180 Conn. 153 (1980)
JORGE L. NEGRON
v.
WARDEN, HARTFORD COMMUNITY CORRECTIONAL CENTER
Supreme Court of Connecticut.
Argued January 10, 1980.
Decision released March 25, 1980.
COTTER, C. J., BOGDANSKI, HEALEY, WRIGHT and N. O'NEILL, JS.
*154 David P. Gold, law student intern, with whom were Michael R. Sheldon and, on the brief, Gary R. Johnston, law student intern, for the appellant (plaintiff).
Robert E. Beach, Jr., assistant state's attorney, for the appellee (defendant).
COTTER, C. J.
This is an appeal from the denial of a hearing by the Superior Court, O'Brien, J., on a second application brought by the plaintiff for a writ of habeas corpus based on an alleged illegal imprisonment due to his fugitive from justice status arising out of a manslaughter conviction in New *155 York state. The narrow issue presented by this appeal is whether a plaintiff is entitled to a hearing upon a second application for a writ of habeas corpus if this second application is based on a different ground from any asserted in the initial habeas corpus application although not based on new evidence or new facts that were not reasonably available to the plaintiff at the time of the hearing on the first application. The underlying factual situation which brings this issue before this court is intricate, albeit undisputed, and requires delineation at some length.
On November 30, 1972, the plaintiff was indicted in the state of New York for murder. Subsequently, while released on bail, the plaintiff failed to appear for his New York trial in January, 1974, and in his absence he was convicted of manslaughter in the first degree. A New York warrant for his arrest for failure to appear was issued on or about January 9, 1974.
In February of 1977, the plaintiff was arrested on a Connecticut charge of attempted murder for an offense which allegedly occurred on January 3, 1977. On March 7, 1977, the plaintiff was charged in Connecticut with being a fugitive from justice from the state of New York. Also on March 7, 1977, the plaintiff was bound over to the Connecticut Superior Court on the charge of attempted murder in Connecticut. Later, on April 18, 1977, the state of Connecticut entered a nolle prosequi to the fugitive from justice charge; at that time the plaintiff was detained, in any event, on the charge of attempted murder in Connecticut.
Approximately seven months after the plaintiff was bound over to the Superior Court, the Connecticut *156 state's attorney's office began corresponding with New York state authorities concerning the plaintiff's extradition to New York. This correspondence led to the signing of a governor's warrant by Governor Grasso of Connecticut on May 24, 1978, for the purpose of extraditing the plaintiff to the state of New York. The governor's warrant was executed on June 13, 1978, and on July 10, 1978, the plaintiff made an application to the Superior Court for a writ of habeas corpus challenging his arrest on that warrant. This initial habeas corpus action involved a number of claims described in detail later in this opinion. Some were made by the plaintiff pro se and others were contained in a supplemental application made by the attorney then representing the plaintiff. The court, O'Brien, J., considered these claims at a hearing on August 24, 1978, and in a lengthy and detailed memorandum of decision rendered October 19, 1978, denied the claims and dismissed the writ of habeas corpus.
On November 8, 1978, following dismissal of the first habeas corpus action, the plaintiff obtained new counsel and filed another application. That application was summarily denied without a hearing on November 29, 1978, by the court, O'Brien, J., and after certification was granted to appeal that denial to this court, the plaintiff filed the present appeal on December 19, 1979. Early in 1979, the plaintiff was acquitted of the attempted murder charge against him for the episode which occurred in Connecticut in 1977. Thus, since that time, the plaintiff has been incarcerated pursuant to the governor's warrant which was signed on May 24, 1978.[1]
*157 The plaintiff claims that the court below erred in denying him a hearing on the merits of his second application for a writ of habeas corpus because it involved a legal claim which had not been presented previously to the court. The plaintiff does not contend that this legal claim in the second application was unavailable at the time of the hearing on his first habeas corpus action but only that it was not deliberately withheld at the time of the initial habeas corpus application. He maintains that the trial court's denial of a hearing on the second application constituted error in that it was in violation of the rules and statutes of this state and in violation of article first, § 10 of the Connecticut constitution. Thus, the threshold question raised by the plaintiff's claim of error is whether, and if so, with what guidelines, the rules and statutes of this state mandate a hearing upon a second application for a writ of habeas corpus if the second application is based upon a different ground from any relied on in the initial habeas corpus application.

I
When the plaintiff filed his second application, the procedures governing habeas corpus proceedings were set forth either in Practice Book, 1978, §§ 529 through 536 or in chapter 915 of the General Statutes, §§ 52-466 through 52-470. The plaintiff contends, and we agree, that the question of whether a hearing is mandated in a second application is controlled by Practice Book, 1978, § 531.[2] Section 531 *158 provides: "If the petitioner has filed a previous application, it and the action taken thereon shall be summarily described in the pending application. If a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing." The language of § 531 is clear on its face and prescribes that trial courts may dismiss a second application without a hearing only if that application asserts the same grounds and fails to state new facts or proffer new evidence not reasonably available to the petitioner at the hearing on his previous application. The necessary implication of this prescription is that if different grounds are asserted, a hearing on the second application is indicated. It is also clear that in this context "ground" must mean a "sufficient legal basis for granting the relief sought." Sanders v. United States, 373 U.S. 1, 16, 83 S. Ct. 1068, 10 L. Ed. 2d 148.[3]
*159 The plaintiff maintains that the trial court, in denying him a hearing on his second application, had determined that the new petition presented a legal claim which was not alleged in the earlier petition. Thus, he argues that our determination that Practice Book, 1978, § 531 provides for a hearing where the second or successive application states a different ground, that is, legal basis for granting the relief sought, should be dispositive of this appeal *160 and contends that this court need not and should not address the question of whether the plaintiff's new application does constitute a different ground from any relied on in his first application. We disagree. Even if we were to read the trial court's reason for denial as conceding that a different ground had been raised in the plaintiff's second application,[4] our inquiry into whether that ground had been raised would be warranted by the oftrepeated holding of this court that where the trial court arrives at a correct decision, but on incorrect grounds, that decision will be affirmed if proper grounds do exist to support it. See, e.g., Royce v. Freedom of Information Commission, 177 Conn. 584, 588, 418 A.2d 939; Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974; Morris v. Costa, 174 Conn. 592, 598, 392 A.2d 468; Maltbie, Conn. App. Proc. § 36.
If the second application failed to raise a different legal ground, the trial court would not have erred in denying a hearing pursuant to Practice Book, 1978, § 531. It is thus necessary to determine *161 whether the plaintiff's application does assert a new ground or is, as the defendant contends, merely a verbal reformulation of previously rejected claims.

