State v. Clarence Washington

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 23, 1997
• Docket: 02C01-9507-CR-00181
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JULY 1997 SESSION FILED July 23, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk CLARENCE WASHINGTON, ) ) C.C.A. No. 02C01-9507-CR-00181 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. CAROLYN WADE ) BLACKETT, JUDGE STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

R. PRICE HARRIS (at hearing) JOHN KNOX WALKUP 3074 East Street Attorney General & Reporter Memphis, Tennessee 38128 SARAH M. BRANCH CLARENCE WASHINGTON (on appeal) Assistant Attorney General Pro Se 450 James Robertson Parkway Cold Creek Correctional Facility Nashville, Tennessee 37243-0493 P.O. Box 1000 Henning, Tennessee 38041 WILLIAM L. GIBBONS District Attorney General

PAUL F. GOODMAN Assistant District Attorney General

RHEA CLIFT Assistant District Attorney General Criminal Justice Complex 201 Poplar, Ste. 301 Memphis, Tennessee 38103

OPINION FILED: _________________

AFFIRMED- RULE 20

JOE G. RILEY, JUDGE ORDER

Pro se petitioner, Clarence Washington, appeals the denial of post-conviction

relief. In May 1982, the petitioner was convicted of armed robbery and habitual

criminality. He was sentenced to two (2) concurrent ten year terms of imprisonment.

The petitioner’s sentences were enhanced on the basis of seven (7) guilty pleas

entered between 1971 and 1977. His original post-conviction petition was denied, and

he appealed. This Court reversed and remanded for a new hearing. After an

evidentiary hearing, the post-conviction court denied relief . We AFFIRM the judgment

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

CASE HISTORY

This Court affirmed petitioner’s convictions on direct appeal. Clarence

Washington v. State, C.C.A. No. 23, Shelby County (Tenn. Crim. App. filed February 6,

1985, at Jackson) perm. to appeal denied (Tenn. 1985). In 1985, petitioner filed his

original petition for post conviction relief. The trial court appointed counsel and held an

evidentiary hearing. In denying relief, the trial court found the issues raised in the

petition had been waived or previously determined. This Court subsequently reversed

the original post-conviction court’s denial of relief and remanded for a new evidentiary

hearing to resolve 1) whether petitioner received effective assistance of counsel and 2)

the validity of his 1970 guilty pleas. Clarence Washington v. State, C.C.A. No. 62,

Shelby County (Tenn. Crim. App. filed July 26, 1989, at Jackson). Petitioner later

amended the petition to include newly discovered evidence. After an evidentiary

hearing, the trial court denied relief.

2 STANDARD OF REVIEW

The trial judge's findings of fact on post-conviction hearings are conclusive on

appeal unless the evidence preponderates otherwise. Butler v. State, 789 S.W.2d 898,

899-900 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354 (Tenn. Crim. App. 1995).

The trial court’s findings of fact are afforded the weight of a jury verdict, and this Court

is bound by the trial court’s findings unless the evidence in the record preponderates

against those findings. Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996).

This Court may not reweigh or reevaluate the evidence, nor substitute its inferences for

those drawn by the trial judge. Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim.

App. 1996); Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Questions

concerning the credibility of witnesses and the weight and value to be given to their

testimony are resolved by the trial court, not this court. Black v. State, 794 S.W.2d at

755. The burden of establishing that the evidence preponderates otherwise is on

petitioner. Id.

After receiving evidence at the post-conviction hearing, the trial judge took this

case under advisement. Subsequently, the trial court filed extensive, written findings of

fact and conclusions of law consisting of twenty-seven (27) pages. These extensive

findings have greatly simplified our review and justify our Rule 20 disposition.

I. Ineffective Assistance of Counsel

Petitioner claims that original trial counsel deprived him of effective assistance of

counsel. Specifically, he argues that counsel failed to adequately (1) investigate,

prepare, or present the “correct” facts in pre-trial motions; (2) challenge in-court

identifications at the preliminary hearing; and (3) represent him at trial. The trial court in

its written findings thoroughly reviewed the services rendered by counsel and found no

evidence of deficient performance nor prejudice to petitioner as a result of their

performance. The evidence does not preponderate against these findings.

3 Accordingly, this issue is without merit.

II. Newly Discovered Evidence

Petitioner argues that he only recently received certain exculpatory police reports

concerning the identification by witnesses. He argues these reports reveal that the

witnesses reviewed the police mug books on the same date and time; therefore, this

procedure was impermissibly suggestive and would have led to suppression of the

identifications. He further contends the prior descriptions by the victim were

inconsistent with their trial identification. The trial court conducted an extensive review

of “hundreds of pages of documents” and found no new evidence which deprived

petitioner of a fair trial.

The alleged recently discovered documents do appear to have the same date

and time for each witness noted on the police reports. However, their statements

clearly reflect different times, and the trial testimony indicates they viewed the photos

separately. Furthermore, petitioner has made an insufficient showing that either the

photo identification or the in-court identification would have been suppressed based

upon this information. Likewise, there has been an insufficient showing that the result

of the trial would have been any different based upon the prior description given by the

witnesses. In summary, there is no showing that such evidence would likely have

changed the results of the trial. See State v. Nichols, 877 S.W.2d 722 (Tenn. 1994),

cert. denied, 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995). This issue is

without merit.

III. Guilty Pleas

Petitioner argues his prior guilty plea convictions are void because he was not

4 advised of his right against self-incrimination. The transcripts indicate the court fully

discussed the ramifications of entering the pleas with petitioner. The trial court made

extensive written findings as to the various guilty pleas entered by petitioner. The trial

court relied upon Blankenship v. State, 858 S.W.2d 897 (Tenn. 1993), and found that

“the evidence and testimony offered establish overwhelmingly that there was, at the

least, substantial compliance with the Boykin requirements.” The record clearly

supports this conclusion. This issue is without merit.

The judgement of the trial court is AFFIRMED pursuant to Rule 20 of this Court.

__________________________ JOE G. RILEY, JUDGE

CONCUR:

______________________________ JOE B. JONES, PRESIDING JUDGE

___________________________ DAVID H. WELLES, JUDGE