James Michael Pitts v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 18, 1999
• Docket: 01C01-9803-CR-00130
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED FEBRUARY 1999 SESSION March 18, 1999

Cecil W. Crowson Appellate Court Clerk

JAMES MICHAEL PITTS, ) ) Appellant, ) C.C.A. No. 01C01-9803-CR-00130 ) vs. ) Davidson County ) STATE OF TENNESSEE, ) Honorable Walter C. Kurtz, Judge ) Appellee. ) (Post-Conviction) )

FOR THE APPELLANT: FOR THE APPELLEE:

DALE M. QUILLEN JOHN KNOX WALKUP MICHAEL J. FLANAGAN Attorney General & Reporter 95 White Bridge Road, Suite 208 Nashville, TN 37205 DARYL J. BRAND Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243

JOHN ZIMMERMAN Asst. Dist. Attorney General Washington Sq., Suite 500 222-2nd Avenue North Nashville, TN 37201-1649

OPINION FILED: _____________

AFFIRMED - RULE 20

JAMES CURWOOD WITT, JR., JUDGE OPINION

The petitioner, James Michael Pitts, appeals the Davidson County

Criminal Court’s dismissal of his 1997 petition for post-conviction relief in which he

attacked his 1993 conviction on multiple counts of delivery of cocaine. In his

petition, petitioner alleges various instances of the ineffective assistance of trial

counsel, including the failure to file a timely motion to suppress the defendant’s pre-

trial statement, the failure to adequately prepare for trial, the failure to supervise the

defendant in his conversations with law enforcement officers, the failure to prevent

the introduction at trial evidence of the defendant’s other crimes and prior bad acts,

the failure to present evidence on the issue of sentencing enhancement, and the

failure to appear at the hearing on the motion for new trial. We have heard oral

argument and reviewed the record and applicable law, and we affirm the judgment

of the trial court pursuant to Rule 20 of the rules of this court.

The record contains a transcript of the post-conviction hearing. The

transcript and the record as a whole fail to establish any of the allegations of

ineffective assistance of counsel. The transcript reflects that some of the

allegations were expressly waived during the hearing. Notably, the petitioner was

unable to prove any merit to the untimely-filed motion to suppress his pre-trial

statement, trial counsel’s failure to prepare the petitioner’s case, counsel’s failure

to appear at the hearing on the motion for new trial or that, if he failed to appear,

any resulting prejudice, counsel’s responsibility for conversations between the

petitioner and law enforcement officers, or counsel’s responsibility for any breach

of agreement between the petitioner and the officers. He failed to present any

evidence that, if presented at trial, could have resulted in any different result.

The petitioner had the burden of proving his allegations by clear and

convincing evidence. Tenn. Code Ann. § 40-39-210(f) (1997). The post-conviction

court’s findings of fact are afforded the weight of a jury verdict and are conclusive

2 on appeal unless the evidence in the record preponderates against them. State v.

Henley, 960 S.W.2d 572, 578 (Tenn. 1997). We do not reweigh or reevaluate the

evidence. Id. at 579. The burden is on the appellant to demonstrate that the

evidence preponderates against the post-conviction court’s findings. Id. In this

case, the petitioner failed to carry his burden both at the trial court level and on

appeal, and moreover, there would be no precedential value to a full opinion in this

matter.

Accordingly, the matter is affirmed pursuant to Rule 20.

_____________________________ JAMES CURWOOD WITT, JR., Judge

CONCUR:

______________________________ DAVID G. HAYES, Judge

______________________________ JOHN EVERETT W ILLIAMS, Judge