II
At the time of the first application for a writ of habeas corpus the plaintiff pro se raised the following claims: New York state had violated the Uniform Criminal Extradition Act; Connecticut General Statutes §§ 54-157 through 54-185; in failing to apply for a governor's requisition in timely fashion pursuant to General Statutes § 54-171. The entering of a nolle prosequi on April 18, 1977, by the state of Connecticut on its fugitive from justice charge operated collaterally to estop New York from extraditing the plaintiff. Underlying this argument was the assumption that the entry of a nolle prosequi was an action on the merits of the New York manslaughter conviction and that extradition would thus be barred by the constitutional protections against double jeopardy.
The trial court denied this claim, and the plaintiff on appeal concedes its lack of merit. The nolle was obviously not a ruling on the merits of the New York manslaughter charge and the claim that the actions of the state of Connecticut can circumscribe the powers of New York state under the Uniform Criminal Extradition Act was effectively barred by Glavin v. Warden, 163 Conn. 394, 311 A.2d 86.
In the plaintiff's first application, as supplemented, his attorney raised the following additional claims in seeking a determination that the plaintiff's detention pursuant to the governor of New York's requisition and to the governor of Connecticut's warrant was illegal: Connecticut General *162 Statutes § 54-163 in authorizing the governor to execute extradition warrants of arrest violates provisions of the federal and state constitutions; the plaintiff's arrest violates provisions of the federal and state constitutions because Governor Grasso signed the warrant without affording the plaintiff a hearing. The governor's warrant was based on information which failed to set forth facts constituting probable cause that: the plaintiff was convicted of a crime in the state of New York; he was in New York when the conviction was reached; and he knowingly fled the state of New York on learning of the charges against him. Connecticut General Statutes § 54-171, a provision of the Uniform Criminal Extradition Act, had been violated by New York by its failure to act in timely fashion to obtain a governor's warrant in the state of Connecticut. New York state had violated the plaintiff's rights under article V, section (c) of the Agreement on Detainers; Connecticut General Statutes § 54-186; in delaying action on their detainer once it had been filed and in seeking or requesting a governor's warrant from Connecticut over a lengthy period of time.
In the plaintiff's second application, when he was represented by his present attorney, he claimed that the state of Connecticut was barred from delivering the plaintiff to New York authorities because of its violation of its own statutes and rules of practice. The plaintiff specifically contended that the state's entry of a nolle prosequi to the fugitive from justice charge, at a time when the plaintiff was involuntarily absent from the courtroom, followed by a more than thirteen month period before the reinstitution of the fugitive from justice charge pursuant to the issuance and execution of a governor's *163 warrant violated General Statutes §§ 54-46, 54-142a (c) and Practice Book, 1963, § 2137 (§ 726 of the 1978 Practice Book).[5] The plaintiff argued that to permit the state of Connecticut, in the face of these alleged violations, to surrender the plaintiff into the custody of the state of New York would be a violation of his constitutional guarantees of due process and equal protection of the law.
On this appeal the plaintiff maintains that although both habeas corpus applications involve issues concerning the entry of a nolle prosequi to the fugitive from justice charge, the legal basis for the relief sought in the second application is fundamentally different from the grounds raised in the first application. We agree.
In the first application, each claim of a violation of the Uniform Criminal Extradition Act or of a constitutional guarantee was addressed to the authority of the state of New York to receive the plaintiff into its custody. The legal basis for the relief sought in the second application was that the state of Connecticut, because of alleged violations of its own court rules and statutes, was barred from surrendering the plaintiff to the custody of New York authorities. In other words, while one of the grounds of the plaintiff's first application was an attack on the demanding state's continuing authority to subject the plaintiff to its penal laws in light of the alleged impact of Connecticut's entry of a nolle prosequi to the fugitive from justice charge, the second application challenges the asylum *164 state's authority to surrender the plaintiff in light of the alleged impact, under the asylum state's rules of practice and statutes, of the entry of a nolle prosequi on the fugitive from justice charge followed by the lapse of time in this case before the asylum state renewed prosecution of the fugitive charge.
The defendant claims that the plaintiff's applications both rely on the same ground under the Sanders v. United States, supra, definition of that term. He asserts that the arguments advanced in both applications assume that the nolle of the fugitive from justice charge constitutes a decision on the merits that extradition is inappropriate. In order, however, to deem the legal claim made in the second application as the equivalent of one made in the first application, we would have to define "ground" in this case as any claim that relies on the entry of the nolle prosequi to challenge the legality of the extradition proceedings.
Such a definition and the defendant's assertion would confuse "ground" with both the legal argument underlying the ground in this case and the factual allegations that form the basis of the underlying legal argument. In the second application a completely different legal effect is being ascribed to the entry of the nolle prosequi. To reiterate, in the first application the entry of the nolle prosequi was alleged to be a decision on the merits of the underlying manslaughter charge in New York which barred the state of New York from receiving the plaintiff; in the new application the nolle and its aftermath were alleged to be a jurisdictional bar to Connecticut's surrender of the plaintiff to New *165 York authorities. In the new habeas corpus application the alleged ground or legal basis for granting the relief sought is that the state of Connecticut is barred from surrendering the plaintiff to the New York authorities; the underlying legal argument supporting this ground is that the entry of the nolle prosequi along with a lapse in the reinstitution of the fugitive from justice charge violates the state of Connecticut's rules of practice and statutes for processing criminal matters so as to create this bar; and the factual allegations involved are, inter alia, the time of the entry of the nolle prosequi and the subsequent reinstitution of the fugitive from justice charge. In other words, on remand for a hearing on his second application the plaintiff would have to show that the nolle and the subsequent actions by the state of Connecticut on the fugitive from justice charge do, in the particular circumstances of this case, violate Connecticut's rules of practice and statutes, which violations in turn serve to bar Connecticut from surrendering the applicant to New York authorities to be sentenced on his New York conviction for manslaughter in the first degree.
The present case is thus distinguishable from the possibilities the Sanders court notes that would not occasion another hearing: identical grounds which are proven by different factual allegations, are supported by different legal arguments, are couched in different language or are varied in immaterial respects. Sanders v. United States, supra, 16. Nonetheless, because of the conceptual difficulties which the parties acknowledge attend this case we include the Sanders court admonition that "[s]hould doubts arise in particular cases as *166 to whether two grounds are different or the same, they should be resolved in favor of the applicant." Id.[6]
In view of our disposition of this case, we need not address the plaintiff's alternative claim that the court's ruling also constituted a violation of the Connecticut constitution. We thus follow the recognized policy of self-restraint and the basic judicial duty to eschew unnecessary determinations of constitutional questions. Pepin v. Danbury, 171 Conn. 74, 88, 368 A.2d 88. See also Rescue Army v. Municipal Court, 331 U.S. 549, 568-73, 67 S. Ct. *167 1409, 91 L. Ed. 1666; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47, 56 S. Ct. 466, 80 L. Ed. 688 (Brandeis, J., concurring). See generally Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962).
There is error, the judgment is set aside and the case is remanded for a hearing consistent with this opinion.
In this opinion the other judges concurred.
NOTES
[1]  The defendant asserts in his brief that bond has been set, but not met.
[2]  The only statutory provision which might be considered to bear upon this question is General Statutes § 52-470 which reads in relevant part: "The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require." By referring exclusively to the duties of the "court or judge hearing any habeas corpus," § 52-470 serves, however, only to delineate the proper scope of a hearing if one is legally required. To determine whether a hearing is, in the first instance, legally required, Practice Book, 1978, § 531 must be considered.
[3]  Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148, is the leading United States Supreme Court case on the subject of whether a second application for habeas corpus relief merits a hearing and its definition of "ground" is utilized. Looking to federal law to support a definition of "ground" in Practice Book, 1978, § 531 is particularly appropriate in this context because the federal constitutional and statutory framework for habeas corpus relief is similar to the one provided by Connecticut's constitution, statutes, and rules of practice, and there is no decision of this court which discusses the scope and applicability of § 531 or its predecessors. The writ of habeas corpus is constitutionally guaranteed by article one, § 9 of the United States constitution; compare article first, § 12 of the Connecticut constitution; but the right to a hearing is statutorily limited by 28 U.S.C. § 2244 which provided in pertinent part at the time of the Sanders decision: "No ... judge shall be required to entertain an application for a writ of habeas corpus... if it appears that the legality of [the] detention has been determined ... on a prior application for a writ of habeas corpus and the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry." (Emphasis added.) It was in the context of formulating basic rules to guide the lower federal courts in determining whether to hear successive habeas corpus actions pursuant to 28 U.S.C. § 2244 and other federal statutes that the Sanders court rendered its definition of "ground."

