State v. Zip Gillespie

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

AUGUST SESSION, 1998 FILED February 10, 1999

ZIP GILLESPIE, ) C.C.A. NO. 02C01-9703-CR-00088 ) Cecil Crowson, Jr.

Appellate C ourt Clerk

Appe llant, )

)

) SHELBY COUNTY

VS. )

) HON. JOHN P. COLTON

STATE OF TENNESSEE, ) JUDGE )

Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

PAMELA J. DREWERY JOHN KNOX WALKUP 416 E. L afayette S t. Attorney General and Reporter P. O. Box 3267 Jackson, TN 38303 DOUGLAS D. HIMES Assistant Attorney General 425 Fifth Avenu e North

Nashville, TN 37243-0493

WILLIAM L. GIBBONS

District Attorney General

ROBERT CARTER

Assistant District Attorney 201 Poplar Avenue

Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

Appellant Zip Gillespie was found guilty of second degree murder and was sentenced as a R ange II multip le offen der to th irty years in prison . In this appe al, Appellant challe nges the po st-con viction c ourt’s denial of his petition for post-conviction relief as well as the trial court’s determination of his sentence, presen ting the follow ing issue s for review :

1) whether the post-conviction court erred in proceeding to an evidentiary hearing on Appellant’s pro se petition;

2) wheth er the p ost-co nviction court e rred in c onclu ding th at App ellant receive d effec tive ass istanc e of co unse l at trial;

3) whether the post-conviction court erred in failing to determine whether Appellant waived his right to counsel at his sentencing hearing; and 4) whether the trial court erred in determining Appellant’s sentence.

After a review of the record, we affirm the judgments of the courts below.

I. FACTS

On November 5, 1991, Appellant was indicted for second degree murder.

Subseq uently, the Shelby C ounty Public De fender’s O ffice was a ppointe d to represent him. A trial ensued and Appellant was convicted of second degree murder. Counse l for Appellant filed a timely m otion for a new trial. Tw o days later, Appellant filed a mo tion to p rocee d pro s e and the trial c ourt gr anted his reques t. The Ap pellant then filed a pro se “petition for new trial,” but at the time of sente ncing , he with drew h is pro s e mo tion an d relied on the motio n filed b y his former counsel. The trial court overruled the motion and the Appellant filed a timely, p ro se n otice o f appe al.

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In the initial appeal of the conviction this Court remanded the case to the trial court for appointmen t of couns el on direc t appea l. State v. Gilles pie, 898 S.W.2d 738 (Tenn. Crim. App. 1994). Counsel was appointed and the appeal proceeded, with the sole issue being whether there was sufficient evidence of self-defense to warran t an acqu ittal. State v. Zip G illespie , No. 02C01-9302-CR- 00024, 1995 WL 454030, at *2 (Tenn. Crim. App., Jackson, Aug. 2, 1995 ). This Court held th at this is sue had no merit and affirmed the judgment of the trial court. Id. at *4.

On September 18, 1995, Appellant filed a pro se petition for post-conviction relief, presenting a myriad of allegations. Counsel was appointed, and evidentiary hearing s were h eld on Ju ne 27, Ju ly 19, and July 22, 1996. The post-conviction court found that after removing “mere rhetoric” from the twen ty- two overlapping and repetitive claims in Appellant’s pro se petition, the petition basic ally made three allegations that Appellant had received ineffective assistance of couns el at trial: 1) trial counsel failed to investigate witnesses and call them on Appellant’s behalf, 2) trial couns el failed to arg ue a the ory of self- defense, and 3) counsel failed to present certain physical evidence supporting the claim of self-d efens e. On Septe mbe r 6, 199 6, the p ost-co nviction court denied the petition, finding that Appellant had failed to prove the allega tions in his petition by clear and co nvincing evidenc e. Specifically, the court found that trial counsel had investigated witnes ses a nd m ade le gitima te strate gic de cision s in not calling certa in witness es, coun sel had c arefully articu lated a the ory of self- defense at trial, and counsel was not deficient in the decision to refrain from introducin g certain p hysical evid ence in th e case .

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II. PROCEEDING ON THE PRO SE PETITION

Appellant contends that the post-conviction court erred in proceeding to the evidentiary hearing on the pro se petition. Specifically, Appellant claims that the pro se petition was so inade quate th at the cou rt should h ave requ ired coun sel to amend the petition before proceeding to the evidentia ry hearing. How ever, Appellant fails to cite any authority that supports this contention. Appellant relies only on Swanso n v. State, 749 S.W.2d 731 (Tenn. 1988) and Martuc ci v. State, 872 S.W.2d 947 (Tenn. Crim. App. 1993). However, this reliance is misplaced. These decisions held that it is improper for a po st-con viction c ourt to s umm arily dismiss a pro se pe tition tha t prese nts a c olorab le claim without the appointment of counsel to amend the petition under former Tennessee Code Annotated §§ 40- 30-101 et seq.1 In this ca se, Ap pellan t’s petitio n was not su mm arily dismissed. Indeed, the post-conviction court appointed counsel to represent Appellant at the evidentiary hearing which las ted for thre e days. Further, the court heard testimony from six witnesses, including testimony from Ap pellant on all three da ys of the hearing. T he court spec ifically ad vised A ppella nt that h e wou ld be able to testify as to all of his a llegations . At the co nclusion of his redirect testim ony, Appellant an d his counse l engaged in th e following colloquy:

Q: [Appe llant’s couns el] All right. Mr. Gillespie, so we’ve gone over all the things that you wanted to get in?

