the Due Process Clause or Equal
Protection Clause of the United States Constitution or the law of the land provision of the
Tennessee Constitution.
As previously stated, Lauderdale County has never had a licensed lawyer as a
general sessions judge. In 1990 no licensed lawyer qualified for the office. According to
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the statute, non-lawyers could qualify for the office. Judge Williams qualified pursuant to
the statute and was duly elected by the citizens of Lauderdale County.
CONCLUSION
Judge Williams was duly elected and qualified to serve in the capacity of general
sessions judge by virtue of Tenn. Code Ann. § 16-15-5005(b). Therefore, he had the right
to try the petitioner for the misdemeanor offense of theft under $500 after the petitioner
waived his right to counsel and trial by jury. Judge Williams also had the authority to
sentence the petitioner after finding him guilty.
This Court adopts the holding in North v. Russell. While Judge Williams was not
licensed to practice law, the judges of the circuit court are licensed to practice law.
Furthermore, the petitioner had a right to appeal his conviction and sentence to the Circuit
Court for the 25th Judicial District sitting in Lauderdale County. He was entitled to a jury
trial if he had requested it. However, the petitioner failed to appeal. Therefore, he waived
his right of appeal. Obviously, the petitioner was satisfied with the sentence because
Judge Williams granted him probation for most of the sentence. He did not become
dissatisfied until Judge Williams revoked his probation for failing to conform to the
conditions of the probation.
_____________________________________________
JOE B. JONES, PRESIDING JUDGE
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CONCUR:
_______________________________________
JOHN H. PEAY, JUDGE
_______________________________________
JOE G. RILEY, JUDGE
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