Helton v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: September 18, 1997
• Docket: 03C01-9608-CR-00320
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED MAY 1997 SESSION September 18, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk DARRELL E. HELTON, ) ) No. 03-C-01-9608-CR-00320 APPELLANT, ) ) Hawkins County v. ) ) James E. Beckner, Judge STATE OF TENNESSEE, ) ) (Post-Conviction) APPELLEE. )

FOR THE APPELLANT: FOR THE APPELLEE:

Gerald T. Eidson John Knox Walkup 205 Highway 66 South Attorney General & Reporter Rogersville, TN 37857 500 Charlotte Avenue Nashville, TN 37243-0497

Janis L. Turner Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

C. Berkeley Bell, Jr. District Attorney General 109 South Main Street, Suite 501 Greeneville, TN 37743

J. Douglas Godbee Assistant District Attorney General Hawkins County Courthouse Rogersville, TN 37857

OPINION FILED: ______________________________

AFFIRMED

Joe B. Jones, Presiding Judge OPINION

1 The appellant, Darrell E. Helton (petitioner), appeals as of right from a judgment of

the trial court dismissing his suit for post-conviction relief following an evidentiary hearing.

In this Court, the petitioner contends he was denied his constitutional right to the effective

assistance of counsel because counsel failed to brief an issue in this Court on direct

appeal. 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 that the

judgment of the trial court should be affirmed.

The petitioner was convicted of aggravated child abuse. The trial court sentenced

the petitioner to confinement for twelve (12) years in the Department of Correction. This

court affirmed the petitioner’s conviction and sentence. Donna Bailey and Darrell Eugene

Helton v. State, Hawkins County No.03-C-01-9207-CR-00266, 1993 WL 480428 (Tenn.

Crim. App., Knoxville, November 22, 1993). The supreme court denied the petitioner’s

application for permission to appeal on April 4, 1994.

Counsel for the petitioner filed a motion for a change of venue. It appears the

motion was predicated upon “some pretrial publicity.” Counsel argued the motion. The

trial court took the motion under advisement to see if a fair and impartial jury could be

selected to decide the guilt of the petitioner. Concluding that a fair and impartial jury was

impaneled, the trial court dismissed the motion for a change of venue.

The attorney who represented the petitioner testified on behalf of the state during

the evidentiary hearing. He testified there were three major issues which had merit. While

he did not believe the defendant would be granted relief on the change of venue issue, he

nevertheless placed the issue in the brief at the last moment. According to this Court’s

opinion, counsel failed to brief the issue. This Court held the issue had been waived. See

Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. Rule 10.

The constitutional right to the effective assistance of counsel extends to the

representation of an accused in the appellate courts. Evitts v. Lucey, 469 U.S. 387, 105

S.Ct. 830, 83 L.Ed.2d 821 (1985). As the United States Supreme Court said in Evitts:

[N]ominal representation on an appeal as of right . . . does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all.

2 469 U.S. at 396, 105 S.Ct. at 836, 83 L.Ed.2d at 830. In other words, appellate counsel

must function as an advocate and actively promote the client’s position by scrutinizing the

record for error and by presenting legal arguments favorable to the accused. See Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Mylar v. Alabama, 671

F.2d 1299 (11th Cir. 1982), reh’g denied en banc, 677 F.2d 117 (11th Cir. 1982), cert.

denied, 463 U.S. 1229, 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983).

Before a petitioner is entitled to relief based upon the ineffective assistance of

counsel, he must establish by a preponderance of the evidence (a) counsel made errors

so serious that counsel was not functioning as counsel guaranteed by the Sixth

Amendment to the United States Constitution and Article I, § 9 of the Tennessee

Constitution and (b) counsel’s errors were so serious as to deprive the defendant of his or

her appeal as of right or a serious issue raised in the appellate court. See Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Porterfield v. State,

897 S.W.2d 672, 677 (Tenn. 1995); Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). In this

case, the petitioner established counsel erroneously failed to support the issue regarding

a change of venue with an argument. However, the petitioner has failed to establish he

was prejudiced by counsel’s error in this regard.

____________________________________________ JOE B. JONES, PRESIDING JUDGE

CONCUR:

______________________________________ JOSEPH M. TIPTON, JUDGE

______________________________________ CURWOOD WITT, JUDGE