State v. Robinson

• Court: Court of Criminal Appeals of Tennessee
• Decided: August 10, 1998
• Docket: 03C01-9710-CR-00430
• Status: Published

Opinion

FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE August 10, 1998 MAY 1998 SESSION Cecil Crowson, Jr. Appellate C ourt Clerk

RONALD E. ROBINSON, ) ) Appellant, ) C.C.A. No. 03C01-9710-CR-00430 ) vs. ) Knox County ) STATE OF TENNESSEE, ) Hon. Richard Baumgartner, Judge ) Appellee. ) (Post-Conviction) )

FOR THE APPELLANT: FOR THE APPELLEE:

ALBERT J. NEWMAN, JR. JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter Suite 500, Burwell Bldg. 602 S. Gay St. ELIZABETH B. MARNEY Knoxville, TN 37902 Asst. Attorney General 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493

RANDALL E. NICHOLS District Attorney General

MARSHA SELECMAN Asst. District Attorney General City County Bldg. Knoxville, TN 37902

OPINION FILED:________________

AFFIRMED

CURWOOD WITT, JUDGE OPINION

The petitioner, Ronald E. Robinson,1 appeals the Knox County

Criminal Court's dismissal of his petition for post-conviction relief. Robinson is

presently serving an effective 37 year sentence for convictions of aggravated rape,

two counts of aggravated kidnapping, aggravated assault, assault and battery.

State v. Ronald Eugene Robinson, No. 03C01-9212-CR-00433 (Tenn. Crim. App.,

Knoxville, Oct. 26, 1993), perm. app. denied (Tenn. 1994) (concurring in results

only). He filed a timely petition for post-conviction relief, which he amended four

times pro se and a fifth time through counsel. The allegations were numerous;

however, at the post-conviction hearing he proceeded on only two issues --

ineffective assistance of counsel and actual innocence. The trial court heard the

testimony of witnesses, including the petitioner, and concluded the petition was

without merit. In this appeal of the trial court's ruling, the petitioner specifically

challenges only one of the trial court's determinations -- that he was afforded the

effective assistance of counsel in the determination that he would not testify at his

trial. Having reviewed the record and the briefs of the parties, we affirm the trial

court's dismissal of this action.

In post-conviction proceedings filed on or before May 10, 1995, a

petitioner has the burden of proving his post-conviction allegations by a

preponderance of the evidence. Compare McBee v. State, 655 S.W.2d 191, 195

(Tenn. Crim. App. 1983) (burden of proof is by preponderance of evidence) with

Tenn. Code Ann. § 40-30-210(f) (1997) (burden of proof is by clear and convincing

evidence). A trial court's findings of fact following a post-conviction hearing have

the weight of a jury verdict. Breton v. State, 477 S.W.2d 754, 756 (Tenn. Crim.

1 The petitioner was convicted under the name Ronald Eugene Robinson. See State v. Ronald Eugene Robinson, No. 03C01-9212-CR-00433 (Tenn. Crim. App., Knoxville, Oct. 26, 1993), perm. app. denied (Tenn. 1994) (concurring in results only).

2 App.1971). On appeal, those findings are conclusive unless the evidence

preponderates against the judgment. Butler v. State, 789 S.W.2d 898, 900 (Tenn.

1990).

In the case at bar, the petitioner's appellate issue is as follows. "Was

the court, after conducting a full evidentiary hearing, correct in dismissing Ronald

E. Robinson's Post Conviction Relief Petition as being without legal merit?" The

only specific factual finding of the trial court which is addressed in the argument

accompanying this issue is whether the trial court correctly determined that the

petitioner was afforded the effective assistance of counsel in the process by which

it was determined that he would not testify at his trial. 2

The petitioner testified at the hearing that he wanted to take the stand

at his trial but his counsel did not let him do so. On the other hand, the petitioner's

trial counsel testified that he recommended that the petitioner not testify because

of the petitioner's criminal record, but the petitioner made his own decision not to

testify. The petitioner alleges trial counsel's failure to allow him to testify was

ineffective because it deprived him of a defense in a "he said, she said" type of

case.3 The trial court found the trial attorney's testimony more credible than that of

2 Numerous subissues of the ineffectiveness claim were raised below. Additionally, the petitioner raised an actual innocence claim based upon alleged post-trial recantations by the victim. Given the broad statement of the issue and the specific argument on only one of the ineffective assistance subissues, we must presume the specifically argued subissue is the only one the petitioner wishes us to review. Assuming arguendo, the petitioner’s intent was for us to review the remaining issues, we consider them waived based upon his failure to properly frame them for this court and address them with adequate argument. See Williams, 914 S.W.2d 940, 947-49 (Tenn. Crim. App. 1995), perm. app. denied (Tenn. 1997); Tenn. R. App. P. 27; Tenn. R. Ct. Crim. App. 10(b). 3 The petitioner also alleges trial counsel was ineffective for not adequately explaining the effect that his not testifying would have on the outcome of the case. The record does not lend factual support to this allegation. The petitioner testified that he and his attorney talked the night before trial about what he should do when he took the stand. The petitioner claimed both he and his

3 the petitioner on the issue of whether the petitioner made his own decision not to

testify. The trial court also found that trial counsel had adequately conferred with

the petitioner prior to trial and prepared the case. The court concluded that the

petitioner was effectively represented by trial counsel. We cannot say that the

evidence preponderates to the contrary.

Accordingly, the judgment of the trial court is affirmed.

_______________________________ CURWOOD WITT, JUDGE

CONCUR:

_____________________________ JOSEPH M. TIPTON, JUDGE

_____________________________ JOE G. RILEY, JUDGE

attorney's co-counsel were taken aback when trial counsel unexpectedly rested the defense case. Assuming arguendo, the petitioner had already made the decision to testify, we fail to see why trial counsel should have explained the supposed adverse effect of the petitioner not testifying.