In 1966, 28 U.S.C. § 2244 was amended to provide in part: "When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United States or a justice or judge of the United States release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ of habeas corpus in behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ." 28 U.S.C. § 2244 (b). This amendment did not in any way restrict the availability of habeas corpus nor was it apparently intended to do so. See Report of the Senate Judiciary Committee, 1966 U.S. Code Cong. & Adm. News., p. 3664. It simply altered the procedures by which a federal district court would determine that an applicant's conduct barred him from a right to be further heard. See Johnson v. Copinger, 420 F.2d 395, 398 (4th Cir.). The Supreme Court in Sanders had recognized that such conduct could serve to bar further hearings. Sanders v. United States, supra, 17-19.
[4]  The court orally stated its reason for denying a hearing on the second application: "I think if you have constitutional claims, they should be raised at the earliest time that is possible to raise them and you can't come in and raise one and then you get denied on one and make the other, and continually raise constitutional questions as they occur to the mind of the defendant or to his counsel and so, therefore, we've had one hearing on this, and I think he should have raised it at the initial time. He didn't do it, and I think he's foreclosed of raising it at this time, and so for that reason I will deny the writ." This statement does not leave the court's rationale for its denial totally free from uncertainty. A possible interpretation is that the phrase "if you have constitutional claims" is the equivalent of "assuming arguendo you have different constitutional claims" and thus no concession has been made that different grounds do necessarily exist.
[5]  Pursuant to General Statutes § 54-46 and Practice Book, 1963, § 2137, the plaintiff is given the opportunity to object to the entry of the nolle prosequi and to demand either an immediate hearing on the underlying charge or its dismissal.
[6]  We are constrained to remark on the defendant's concern that our disposition of this case may open the floodgates to unwarranted successive applications for habeas corpus relief which will needlessly burden the courts of this state with endless litigation. See also Sanders v. United States, 373 U.S. 1, 23, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (Harlan, J., dissenting). We do not share the defendant's pessimism for several reasons. First, the nature of habeas corpus relief indicates that an applicant would normally seek to present all his claims as early as possible in order to be free of the alleged illegal detention. Second, under Practice Book, 1978, § 531, an applicant desirous of a second or successive hearing on the basis that he is alleging a different ground must show that his application does, indeed, involve a different ground, not merely a verbal reformulation of a previous ground, different legal arguments, or different factual allegations. Finally, it has been recognized that "habeas corpus has traditionally been regarded as governed by equitable principles.... Among them is the principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 9 L. Ed. 2d 837. The Sanders court in reiterating this principle added: "Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, to entertain collateral proceedings whose only purpose is to vex, harass, or delay." Sanders v. United States, supra, 18. This court would not afford the trial courts of this state less protection from needless vexation than the United States Supreme Court would grant federal district courts. Full consideration of the merits of the new application can be avoided if there has been an abuse of the writ remedy. Certainly a deliberate bypass of a ground on the first application would constitute one such abuse. Fay v. Noia, supra, 439.


879 F.Supp. 760 (1995)
NALC HEALTH BENEFIT PLAN, Plaintiff,
v.
Vicki LUNSFORD, Defendant/Third-Party Plaintiff,
v.
STATE FARM INSURANCE, Third-Party Defendant.
No. 94-CV-73668-DT.
United States District Court, E.D. Michigan, Southern Division.
March 21, 1995.
*761 *762 John C. Adam, Southfield, MI, Babette A. Ceccotti, New York City, Steven B. Gailbraith, Laura Phillips, Southfield, MI, for plaintiff.
Richard E. Moblo, Novi, MI, for defendant.

ORDER
JULIAN ABELE COOK, Jr., Chief Judge.
On June 5, 1995, the Plaintiff, NALC Health Benefit Plan (NHBP) filed a motion for summary judgment against the Defendant/Third Party Plaintiff, Vicki Lunsford. On the following day, another motion for summary judgment was filed against her by the Third Party Defendant, State Farm Insurance (State Farm). In Lunsford's responsive pleadings, she has expressed her opposition to NHBP's motion in part and to State Farm's motion in its entirety.
For the reasons that have been set forth below, NHBP's motion will be granted. However, State Farm's motion must be denied.

I.
This controversy arises from Lunsford's attempt to obtain replacement insurance benefits from State Farm in the event that she is obligated to reimburse NHBP for the insurance benefits that it had paid to her.
NHBP, a federal employees health benefit plan, is sponsored by the National Association of Letter Carriers and established by contract with the United States Office of Personnel Management pursuant to the Federal Employees Health Benefit Act, 5 U.S.C. § 8901 et seq. (FEHBA). This health benefit plan (Plan) contains a provision which, in general, requires all enrollees to reimburse it with any funds that are subsequently obtained from a third party as a result of a lawsuit, settlement, or otherwise.[1]
On October 21, 1992, Lunsford, while enrolled in the Plan, was injured in an automobile accident. She was also insured through her insurance policy with State Farm at the same time. Following the accident, Lunsford was able to recover (1) $12,704.79 in benefits from NHBP and (2) $20,000 as the result of a settlement from another carrier who had insured the "other driver." Thereafter, NHBP asked Lunsford for a reimbursement of the $12,704.79 that it had paid to her as a result of the October 1992 accident. When she declined NHBP's request, this lawsuit ensued. Lunsford subsequently filed a third party complaint against State Farm whom she contended is obligated to reimburse her for any monies that are paid to NHBP.

II.
Under Rule 56 of the Federal Rules of Civil Procedure, a summary judgment is to be entered if (1) the moving party demonstrates that there is no genuine issue as to any material fact, and (2) the evidence is such that a reasonable jury could find only for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The parties concede that there are no genuine issues of a material fact in this case, leaving only questions of law to be resolved.

A. Lunsford's Obligations to the Plan

i. Preemption of the Plan over Michigan Law

Congress enacted FEHBA "to protect federal employees against the high and unpredictable costs of medical care and to assure that federal employee health benefits are equivalent to those available in the private sector." American Fed'n of Gov't Employees, AFL-CIO v. Devine, 525 F.Supp. 250, 252 (D.D.C.1981).[2] This statute regulates *763 all aspects of federal employee health benefit plans, notwithstanding any incompatible state law provisions. 5 U.S.C. § 8901 et seq. FEHBA states:
The provisions of any contract under this chapter which relate to the nature or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans to the extent that such law or regulation is inconsistent with such contractual provisions.
5 U.S.C. § 8902(m)(1) (emphasis added). Thus, this statute is "the exclusive source of [a federal] employee's compensation rights." Kizas v. Webster, 707 F.2d 524, 536 (D.C.Cir. 1983), cert. denied, 464 U.S. 1042, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984).[3]
By definition, the reimbursement provision within this Plan "relate[s] to the nature or extent of coverage or benefits." Therefore, this reimbursement provision preempts any incompatible state law, including Michigan law, and is enforceable in a court of law.[4]

ii. Amount of Reimbursement

The terms of the FEHBA plans are enforceable as written, in order to "advance[] the federal interest in uniformity and Congress' purposes in enacting the FEHB Act." Medcenters Health Care, Inc. v. Ochs, 854 F.Supp. 589, 594 (E.D.Minn.1993), aff'd, 26 F.3d 865 (8th Cir.1994). Hence, the provision within this Plan, which requires all enrollees to reimburse the NHBP from any third-party proceeds, is legally enforceable.[5]
Lunsford submits that 20 C.F.R. § 10.503(a)-(c) limits the amount of the reimbursement that NHBP can demand from her.[6] However, this statute was enacted pursuant to the federal worker's compensation program which had been established by the Federal Employee's Compensation Act, 5 U.S.C. § 8101 et seq (FECA)  not FEHBA, as she contends. See Ostrowski v. Dep't of Labor, 653 F.2d 229, 230 (6th Cir.1981). Inasmuch as there is no comparable regulation within the FEHBA scheme, and in the absence of any authority which suggests that the FECA regulation applies to FEHBA cases, Lunsford's arguments must be rejected.

