State v. Gilmore

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 19, 1998
• Docket: 02C01-9611-CR-00421
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

FEBRUARY 1998 SESSION FILED March 19, 1998

Cecil Crowson, Jr. CHARLIE GILMORE, JR., ) Appellate C ourt Clerk ) No. 02-C-01-9611-CR-00421 APPELLANT, ) ) Shelby County v. ) ) Chris Craft, Judge STATE OF TENNESSEE, ) ) (Post-Conviction Relief) APPELLEE. )

FOR THE APPELLANT: FOR THE APPELLEE:

Deborah M. Henderson John Knox Walkup Attorney at Law Attorney General & Reporter 50 North Front Street, Suite 1150 425 Fifth Avenue, North Memphis, TN 38103 Nashville, TN 37243-0493

Elizabeth T. Ryan Assistant Attorney General 425 Fifth Avenue, North Nashville, TN 37243-0493

William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

Jerry R. Kitchen Assistant District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILED: ______________________________

AFFIRMED PURSUANT TO RULE 20

Joe B. Jones, Presiding Judge

OPINION The appellant, Charlie Gilmore, Jr. (petitioner),1 appeals as of right from a judgment

of the trial court dismissing his post-conviction action after an evidentiary hearing. In this

court, the petitioner contends the evidence contained in the record establishes he was

denied his constitutional right to the effective assistance of counsel. After a thorough

review of the record, the briefs submitted by counsel, 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 pursuant to Rule 20, Tennessee Court of Criminal Appeals. The evidence

contained in the record does not preponderate against the trial court’s findings of fact.

The petitioner claims his lawyer failed to interview two witnesses. The attorney who

represented the petitioner testified the petitioner did not provide him with one of the names,

and the second witness, the petitioner’s sister, could not be located. The petitioner did not

know the surname of one witness, but testified he “[could] find out” this person’s name.

Nevertheless, the petitioner did not present the testimony of either alleged witness during

the evidentiary hearing. In short, the petitioner failed to establish he was prejudiced by trial

counsel’s alleged failure to locate and interview the petitioner’s sister. Black v. State, 794

S.W.2d 752, 757-58 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).

The petitioner alleges trial counsel failed to formulate a defense. The petitioner’s

mother was his chief witness. She died while this case was pending in the trial court. The

testimony of the other defense witness was not helpful. The trial attorney testified the

chances of the petitioner being acquitted were extremely “dim.” Trial counsel was

successful in having a twenty-year offer reduced to fifteen years, the minimum punishment

for the offense.

The trial attorney did not cause the petitioner to change his plea from not guilty to

guilty. The attorney explained the circumstances to the petitioner, provided him with the

guilty plea forms, and left the room. When the attorney returned, the petitioner had signed

the forms. The defendant was aware of the guilty plea procedure and the effect of such

a plea because he entered a plea of guilty to sexual battery three years before the guilty

plea in question. The transcript of the submission hearing supports the trial court’s findings

1 The petitioner was indicted and convicted as “Charlie Gilmore.” “Charlie Gilmore” and “Charlie Gilmore, Jr.” are the same person.

2 of fact.

_____________________________________ JOE B. JONES, PRESIDING JUDGE

CONCUR:

_______________________________________ JOHN H. PEAY, JUDGE

_______________________________________ THOMAS T. WOODALL, JUDGE