A: [Appellant] Yes , sir.

1 There is nothing in th e curren t version o f the statute that require s a pos t-conviction court to require a men dme nt of a pro se com plaint befo re it can pro ceed to an eviden tiary hearing. See Tenn. Code Ann. § 40-30 -202 (1997). In addition, the Tennessee Su preme C ourt has upheld the dismissa l of a pro se petition that failed to make a colorable claim when the petitioner was given both the aid of counsel and a reasonable opportunity to amend the petition after counsel was appointed, and no amended petition was pre pared o r filed. Gable v. State, 836 S.W .2d 558, 559–60 (Ten n. 1992).

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This was clearly not the type of summary dismissal with which th e Swanson and Martucci courts w ere con cerned . This issu e has n o merit.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Although Appellant’s Brief is somewhat unclear on this point, Appellant basic ally contends that the post-conviction court’s denial of relief was error because Appellant had in fact received ineffective assistance of coun sel at tria l. In post-conviction proceedings, the Appellant bears the burden of proving the allegations raised in the petition by clear and convincing evidence. Tenn. Code Ann. § 40-30 -210(f) (1997). See also Scott v. Sta te, 936 S.W.2d 271, 272 (Tenn. Crim. App. 19 96). M oreov er, the tr ial cou rt's findin gs of fa ct are c onclu sive on appeal unless the evid ence p repond erates a gainst the judgm ent. Tidwell v. State, 922 S.W .2d 497 , 500 (T enn. 19 96). The burden of establishing that the evidence prepon derates otherwis e is on the petitioner. Henley v. State, 960 SW .2d 572, 579 (Tenn. 199 7).

This Cou rt reviews a claim of ineffective assistance of counsel under the standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975), and Strickland v. Washington, 466 U.S. 66 8, 104 S. Ct. 20 52, 80 L. Ed.2 d 674 (1984). The petitioner has the burden or proving that (1) the attorney’s performance was deficient, and (2) the deficient performance resulted in prejudice to the defendant so as to d eprive him o f a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). The test in Tennessee for determining whether counsel provide d effec tive ass istanc e is wh ether h is performance was within the range of compe tence dem ande d of atto rneys in

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criminal cases. Baxter, 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel's con duct fa lls within the wid e rang e of ac cepta ble professional assistan ce. Strickland, 466 U.S. at 689, 104 S. Ct. at 206 5; Alley v. State, 958 S.W .2d 138, 149 (Tenn. Crim . App. 1997 ).

In this cas e, App ellant h as faile d to es tablish that the evidence preponderates against the post-conviction court’s finding that Appellant received effective assistan ce of cou nsel at trial. Indeed, in h is brief, App ellant fails to make any argument that trial counsel’s performance was deficient or that Appellant was somehow prejudiced thereby. Nor does Appe llant’s b rief con tain any argument that challenges the post-conviction court’s findings. Indeed, we hold that after a review of the record and the pleadings, there is substantial evidence to support the post-conviction court’s finding that Appellant received effective assistance of counsel. This issue is meritless.

IV. FAILURE TO ADDRESS LACK OF COUNSEL AT SENTENCING

Appellant conte nds th at the p ost-co nviction court c omm itted rev ersible error in failing to dete rmine w hether h e waived his right to co unsel at h is sentencing hearing. The State argues that Appellant has waived this issue because he failed to raise it in his direct appeal. We agree.

When viewing the assortment of claims contained in Appe llant’s post-

conviction petition, it is difficult to determine whether he ever asked the court to consider this claim. H oweve r, even if he d id, the court c orrectly de clined to address this issue b ecaus e it has be en waive d. See Tenn. Code Ann. §§

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40-30-206 (g), -210(f). Th ese pro visions of the Post-Conviction Procedure Act provide, in pertinent part, that “[a] ground for relief is waived if the petitioner perso nally or through an attorney failed to present it for determination in any proceeding before a court of com peten t jurisdic tion in w hich th e grou nd co uld have been p resente d.” Ten n. Cod e Ann. § 40-30-206 (g). Further, “[t]here is a rebutta ble presum ption that a groun d for relie f not rais ed in a court of competent jurisdiction in which th e groun d could h ave bee n prese nted is wa ived.” Tenn. Code Ann. § 40-30 -210(f). In this case, there is no good reason for the failure of Appellant and his appointed coun sel to raise this issue in Appellant’s direct appeal. Indeed, no reason is given. Therefore, this issue has been waived.

Even if this issue had not been waived, Appellant cannot seek review of the length of a se ntenc e in a p ost co nviction proce eding unles s the s enten ce is illegal. See Andre a Jone s v. State, No. 02C01-9603-CR-00084, 1997 WL 68330, at *1 (Tenn. Crim. App., Jackson, Feb. 20, 1997) (citing Tenn. Code Ann. § 40- 35-401(a) (1989)). Indee d, App ellant c once des in his brief that “post-conviction is not the proper ve hicle for asking for a review of sentence.”

Accordingly, the judgments of the courts below are AFFIRMED.

____________________________________

JERRY L. SMITH, JUDGE

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CONCUR:

___________________________________

DAVID H. WELLES, JUDGE

___________________________________

JOHN K. BYERS, SENIOR JUDGE