*764 B. State Farm's Obligations to Lunsford

i. Coordination of Benefits

State Farm maintains that it, being an excess insurer for Lunsford at the time of the accident, should not be required to pay her primary benefits. State Farm asserts that it will be forced to assume the role of a primary carrier, rather than an excess insurer if this Court adopts Lunsford's position. This argument is without merit.
In 1988, the Michigan Supreme Court determined that those employees, who are subject to a federal plan reimbursement rule, can rely upon their no-fault insurer to make them whole, regardless of whether the federal plan is the primary plan. See Sibley v. DAIIE, 431 Mich. 164, 427 N.W.2d 528 (1988).
In Sibley, the plaintiff filed two claims for the injuries that he sustained as the result of an automobile accident. In his first claim, he obtained monies from his worker's compensation carrier under a FECA plan. However, the Detroit Automobile Inter-Insurance Exchange (D.A.I.I.E.), a Michigan insurance company against whom the plaintiff's second claim had been made, deducted the amount that he had received under the FECA plan on the basis of the provisions of Mich.Comp. Laws § 500.3109(1), which required no-fault carriers to subtract any "benefits provided" from the award under another plan.[7] Faced with this off-set of benefits, the plaintiff challenged this decision by the D.A.I.I.E. in a lawsuit. The court agreed with the plaintiff, holding that the deduction of the monies that he had received under the FECA plan was impermissible because these funds did not constitute "benefits provided," as required by the Michigan statute:
[T]o the extent that the reduction in the automobile insurer's responsibility is from a source that retrieves reimbursement from the injured person's tort recovery, the amount so retrieved should not be deemed "benefits provided" within the meaning of the automobile no-fault act.... Id. at 169, 427 N.W.2d 528. Thus, the effect of Sibley was to declare that any monies, which had been obtained by an aggrieved person under this federal plan and subject to reimbursement, are only temporary benefits and cannot be used to offset the financial obligation of the no-fault carrier.
State Farm submits that Sibley is inapposite to the instant matter, noting that the D.A.I.I.E. had the primary responsibility to pay full benefits to the insured without reduction. Id. However, Sibley is much broader than State Farm has argued. In Sibley, the court redefined the parameters of a "benefit received or provided" under the Michigan "No-Fault Motor Vehicle Liability Act," holding that those benefits, which are reimbursed to a federal plan, are no benefits at all. Id. In fact, a reading of the entire opinion reveals that the main concern of the Sibley court was the effect, if any, of the reimbursement provision on the injured party rather than on the no-fault carrier:
Because the reimbursement here is provided for by federal law, which preempts state law, we cannot ... bar the alternative source (the federal government) from recovering against and from the tort recovery what it paid the injured worker. In fairness, however, in order to prevent a worker injured in an automobile accident from, in effect, paying for his own work loss/medical benefits, we can require the automobile no-fault insurer to repay benefits to that extent, in order to effectuate the underlying policies of the automobile no-fault act.
....
We are persuaded that when the automobile no-fault speaks of benefits "provided," it means benefits permanently provided by alternative sources pursuant to state or federal law.
Because plaintiff was ultimately required to refund the FECA benefits he had received, he was left without compensation for his medical services and lost wages. Therefore, his only recourse *765 for economic damages was to seek payment from his no-fault carrier.
Id. at 170-71, 427 N.W.2d 528 (emphasis added).
State Farm's argument that it was only an excess insurer lacks merit as well. It is common for insurance companies to coordinate benefits with other carriers for the purpose of allocating their respective risks of liability. The coordination of benefits is generally achieved by including "other insurance" clauses in their policies. St. Paul Ins. v. American Home, 444 Mich. 560, 564, 514 N.W.2d 113 (1994). However, such "other insurance" clauses only absolve the carrier from liability when the "other insurance" provides benefits in the manner that is explained by the Michigan Supreme Court:
"[O]ther insurance" clauses fall into three general categories. The effect of each in the event of concurrent coverage is to reduce the insurer's loss. They are:
1. A pro-rata clause, which purports to limit the insurer's liability to a proportionate percentage of all insurance covering the event;
2. An escape or no-liability clause, which provides that there shall be no liability if the risk is covered by other insurance; and
3. An excess clause, which limits the insurer's liability to the amount of loss in excess of the coverage provided by the other insurance.
Id. at 565, 514 N.W.2d 113 (quoting Federal Kemper Ins. Co., Inc. v. Health Ins. Administration, Inc., 424 Mich. 537, 542, 383 N.W.2d 590 (1986)) (emphasis added).
The coordination of benefits upon which State Farm relies in this case is available only to the extent that the risk is covered or provided in the "other insurance." Inasmuch as Sibley has held that temporary benefits do not permanently provide for the risk of an injury or loss when there is a third-party recovery, the FEHBA plans, and other similar federal plans, do not constitute "other insurance" for the purpose of coordination of benefits to the extent that a reimbursement of funds is a legally enforceable obligation. Accordingly, State Farm's "excess insurance" argument must fail because no permanent coverage was provided by the health benefit plan.

ii. Statute of Limitations

State Farm also advances the position that Lunsford's claim is barred by the statute of limitations of the Michigan "No Fault Motor Vehicle Liability Act," Mich.Comp. Laws § 500.3145, which requires an insured to initiate legal proceedings for claims under the insurance policy within one year of the date of the loss.[8] State Farm maintains that this statute precludes Lunsford from pursuing this claim, noting that she had incurred her medical bills prior to October 21, 1993, more than one year from the date of the filing of this lawsuit.
State Farm's position must be rejected. In Sibley, the Michigan Supreme Court refused to apply the state "No Fault Motor Vehicle Liability Act" to those circumstances which, like the case at bar, were seemingly covered by the statute. The court, acknowledging that the no-fault scheme had neither been anticipated nor intended to regulate the conflicts in coverage which arose from the operation of federal plans, declared:

*766 We are confronted here with legislation conferring on the payor of worker's compensation benefits a right of complete recovery out of the worker's tort recovery  a situation not specifically dealt with or contemplated by our Legislature when it crafted our no-fault scheme.
Sibley, 431 Mich. at 169, 427 N.W.2d 528. Thus, it is clear to this Court that, when drafting the Michigan "No Fault Motor Vehicle Liability Act," including its statute of limitations, the state Legislature neither anticipated nor considered the fact that, due to the federal scheme of reimbursement, federal employees would have no standing to seek or sue their no-fault carriers for benefits until they had recovered and reimbursed the federal plans with their third-party proceeds.
Moreover, the application of the Michigan "No Fault Motor Vehicle Liability Act" in the instant controversy would defeat the goal of the Michigan Supreme Court of "prevent[ing] a worker injured in an automobile accident from, in effect, paying for his own work loss/medical benefits." Id. at 171, 427 N.W.2d 528. Thus, the applicability of the one year statute of limitations provision within the Michigan "No Fault Motor Vehicle Liability Act," to the situation in this case must be rejected.

III.
Based on the foregoing, (1) NHBP's Motion for Summary Judgment is granted and (2) State Farm's Motion for Summary Judgment is denied.
IT IS SO ORDERED.
NOTES
[1]  This health benefit plan also contains a subrogation provision which entitles NHBP to pursue any claims that its enrollees may have against third parties for the recovery of accident-related damages.
[2]  FEHBA is administered by the United States Office of Personnel Management (OPM). Kobleur v. Group Hosp. & Medical Serv., 954 F.2d 705, 707 (11th Cir.1992).
[3]  FEHBA's broad preemptive effect has been acknowledged by a number of courts. See Burkey v. Government Employees Hosp. Ass'n, 983 F.2d 656 (5th Cir.1993); Hayes v. Prudential Ins. Co. of America, 819 F.2d 921 (9th Cir.1987), cert. denied, 484 U.S. 1060, 108 S.Ct. 1014, 98 L.Ed.2d 980 (1988); Myers v. United States, 767 F.2d 1072 (4th Cir.1985); Tackitt v. Prudential Ins. Co., 758 F.2d 1572 (11th Cir.1985); Fodera v. State Farm Ins., No. 92-CV-73639, slip op. at 2-3 (E.D.Mich. June 21, 1993); Citizens Ins. Co. v. APWU Health Plan, No. 91-CV-106, slip op. at 3 (W.D.Mich. December 13, 1991); LaBelle v. Blue Cross & Blue Shield United Wisconsin, 548 F.Supp. 251 (W.D.Wisc.1982); Sibley v. DAIIE, 431 Mich. 164, 427 N.W.2d 528 (1988).
[4]  Initially, Lunsford refused to comply with NHBP's demand for reimbursement, claiming that the Michigan "No Fault Motor Vehicle Liability Act," Mich.Comp.Laws § 500.3116, precluded it from subtracting any benefits from her as the result of a third party tort recovery. However, with recognition that the federal law in this area preempts any incompatible state law provisions, she has now withdrawn this objection.

