Martucci v. State

872 S.W.2d 947, 1993 Tenn. Crim. App. LEXIS 340
CourtCourt of Criminal Appeals of Tennessee
DecidedMay 25, 1993
StatusPublished
Cited by17 cases

This text of 872 S.W.2d 947 (Martucci v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martucci v. State, 872 S.W.2d 947, 1993 Tenn. Crim. App. LEXIS 340 (Tenn. Ct. App. 1993).

Opinion

OPINION

WILLIAM S. RUSSELL, Special Judge.

Len Martucci is serving a life sentence for the first degree murder of Patricia Miles in [948]*948Anderson County on January 19, 1988. He appealed the conviction to this court and the judgment of the trial court was affirmed on April 3, 1990.

On September 18, 1991, Martucci filed pro se a 185 page typewritten petition for post-conviction relief and also moved the court for the appointment of counsel.

On September 20, 1991, the trial court appointed J. Michael Clement, a member of the Anderson County bar, to represent the petitioner. A status hearing was set for December 13,1991. On that date, Mr. Clement reported to the court that the only alleged constitutional rights deprivations in the conviction process that he found in reviewing the petition had to do with prosecutorial misconduct and ineffective assistance of counsel, and that these were the only issues that counsel would be relying upon. The court said:

Mr. Clement, I am going to give you until February 14th to address specifically those areas of constitutional question. Mrs. Hicks, he will address those and, of course, you can file an answer as well. And you can see whether or not there is any eviden-tiary hearing required.

Whereupon, Mr. Clement said to the court:

Well, I will contact Mr. Martucci by letter and tell him that I am going to pare this down.
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On February 14, 1992, the matter was called up as scheduled. Mr. Clement said:

In the case of Mr. Martucci, the one issue of ineffective counsel is 40 pages and it is very specific and very specific instances of fact which I delineated. I mean, I didn’t know what else he could do, except trash the rest of it and just use the ineffective assistance of counsel. I, to be honest with you, most of it was, most of the remaining 160 pages are things that I felt were appeal, direct appeal issues. But I believe he has been very specific, as specific as he can be on the statements of fact regarding ineffective assistance of counsel.

Apparently, from the dialogue that followed, no amended petition had been filed, but Mr. Clement reported, “Well, he’s pulled out those pages.”

At that point, the Assistant District Attorney General, Mrs. Jan Hicks, stated that she had spot checked the petition and it was “just complete and utter redundancies.” Thereafter, the trial judge instructed her to draw an order of dismissal. The Court commented:

So, you know, maybe I am committing a mistake here as far. as procedure is concerned, but I do not think that we ought to be inundated with 200 pages of xeroxed parody of grounds.

The dismissal order states as its basis “failure of defendant to amend his petition which comprises 185 pages full of redundancies to state ‘briefly and clearly’ his claims as required by statute and by the Court.”

Martucci filed a pro se notice of appeal, and this Court appointed John C. Burgin, Jr., of the Knoxville bar to prosecute this appeal.

Appellant’s counsel contends that a trial court may not dismiss a petition for post-conviction relief solely because the petition is lengthy and some of the issues are previously determined or waived where at least one ground in the petition is cognizable.

The State concedes that an issue of ineffective assistance of counsel is presented by the petition, but that the trial judge properly dismissed the petition when it was not pared down for the petitioner by appointed counsel.

We hold that counsel appointed in the trial court should have been required to file an amended petition, and that the inartfully drafted pro se petition which admittedly presented a ground which called for an eviden-tiary hearing should not have been summarily dismissed.

The procedures involved are clearly set out in our statutes. A petition that briefly and clearly states an abridgement in some way of a right guaranteed by the Constitution of Tennessee or the Constitution of the United States in the conviction or sentencing process is the first step. Tennessee Code Annotated §§ 40-30-104(a), 40-30-105. Note the requirement of brevity and clarity.

Obviously, inartfully drafted pro se petitions were and are expected. For that rea[949]*949son, Tennessee Code Annotated § 40-30-107 provides that no petition for relief shall be dismissed for failure to follow the prescribed form or procedure until after the judge has given the petitioner reasonable opportunity, ivith the aid of counsel, to file an amended petition. It is not compliance with this statute to appoint an attorney who then never reduces a petition which sets out an alleged constitutional rights violation to brief and clear form and for that failure dismiss the petition for verbosity and redundancy. The procedural concept of the Post-Conviction Procedure Act is that, in the circumstances of this case, appointed counsel should edit the petition, succinctly and clearly restating the facially meritorious plaints of constitutional rights deprivations in the conviction and/or sentencing process.

If and when a petition is competently drafted and all pleadings, files and records of the case conclusively show that the petitioner is entitled to no relief the court may properly dismiss the petition without the appointment of counsel or conducting a hearing. Tennessee Code Annotated § 40-30-109. Stokely v. State, 4 Tenn.Cr.App. 241, 470 S.W.2d 37 (1971). This court has said that great caution should be exercised in the making of this judgment, and consideration given to the provisions of T.C.A. § 40-30-107, which provides that no dismissal shall be ordered for defects in form or procedure until there has been a counsel-aided, reasonable opportunity to amend; and T.C.A. § 40-30-115, which provides that no petition shall be dismissed for technical defects, incompleteness or lack of clarity until the petitioner has had reasonable opportunity, with the aid of counsel, to file amendments. Cureton v. Toilet, 477 S.W.2d 233 (Tenn.Crim.App.1971).

The practical application of the law may be summarized by saying that a clear but patently non-meritorious petition may be dismissed summarily. A petition which is unclear to the extent that it cannot be so dismissed calls for the appointment of counsel, whose duty it is to communicate with the petitioner and determine if any valid ground or grounds are said by the petitioner to exist. If so, the petition should be amended and clarified. Amendments in such cases should encompass all claims, as the Act contemplates only one post-conviction petition except in extraordinary instances. T.C.A. §§ 40-30-111, 40 — 30—112(b)(1).

This Court is very conscious of the burdens caused courts at all levels by the filing of inartful, redundant, verbose, repetitious and largely meritless petitions for post-conviction relief.

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Cite This Page — Counsel Stack

Bluebook (online)
872 S.W.2d 947, 1993 Tenn. Crim. App. LEXIS 340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martucci-v-state-tenncrimapp-1993.