Larry Anthony Wade

• Court: Court of Criminal Appeals of Tennessee
• Decided: November 24, 1999
• Docket: 01C01-9809-CR-00378
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

SEPTEMBE R SESSION, 1999

LARRY A. WADE, 01C01-9809-CR-00378 )

) C.C.A. NO. FILED Appe llant, ) November 24, 1999 ) ) DAVIDSON Cecil Crowson, Jr. COUNTY Appellate Court Clerk VS. ) ) HON. SETH NORMAN, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

RAYBURN McGOWAN, JR. PAUL G. SUMMERS Washington Square Building Attorney General and Reporter 222 Se cond A venue N orth Suite 350M KIM R. HELPER Nashville, TN 37201 Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243

VICTOR S. JOHNSON District Attorney General

LISA NAYLOR Assistant District Attorney General Washington Square, Suite 500 222 Se cond A venue N orth Nashville, TN 37201-1649

OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE OPINION

The Defe ndan t, Larry A nthon y W ade, J r., appe als as of right from the trial

court’s dismissal of his petition for post-conviction relief. We reverse the order

of the trial court and remand for findings of fact and conclusions of law as

required by the legislature.

The Defendant pleaded guilty to and was convicted of one count of

attempted second degree murder and one count of posse ssion of m ore than .5

grams of cocaine with intent to sell or deliver. In exchange for his guilty pleas,

he received concurrent twelve-year sentences as a Range I offender. In addition,

other charges were dismissed.

The Defendant subsequently filed a pro se petition for post-conviction

relief. The petition allege d that his conviction w as the result of ineffective

assistan ce of cou nsel and that his gu ilty pleas were unlawfully induced and not

volunta rily entered. The petition alleged that his attorney failed to conduct any

factual investigation of the case and failed to advise him of the consequences of

his plea. An amended pro se petition, apparently filed at the same time the

original petition was filed, alleged that Defendant’s counsel told the Defendant

if he did not ac cept th e plea agree men t in state cou rt he wo uld be indicte d in

federal court and therefore face more jail time. The amended petition alleged

that counsel failed to intervie w witnes ses an d failed to o btain or listen to the tape

recordin g mad e of the co caine sa le alleged ly made by the De fendan t.

The trial court appointed counsel to represent the Defendant during the

post-conviction proceedings. An evidentiary hearing was conducted. At the

evidentiary hearing , the Defe ndant te stified that he was seve nteen years o ld

when he was charged with these offenses and that the charges were transferred

-2- from juvenile court to criminal court. He testified that he told his attorney that the

attempted murder charge “was a lie” and that he gave his attorney the names of

witnesses concerning this charge but that his attorney never talked to any of the

witnesse s. He furth er testified tha t he wan ted to go to trial but that his attorney

would not let him. He testified that he did not have any cho ice but to p lead gu ilty

because his atto rney m ade n o inves tigation of his ca se. He said that his attorney

told him if he did not plead guilty in s tate co urt, he w ould be prosecuted in federal

court and receive a longer sentence.

The only other witness to testify at the post-conviction hearing was the

Defe ndan t’s former attorney. The attorney testified that the Defenda nt did give

him the na mes of witne sses , but the attorne y could not recall whether he talked

to any of those witnesses. The attorney also stated that he was aware that there

was supposedly a tape recording of the drug transaction but that he did not think

that he ever listened to that tape. He testified that investigating the case and

preparing for trial basically “became moot” because he found out that the federal

authorities were going to prosecute the Defendant. Because the attorney

believed that his client w ould receive more time if prosecuted in federal court, he

then attempted to negotiate a plea agreement which would include an agreement

that his client would not be prosecuted in federal court. He said th at all of th is

was thoroughly discussed with the Defendant. As a result of the negotiations, he

testified that he believed the Defenda nt’s guilty plea was kn owing and voluntary.

The record o n appe al contain s no judg ment o r order of the trial court

denyin g relief or dismissing th e petition. At the conc lusion of the eviden tiary

hearing, the post-conviction court made no oral findings of fact or conclusions of

law other th an ob serving that the convic tions w ere the result o f a plea barga in

and sta ting,

Mr. Funk [trial counse l] did an exc ellent job for th is man . And then he didn’t investigate the case because the man wanted to plead here so he wouldn’t get all that court time in federal court. Now,

-3- your man wants to say, oh, he didn’t do a good job and I got too much time her e. Petition denied. Mr. Funk did an excellent job.

Without reach ing the merits of this proceeding, we must remand this cause

to the trial court for entry of a final order and for findings of fact and conclusions

of law regarding each ground presented in the petition. Although it is apparent

that the trial judge be lieved the p lea agre emen t was favo rable to the Defe ndant,

the judge did not add ress the D efenda nt’s asse rtions that his attorney ’s

inadeq uate investigation and lack of preparation resulted in a guilty plea which

was not voluntarily and understandingly given.

The Post-Conviction Procedure Act adopted by our legislature requires,

Upon the final disp osition of every petition, the c ourt shall enter a final order, and except where proceedings for delayed appeal are allowe d, shall set forth in the o rder or a written memorandum of the case all grounds presented, and shall state the findings of fact and conclusions of law with regard to each such ground.

Tenn. C ode Ann . § 40-30-211 (b) (empha sis added).

The statute is clear and unambiguous. Although the reasons for the

statutory mandate seem apparent, this Court has noted that

[t]he duty to enter findings of fact and conclusions of law as to each ground alleged is mandatory as the appellate courts may o nly review the find ings o f the trial c ourt. N ot only d o the tria l court’s findings facilitate appellate review, but, in many c ases, are neces sary for su ch review .

Ron ald Bradford Wa ller v. State, No. 03C01-9702-CR-00054, 1998 WL 743654,

at *6 (Tenn. Crim. A pp., Kno xville, Oct. 15, 1 998) (citatio n omitted ); see also

Claude Francis Garrett v. S tate, No. 01C01-9807-CR-00294, 1999 WL 436828

(Tenn. Crim. A pp., Nas hville, June 30, 199 9); Steve E . Todd v. State, No. 01C01-

9612-CR-00503, 1999 WL 30678 (Tenn. Crim . App., Nash ville, Jan. 26, 1999);

Joe L. Utley v. Sta te, No. 01C01-9709-CR-00428, 1998 WL 846577 (Tenn. Crim.

App., Nas hville, Dec. 8, 1998).

-4- This case is rem anded for the purpose o f permitting the trial court to enter

its findings of facts and conclusions of law as to each ground alleged in the

Defendant’s petition. No further proo f is necessary. O nce the trial court enters

its order, the Defendant may again appeal as of right, if he so desires.

According ly, the rulin g of the tria l court is revers ed, an d this ca se is

remanded in orde r to perm it the trial court to revisit the grounds raised by the

Defendant in his original and amended petitions and, thereafter, enter findings of

fact and c onclusio ns of law a s require d by the P ost-Co nviction A ct.

____________________________________ DAVID H. WELLES, JUDGE

-5- CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ JOHN EVERETT WILLIAMS, JUDGE

-6-