State Farm contends that its policy and NHBP's policy are inconsistent because each of them contain coordination of benefits clauses. Thus, State Farm posits that any award of benefits to Lunsford should be shared equally with the NHBP. This argument is without merit in light of federal preemption.
[5]  This health benefit plan states in pertinent part as follows:

If you or your covered dependent suffers an injury or illness through the act or omission of another, the Plan requires that it be reimbursed for benefits paid by the Plan in an amount not to exceed the amount of recovery, or that it be subrogated to your (or your dependent's) rights to the extent the benefits paid, including the right to bring suit. All recoveries from a third party (whether by lawsuit, settlement or otherwise) must be used to reimburse the Plan for benefits paid. The Plan's share of the recovery will not be reduced because you or your dependent do not receive the full amount of damages claimed, unless the Plan agrees in writing to a reduction.
[6]  20 C.F.R. § 10.503(a)-(c) allows federal employees to (1) offset the gross amount that is recovered from third parties by the amount of attorney's fees and costs incurred, and (2) retain one-fifth of the net amount of recovery. Relying upon this statute, it is Lunsford's position that she need only reimburse $9,905.43 to NHBP.
[7]  Mich.Comp.Laws 500.3109(1) states that "benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury."
[8]  Mich.Comp.Laws § 500.3145 provides as follows:

An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor's loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced. The notice of injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefor, or by someone on his behalf. The notice shall give the name and address of the claiming and indicate in ordinary language the name of the person injured and the time, place and nature of his injury.


280 F.2d 95
UNITED STATES of America ex rel. Charles WILLIAMS, Relator-Appellant,v.Walter H. WILKINS, Warden, Attica Prison, and The People ofthe State of New York, Appellees.
No. 335, Docket 26081.
United States Court of Appeals Second Circuit.
Argued May 12, 1960.Decided June 7, 1960.

Charles Williams, pro se.
George K. Bernstein, Asst. Atty. Gen. of the State of New York, New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, New York City, Paxton Blair, Sol.  Gen., Albany, N.Y., and Irving Galt, Asst. to Sol.  Gen., New York City, on the brief), for appellees.
Before CLARK, MOORE, and FRIENDLY, Circuit Judges.
PER CURIAM.

1
The relator-appellant attacks his state conviction as a second felony offender in 1942, because the indictment alleged his prior conviction and it was thus brought to the attention of the jury to his asserted prejudice.  He did not appeal his conviction, but in 1948, and again in 1951, he sought relief in a state county court by way of motions in the nature of coram nobis, and in 1959 by writ of habeas corpus, wherein the Appellate Division denied leave to appeal in forma pauperis.  People of State of New York ex rel. Williams v. Martin, 9 A.D.2d 635, 193 N.Y.S.2d 607.  Appellant did not press these cases further.  The practice followed in appellant's indictment here was expressly approved in People v. De Santis, 305 N.Y. 44, 110 N.E.2d 549, certiorari denied 345 U.S. 944, 73 S.Ct. 839, 97 L.Ed. 1370.  But in 1957 the legislature enacted N.Y.Code Crim.Proc. 275-b, providing that the indictment should not allege prior convictions.  See also the 1959 amendments to id. 482, 717, upon recommendation of the Law Revision Commission, 1959 McKinney's Sess.Laws of N.Y., pp. 1625- 1630.  Hence the present practice is to allege and prove such prior convictions only following a conviction.

2
The question raised appears to be one of state practice, presenting no issue of federal due process.  Gryger v. Burke, 334 U.S. 728, 731, 68 S.Ct. 1256, 92 L.Ed. 1683; Vanderwyde v. Denno, D.C.S.D.N.Y., 113 F.Supp. 918, affirmed 2 Cir., 210 F.2d 105, certiorari denied 347 U.S. 949, 74 S.Ct. 646, 98 L.Ed. 1096.  Moreover, relator has failed to exhaust state remedies and thus is barred from relief here under 28 U.S.C. 2254.  United States ex rel. Cuomo v. Fay, 2 Cir., 257 F.2d 438, certiorari denied 358 U.S. 935, 79 S.Ct. 325, 3 L.Ed.2d 307.  And since New York will not now consider the contention, as it was not raised on direct appeal, People v. Noia, reported sub nom.  People v. Caminito, 3 N.Y.2d 596, 170 N.Y.S.2d 799, 148 N.E.2d 139, certiorari denied Noia v. People of State of New York, 357 U.S. 905, 78 S.Ct. 1149, 2 L.Ed.2d 1156, it is outside the reach of the federal writ.  Daniels v. Allen, reported sub nom.  Brown v. Allen, 344 U.S. 443, 482-485, 73 S.Ct. 397, 97 L.Ed. 469.  For each of these several reasons the order below is

3
Affirmed.


Court of Appeals
of the State of Georgia

                                       ATLANTA,____________________
                                                December 08, 2016

The Court of Appeals hereby passes the following order:

A17A0729. DAVID WAYNE GALLEMORE III v. WANDA WILLIS WHITE.

      The trial court issued an order finding David Wayne Gallemore, III, in
contempt for failing to make child support payments under a final judgment and
decree of divorce. In Case No. A16D0464, Gallemore filed an application for
discretionary review in this Court, and this Court transferred the application to the
Supreme Court, which granted the application. Gallemore has also filed the instant
direct appeal in this Court.
      In transferring Gallemore’s application to the Supreme Court, we explained
that “an appeal from the judgment in a contempt action seeking to enforce any portion
of the divorce decree other than child custody is ancillary to divorce and alimony and
falls within [the Supreme] Court’s jurisdiction over divorce and alimony cases.”
(Punctuation omitted.) Rogers v. McGahee, 278 Ga. 287, 288 (1) (602 SE2d 582)
(2004). In this direct appeal, Gallemore is seeking review of the same trial court
order as in his application. Accordingly, this appeal also falls within the Supreme
Court’s jurisdiction, and this appeal is hereby TRANSFERRED to the Supreme Court
for disposition.
Court of Appeals of the State of Georgia
       Clerk’s Office, Atlanta,____________________
                                 12/08/2016
       I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
       Witness my signature and the seal of said court
hereto affixed the day and year last above written.

                                                , Clerk.


                                                                                07/30/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs June 20, 2018

                 STATE OF TENNESSEE v. JAMES P. JONES

                Appeal from the Criminal Court for Sumner County
                    No. 322-2013       Dee David Gay, Judge
                    ___________________________________

                           No. M2017-01790-CCA-R3-CD
                       ___________________________________

James P. Jones, Defendant, was convicted of several counts of theft and aggravated
burglary. The trial court sentenced Defendant to a twelve-year probationary sentence. A
violation of probation warrant was later issued against Defendant. After a hearing, the
trial court revoked Defendant’s probation. Defendant now timely appeals the trial court’s
decision and argues that he was denied the right to counsel during the revocation hearing.
Because we conclude that Defendant did not effectively waive or forfeit his right to
counsel, we reverse the judgment of the trial court and remand this case for appointment
of counsel and a new probation revocation hearing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
                                  and Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

James P. Jones, Memphis, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Ray Whitley, District Attorney General; and Tara Wyllie and C. Ronald
Blanton, Assistant District Attorneys General, for the appellee, State of Tennessee.
                                            OPINION

                           I. Factual and Procedural Background

       On September 12, 2013, Defendant pled guilty to one count of theft of property
under the value of $500, five counts of aggravated burglary, and four counts of theft of
property between the value of $1,000 and $10,000.1 Defendant received a total effective
sentence of twelve years, which the trial court suspended to supervised probation. On
September 3, 2014, the trial court filed a violation of probation warrant against Defendant
based on a citation for simple possession of marijuana and possession of drug
paraphernalia. After a probation hearing, the trial court revoked Defendant’s probation
and placed his sentence into effect. On December 3, 2014, Defendant filed a motion to
reconsider the sentence. On June 22, 2015, the trial court ordered Defendant to serve his
sentence in incarceration until June 30, 2015; thereafter, Defendant’s sentence was
suspended to supervised probation.2

       In 2017, Defendant pled guilty to domestic assault and received a sentence of
eleven months and twenty-nine days that was suspended to probation. The trial court
issued a second violation of probation warrant that alleged that Defendant violated rules
one and fourteen of the conditions of his release based on his arrest and charge of
domestic assault.

