Womac v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 23, 1997
• Docket: 03C01-9608-CR-00294
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED NOVEMBER 1997 SESSION December 23, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk

RICKY LEE WOMAC, ) ) C.C.A. No. 03C01-9608-CR-00294 Appellant, ) ) McMinn County V. ) ) Honorable Mayo L. Mashburn, Judge ) STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

Ricky Lee Womac, Pro Se John Knox Walkup Northeast Correctional Center Attorney General & Reporter P.O. Box 5000 Mountain City, TN 37683 Peter M. Coughlan Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

Jerry N. Estes District Attorney General 203 E. Madison Avenue P.O. Box 647 Athens, TN 37371

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS, Judge

OPINION The appellant, Ricky Lee Womac, was convicted of facilitation to commit

first degree murder. On direct appeal his conviction was affirmed by this Court.

Thereafter, the appellant filed a petition seeking post-conviction relief. The trial

court summarily dismissed the petition without an evidentiary hearing finding the

allegations, even if taken as true, did not state a claim upon which relief could be

granted. Approximately forty-seven days after the trial court’s dismissal became

final, the appellant filed a notice of appeal to this Court. Upon review, we affirm.

The state argues that the appellant did not timely file his notice of appeal

in accordance with T.R.A.P. 4(a). Therefore, the state contends this appeal is

time barred. We agree that the appellant did not timely file his notice of appeal.

However, we see no prejudice accruing to the state in considering the appellant’s

allegations. Therefore, in the interest of justice, we waive the appellant’s

untimely filing. State v. Mullins, 767 S.W.2d 668 (Tenn. Crim. App. 1988).

The appellant alleges that he received ineffective assistance of counsel.

Specifically, he claims that his trial counsel communicated to him through his

mother, failed to investigate allegations that he had been beaten by jail officials,

and failed to pursue claims of an illegal investigation of the crime scene.

It is well settled that a clear but patently nonmeritorious petition may be

dismissed summarily. Martucci v. State, 872 S.W.2d 947 (Tenn. Crim. App.

1993). A petition which is unclear to the extent that it cannot be so dismissed

requires the appointment of counsel. Id. at 949. If the appointed counsel

determines that the appellant has a valid ground to proceed, he or she should

file an amended petition. Id. Tenn. Code Ann. § 40-30-206(f) states that:

Upon receipt of a petition in proper form, or upon receipt of an amended petition, the court shall examine the allegations of fact in the petition. If the facts alleged, taken as true, fail to show that the petitioner is entitled to relief or fail to show that the claims for relief have not been waived or previously

-2- determined, the petition shall be dismissed. The order of dismissal shall set forth the court’s conclusions of law.

Tenn. Code Ann. § 40-30-206 (Supp. 1996)

Upon review of the petition, we find that the appellant’s petition is artfully

drafted. It alleges unambiguous claims as well as the facts to support these

claims. Therefore, it is proper for summary disposition if the trial court correctly

determines that the claims do not allege grounds upon which relief can be

granted.

The appellant’s allegation regarding his alleged beating by jail officials

occurred after his trial and convictions. The trial court was correct in finding that

this allegation is irrelevant in determining whether the appellant received

effective trial representation. The appellant also alleges that his trial attorney

communicated with him through his mother. He does not allege that his attorney

failed to communicate with him; he simply objects to the attorney’s channel of

communication. This claim fails to allege any harm or prejudice suffered by this

type of consultation. Next, the appellant alleges that “although the subject [the

illegal investigation of the crime scene] was presented at trial, counsel refused to

pursue the subject in the Court of Criminal Appeals.” This allegation clearly

illustrates the appellant’s dislike of the outcome concerning this issue, but does

not prove that he received ineffective assistance of counsel. 1

Upon consideration of the appellant’s issues, this Court finds that the trial

court was correct in summarily disposing of the appellant’s petition. None of the

1 Although the trial transcript is not before us, we note that the post-conviction hearing judge also presided over the appellant’s trial. In his written order dismissing the appellant’s petition, he stated that he had reviewed the 1,411 page record of the appellant’s trial. He found that the appellant’s attorney filed 16 pretrial motions on the appellant’s behalf. Furthermore, he stated that the appellant’s attorney “demonstrated a degree of preparation equal to or above any defense attorney this Court has encountered in 10 years of trying criminal cases.”

-3- allegations, even if proven true, would demonstrate that the appellant received

ineffective assistance of counsel.

________________________________ PAUL G. SUMMERS, Judge

CONCUR:

______________________________ JOSEPH B. JONES, Presiding Judge

______________________________ J. CURWOOD WITT, JR., Judge

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