       At the probation violation hearing, the following exchange occurred:

             [APPOINTED COUNSEL]: Judge, on his way up is my client,
       [Defendant]. I regret that I’m going to have to make an oral motion for
       permission to withdraw in light of [Defendant’s] conduct, making it
       unreasonably difficult for me to represent him.

              THE [TRIAL] COURT: [Defendant], you know, you are entitled to
       appointed counsel under our constitution, but you’re not entitled to the
       appointed counsel of your choice. It doesn’t speak well for you if the
       public defender has to withdraw because of circumstances that he really
       can’t get into because of ethical issues, but I can read between the lines and

       1
          The record contains ten judgment forms from case number 322-2013, for counts two through six
and counts eight through twelve. It is unclear from the appellate record how counts one and seven were
resolved in this case.
       2
          The trial court’s order states that Defendant was to serve his sentence on community
corrections. We assume that Defendant was on supervised probation but the supervision was conducted
by community corrections.
                                                -2-
can tell you it’s pretty serious if this happens. So what in the world is
going on with you?

       [DEFENDANT]: I don’t feel [that] [appointed counsel] is
representing me, Your Honor.

       THE [TRIAL] COURT: Okay. Generals, do we [know if] was there
an offer made?

       [APPOINTED COUNSEL]: Judge, there’s no offer in this case. The
violation warrant refers to a new charge. He was charged with the felony of
aggravated assault. He pled that out in general sessions to domestic assault
and, as I said, the State has made no offer.

       THE [TRIAL] COURT: Okay. Do you want to represent yourself?
That’s what is going to happen.

      [DEFENDANT]: Yes, sir.

      THE [TRIAL] COURT: I’ve given you -- so what are you going to
do?

       [DEFENDANT]: I asked [appointed counsel] for a sentencing -- or a
violation hearing and he’s going to tell me no.

       THE [TRIAL] COURT: No. That’s something that you are -- don’t
understand. Do you want a probation violation hearing? We’ll get one.
[Appointed counsel], I’ll allow you to withdraw. We’ll have one and you’ll
represent yourself.

      [DEFENDANT]: Yes, sir.

        THE [TRIAL] COURT: Generals, you all might want to make a note
of that. We will need all our witnesses here.

       General Blanton, this is [Defendant]. [Appointed counsel] had to
withdraw. I find it very unusual that this has to happen. I’m not going to
appoint another attorney for [Defendant]. He’s entitled to have appointed
counsel, not the appointed counsel of his choice. If he can’t get along with
attorneys, then that is his problem. We’ll reset this, General Blanton, to

                                   -3-
       June 12th. If you’ll have all the witnesses here, and he’s representing
       himself.

       The trial court continued Defendant’s probation revocation proceeding until June
12, 2017. At the hearing, the trial court admitted certified copies of the affidavit of the
violation of probation, the affidavit of complaint, and the guilty plea form. Defendant
gave the following sworn testimony:

              Your Honor, I understand, you know, this is my second violation,
       but after the first violation, I was out for [eighteen] months. I completed
       nine months of MRT classes. I’m working on my GED.

              The only reason -- I went to Vol State and I took the pre-test, and
       I’m supposed to go back for the regular test, but I caught the charge and
       I’ve been in jail since so I couldn’t take the regular test. In jail, I’m doing
       the GED test, trying to get my GED.

               Your Honor, I have a full-time job. They told me when I get out of
       jail I can come back to my job.

              The domestic assault, Your Honor, I’m the one who called the police
       because I was trying to get out of the house. I was trying to get my stuff to
       get out of the house, but when I went to court, I was going to take it to trial,
       but they told me if I take it to trial they would charge my wife with a felony
       and they were going to violate my probation anyway.

             So in order to keep my wife out of jail, I took the charge. I didn’t
       want us both to be in jail and then our kids left without somebody. So I just
       went ahead -- you know, as stupid as it sounds, I went ahead and took a
       charge anyway, knowing I was violating my probation.

       Defendant understood that he had violated the terms of his probation, and he
agreed that he “should have some type of punishment.” Defendant asserted that he did
not assault his wife. The trial court reiterated the facts underlying Defendant’s domestic
assault conviction from the arrest warrant and affidavit.

      Tessa Alyssa Jones, Defendant’s wife, testified that, on December 22, 2016, she
and Defendant argued because she “told him he couldn’t go to the wedding with his mom
because she was a manipulator.” Mrs. Jones stated that she did not “really remember
much after that” because she was not taking medication for her mental health issues.
Mrs. Jones stated that she learned that Defendant had been arrested for domestic assault
                                            -4-
from her son later that evening. She testified that she went to general sessions court with
Defendant and that the Assistant District Attorney assigned to Defendant’s case told her
that, if she changed her story, the State would prosecute her for filing a false report.
Following Mrs. Jones’ testimony, the trial court continued the proceeding so that the
State could subpoena the law enforcement officer that responded to Defendant and Mrs.
Jones’ house on December 22, 2016.

       On August 7, 2017, Officer Rich Evans testified that he worked as a master
patrolman for the Gallatin Police Department. On December 22, 2016, Officer Evans
responded to a domestic call at Defendant and Mrs. Jones’ residence. Defendant
informed Officer Evans that he and his wife had argued over going to a wedding.
Defendant stated that he had attempted to leave the residence, but Mrs. Jones “blocked
his path” and “sprayed him with a deodorizer.” Officer Evans took written statements
from both Defendant and Mrs. Jones. Mrs. Jones’ statement set out the following
allegations:

             Me [sic] and [Defendant] got in to an argument because I told him
      he couldn’t go to a wedding with his mom tomorrow[.] [H]e got upset and
      told me [that] he hoped that I died[,] called me trash[,] told me he would
      kill me[,] and at some point he picked up a knife and had it to my throat. I
      also got hit in the face. After that, he p[o]unded my cousin[’]s front door
      and hit her screen door and we was in the hall way [sic], and he was
      screaming and I got shoved and my basket and my cousin[’]s picture got
      broke [sic]. In my bedroom, I got choked and shoved into a tote. He came
      back in to the living[ ]room with a bag of his [clothes] and thr[e]w them
      onto the floor and got in my face again and choked me with my shirt[.]
      [S]o I kicked him in his balls and told my son to call the police, but
      [Defendant] called them instead.

Officer Evans then arrested Defendant. Officer Evans observed a red line across Mrs.
Jones’ throat, which was consistent with Mrs. Jones’ statement that Defendant held a
knife to her throat.

       After the State concluded its direct examination of Officer Evans, Defendant
requested that the trial court appoint counsel to represent him. The following exchange
occurred:

            [DEFENDANT]: I’m not okay to proceed without counsel, Your
      Honor.

                                           -5-
             THE [TRIAL] COURT: Well, then, I told you what’s going to
      happen. You had counsel, and in my opinion one of the best that you could
      have, [who] knows more about probation violations than any attorney here,
      and you were entitled to have an appointed attorney and I appointed an
      attorney. Under the United States Constitution, you’re not entitled to the
      attorney of your choice. Your motion will be denied. You had an attorney.
      You may proceed.

              [DEFENDANT]: Well, Your Honor, [appointed counsel] told me
      that I was not allowed a violation hearing.

             THE [TRIAL] COURT: You may ask questions of him.

       On cross-examination, Officer Evans stated that, when he arrived at the residence,
he observed Defendant standing outside. Officer Evans agreed that Defendant looked
like “something [had been] done” to Defendant. Officer Evans stated that Mrs. Jones did
not inform him that she had mental health issues.

       Defendant called Mrs. Jones to testify again. She stated that Defendant was not
violent towards her during the four years that she had known him. Mrs. Jones explained
that she was prescribed Lexapro and Lamictal and that, in 2016, her insurance stopped
paying for her Lamictal prescription, and she began hallucinating. Mrs. Jones testified
that she was treated by a psychiatrist at the Mental Health Cooperative and that she
harmed herself. When Mrs. Jones realized that Defendant had been arrested for the
events of December 22, 2016, she paid Defendant’s bond.

      Defendant took the stand and acknowledged that he had previously violated the
terms of his probation because he failed a drug test and “caught a marijuana charge.”
The following exchange then occurred between Defendant and the trial court:

              [DEFENDANT]: I got into an argument with my wife and I called
      the police to avoid a situation from happening. I called the police to avoid
      the situation.

            My wife was off her psych meds. She is known to be a self-harmer.
      And I was out on the driveway for 20 minutes waiting for the police.

             If I hit my wife, Your Honor, she would not be with me. Like she
      told you, she left her last husband for those same reasons. I understand it
      was wrong for me to take the charge when I didn’t do it. I know I violated
      my probation, and I need time to -- you know, if you give me some time, I
                                          -6-
       understand that. I’m just asking you not to put me in effect and make me
       serve a 12.

              THE [TRIAL] COURT: Why should I believe you, sir, when you
       lied under oath to the general sessions judge in pleading guilty? Why in the
       world should I believe you when you lied in court?

              [DEFENDANT]: Your Honor, I did not lie in court. I took the
       advice of my attorney. My attorney told me to take the plea deal.

              THE [TRIAL] COURT: Did you lie when you said that you were
       guilty of that charge?

                 [DEFENDANT]: I took the advice of my attorney, Your Honor.

                 THE [TRIAL] COURT: Did you lie when you said that you were
       guilty?

             [DEFENDANT]: I guess that’s one way of looking at it, Your
       Honor.

                 THE [TRIAL] COURT: So the answer is yes.

       The trial court stated that it did “not place much confidence in [Defendant’s]
version or [Mrs. Jones’] version [of the domestic assault] under the circumstances[.]”
The trial court found that Defendant violated the terms of his probation by pleading guilty
to domestic assault. The trial court revoked Defendant’s probation and ordered
Defendant to serve his sentence in the Department of Correction. Defendant now timely
appeals the trial court’s decision.

                                       II. Analysis

       On appeal, Defendant argues that he was deprived of counsel during his probation
revocation hearings. He also asserts that the trial court erred in determining that he had
violated the terms of his probation because the victim in the underlying guilty plea
recanted her testimony. The State asserts that Defendant knowingly waived his right to
counsel and that it was within the trial court’s discretion to determine that Defendant
violated the terms of his alternative sentence.

       “Although the right to counsel is guaranteed in criminal cases, the right to counsel
at a revocation hearing is not constitutionally guaranteed.” State v. Jerry N. Eldridge,
                                           -7-
No. M2004-01080-CCA-R3-CD, 2006 WL 359665, at *4 (Tenn. Crim. App. Feb. 16,
2006) (citing Gagnon v. Scarpelli, 411 U.S. 778, 789-90 (1973); Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975); Young v. State, 539 S.W.2d 850, 854 (Tenn. Crim. App.
1976)), no perm. app. filed; see also State v. Nicholas Goff, No. W2005-02233-CCA-R3-
CD, 2006 WL 2689689, at *4, 6 (Tenn. Crim. App. Sept. 20, 2006), no perm. app. filed.
However, defendants have a statutory right to representation at probation revocation
hearings. Tenn. Code Ann. § 40-35-311(b); see also State v. Merriweather, 34 S.W.3d
881, 884-85 (Tenn. Crim. App. 2000). Further, Tennessee Rule of Criminal Procedure
44 provides that “[e]very indigent defendant is entitled to have assigned counsel in all
matters necessary to the defense and at every stage of the proceedings, unless the
defendant waives counsel.” Tenn. R. Crim. P. 44(a). Before a defendant can validly
waive his right to counsel, the trial court shall “advise the accused in open court of the
right to the aid of counsel at every stage of the proceedings” and “determine whether
there has been a competent and intelligent waiver of such right by inquiring into the
background, experience, and conduct of the accused, and other appropriate matters.”
Tenn. R. Crim. P. 44(b)(1). A valid waiver of the right to counsel must be in writing and
on the record. Tenn. R. Crim. P. 44(b)(2)-(3).

         In addition to affirmatively waiving the right to counsel, a defendant can implicitly
waive or forfeit the right to counsel. See State v. Carruthers, 35 S.W.3d 516, 547 (Tenn.
2000); see also State v. Holmes, 302 S.W.3d 831, 840 (Tenn. 2010). Our supreme court
has held that “an indigent criminal defendant may implicitly waive or forfeit the right to
counsel by utilizing that right to manipulate, delay, or disrupt trial proceedings.”
Carruthers, 35 S.W.3d at 549. “[A]n implicit waiver may appropriately be found, where
. . . the record reflects that the trial court advises the defendant the right to counsel will be
lost if the misconduct persists and generally explains the risks associated with self-
representation.” Id. Thus, “compared to an affirmative waiver expressed through words,
an implicit waiver is presumed from the defendant’s conduct after he has been made
aware that his continued misbehavior will result in the dangers and disadvantages of
proceeding pro se.” Holmes, 302 S.W.3d at 840. In contrast, a defendant may forfeit his
right to counsel when he:

       engages in “extremely serious misconduct,” or engages in an “egregious
       manipulation” of the right to counsel “so as to delay, disrupt, or prevent the
       orderly administration of justice.” Whether a defendant engages in some
       form of conduct that justifies a ruling of forfeiture may generally be
       determined only after an evidentiary hearing at which the defendant is
       present and permitted to testify. The State bears the burden of establishing
       that the defendant committed such actions as to justify a forfeiture. Factors
       relevant to the trial court’s consideration include (1) whether the defendant
       has had more than one appointed counsel; (2) the stage of the proceedings,
                                              -8-
       with forfeiture “rarely . . . applied to deny a defendant representation during
       trial”; (3) violence or threats of violence against appointed counsel; and (4)
       measures short of forfeiture have been or will be unavailing.

Id. at 839 (internal citations omitted).

        “The trial court’s action in matters regarding the appointment and relief of counsel
will not be set aside on appeal unless an abuse of discretion is shown.” State v. Huskey,
82 S.W.3d 297, 305 (Tenn. Crim. App. 2002) (citing State v. Rubio, 746 S.W.2d 732, 737
(Tenn. Crim. App. 1987)). The determination of whether a defendant has waived his
right to counsel and exercised his right of self-representation is a mixed question of law
and fact. State v. Hester, 324 S.W.3d 1, 29 (Tenn. 2010). This court reviews mixed
questions of law and fact de novo, with a presumption that the trial court’s findings of
fact are correct. Id. at 29-30 (citing Holmes, 302 S.W.3d at 837).

      The State points to State v. Kenneth Shane Story, No. M2005-02281-CCA-R3-CD,
2006 WL 2310534, at *5-6 (Tenn. Crim. App. Aug. 9, 2006), perm. app. denied (Tenn.
Dec. 27, 2006), to support its assertion that the defendant effectively waived his right to
counsel. The pertinent facts in Kenneth Shane Story are the following:

       [T]he [d]efendant appeared pro se at the violation of probation hearing. At
       the outset of the hearing the trial court stated, “Mr. Story, your hearing on a
       Violation of Probation is today. You were to hire a lawyer. Have you done
       so?” After the [d]efendant responded that he was not able to obtain a
       lawyer, the Court stated, “All right, you just have a seat right at that table
       there.”

Id. at *1. The trial court later revoked the defendant’s probation. Id. In the opinion
affirming the trial court’s judgment, this court noted that “the more prudent rule is to
appoint counsel in each revocation hearing where a defendant is indigent and seeks
counsel.” Id. at *5 (citing Gagnon, 411 U.S. at 790). This court concluded the
following:

               In the case under submission, the trial court did not err by not
       appointing the [d]efendant counsel at the revocation hearing. Furthermore,
       nothing in the record indicates that the [d]efendant was unaware of a need
       for counsel. In fact, the trial court reminded the [d]efendant that he was to
       hire a lawyer and asked if he had done so, and the [d]efendant responded
       that he was not able to obtain a lawyer. Clearly, the [d]efendant knew he
       should or could obtain counsel. The [d]efendant is not entitled to relief on
       this issue.
                                            -9-
Id. We conclude that this case is not controlling over the current facts, where Defendant
was appointed counsel and counsel withdrew due to an unknown conflict with counsel.
Further, we decline to follow this precedent because it does not follow the mandates of
Tennessee Rule of Criminal Procedure 44.

        In State v. Mark Stephen Williams, No. E2015-01393-CCA-R3-CD, 2016 WL
3704664, at *1 (Tenn. Crim. App. July 6, 2016), no perm. app. filed, this court addressed
whether the defendant validly waived his right to counsel at a probation violation hearing.
At the hearing, the trial court asked the defendant whether he understood that he had the
right to representation and whether the defendant wanted counsel. Id. The defendant
said “No, sir.” Id. This court noted that (1) “there was not a written waiver of
counsel[,]” (2) “the trial court did not engage in an inquiry into the competence and
intelligence of the defendant’s waiver of counsel[,]” and (3) the trial court “did not
inquire as to the defendant’s ‘background, experience, and conduct,’ . . . or apprise the
defendant of the consequences of waiving his right to counsel.” Id. at *3 (citing Tenn. R.
Crim. P. 44(b)(1)(B)). Thus, this court remanded the case for appointment of counsel.
Id. We will follow this court’s precedent in Mark Stephen Williams because it upholds
the mandatory requirements of Tennessee Rule of Criminal Procedure 44.

        Here, there is no written waiver of Defendant’s right to counsel in the record. As
noted above, Tennessee Rule of Criminal Procedure 44(b)(2) requires a written waiver.
Additionally, the trial court did not “determine whether there has been a competent and
intelligent waiver of such right by inquiring into the background, experience, and conduct
of the accused, and other appropriate matters.” Tenn. R. Crim. P. 44(b)(1). Thus,
Defendant did not affirmatively waive his right to counsel. We also conclude that
Defendant did not implicitly waive or forfeit his right to counsel. The trial court did not
advise Defendant that he could lose his representation with continued misconduct and did
not explain the risks associated with self-representation. See Carruthers, 35 S.W.3d at
549. Additionally, there is no evidence that Defendant acted so egregiously as to warrant
the forfeiture of counsel and the trial court did not make any findings that Defendant’s
conflict with counsel was designed to delay or manipulate the probation revocation
proceedings. See State v. James Richardson Reece, No. M2011-01556-CCA-R3-CD,
2013 WL 1089097, at * 20 (Tenn. Crim. App. Mar. 14, 2013) (concluding that the
defendant did not forfeit the right to counsel because “the trial court did not make any
findings that defendant’s behavior was calculated to manipulate, disrupt, or delay trial or
obstruct justice”), perm. app. denied (Tenn. June 17, 2013). Because we conclude that
Defendant did not effectively waive his right to counsel, we reverse the judgment of the
trial court and remand for appointment of counsel and a new probation revocation
hearing. See Mark Stephen Williams, 2016 WL 3704664, at *3 (reversing and remanding

                                          - 10 -
the case for appointment of counsel because the defendant’s waiver of the right to
counsel at his probation hearing was ineffective).

                                  III. Conclusion

       After a thorough review of the facts and applicable case law, we reverse the
judgment of the trial court and remand the case for appointment of counsel and a new
probation revocation hearing.

                                          ____________________________________
                                          ROBERT L. HOLLOWAY, JR., JUDGE

                                       - 11 -


546 F.2d 418
Pultrone, Appeal of
No. 75-1748
United States Court of Appeals, Third Circuit
10/13/76

1
E.D.Pa.

AFFIRMED


637 F.Supp. 741 (1986)
Wanda L. WOOLRIDGE, Plaintiff,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
Civ. A. No. 2:85-0795.
United States District Court, S.D. West Virginia, Charleston Division.
June 11, 1986.
Roger D. Forman, Charleston, W.Va., for plaintiff.
Gary E. Pullin, U.S. Atty., S.D. W.Va., Charleston, W.Va., for defendant.

ORDER
HADEN, Chief Judge.
On March 3, 1986, Plaintiff filed timely objections to the Report-Recommendation of the Honorable Jerry D. Hogg, Magistrate, asserting that Magistrate Hogg would in his recommendation affirm the denial of benefits on the basis that there was no evidence to show impairments prior to December 31, 1982, the date of the Plaintiff's last employment. Counsel assails this conclusion as error in that Plaintiff's treating physician opined that the Plaintiff was disabled by her respiratory condition since 1980, and prior to December 31, 1982. (Tr. 374.)
The legal rule is that the Secretary is not bound by the opinion of a claimant's treating physician, but such opinion is entitled to great weight because it reflects an *742 expert judgment based upon a continuing observation of the Plaintiff's condition over a prolonged period of time. Consequently, such opinion of a treating physician may be disregarded only if there is persuasive contradictory evidence. Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir.1983); Oppenheim v. Finch, 495 F.2d 396 (4th Cir. 1974); Vitek v. Finch, 438 F.2d 1157 (4th Cir.1971). Specifically, the Plaintiff assails the Magistrate's decision as "refusing to consider the testimony and Dr. Milliner's report as it relates back to 1982 and times prior," as required by Moore v. Finch, 418 F.2d 1224 (4th Cir.1969).
In this case, the Magistrate and the Secretary before him clearly considered the opinion of Dr. Milliner, but chose to ignore it as not being supported by the evidence in the case. The scenario is as follows: Dr. Milliner in fact did not treat the Plaintiff prior to December 31, 1982, but after Plaintiff's counsel asked him to render an opinion as to whether her respiratory condition preexisted December 31, 1982. The record reveals that Dr. Milliner first saw the Plaintiff on August 20, 1984. (Tr. 356.) Upon the request of Plaintiff's counsel, Dr. Milliner then took a further history from the Plaintiff in which she supplied to him alleged factual incidents of dizziness due to respiratory conditions and other conditions and certain episodes requiring treatment prior to 1982. No medical or other record of that treatment otherwise appears in the evidence of this case. Likewise, at hearings before the administrative law judge, the Plaintiff never offered any testimony to support the history purportedly given by her to her treating physician relating to the onset of her condition. (Tr. 30-65.) In fact her testimony contradicted the alleged history given Dr. Milliner. She related no unconsciousness or trips to emergency rooms for such ailments in 1979 or 1980. She stated that her problems were related to a temporary low blood count. (Tr. 58.) Her history to Dr. Milliner is also inconsistent with earlier histories given by the Plaintiff. (Tr. 159, 207, 233.) In short, Dr. Milliner's history in response to Plaintiff's counsel's inquiry finds no support in the record.
The medical testimony and opinion based thereon taken and rendered by Dr. Milliner were properly given no consideration by the Magistrate, even though they came from a "treating" physician. The evidence in the form offered is pure hearsay and does not satisfy the requirements of admissibility under Rule 803(4), Federal Rules of Evidence. Subsequent history taken by Dr. Milliner was not for the purposes of treatment or diagnosis but rather done to supply a critical evidentiary requirement in support of Plaintiff's claim for benefits under the Act. In other words, it was prepared solely for the purposes of this litigation. Since the doctor's opinion has no evidentiary support in the record and is, in fact, contradicted by the record, it properly was not considered by the Magistrate or Secretary in their conclusions to deny benefits.
Consequently, upon the Court's de novo review of the record in this case and giving consideration to the objections raised by the Plaintiff to the Report-Recommendation of the Magistrate, the Court overrules the objections and affirms the Magistrate's decision by issuing a final order denying benefits.