Harris v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER SESSION, 1998 January 6, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
JOHNNY WAYNE HARRIS, ) C.C.A. NO. 03C01-9803-CR-00086
)
Appe llant, )
)
) UNICOI COUNTY
VS. )
) HON. LYNN W. BROWN
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF UNICOI COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
JOH NNY WA YNE H ARR IS JOHN KNOX WALKUP
Pro Se Attorney General and Reporter
P.O. Box 5000
Mountain City, TN 37683-5000 ELLEN H. POLLACK
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
DAVID CROCKETT
District Attorney General
KENT GARLAND
Assistant District Attorney General
Courthouse, Main Street
Erwin, TN 37650
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Johnny Wayne Harris, appeals as of right from the order
of the trial court summarily dismissing his pro se petition for p ost-con viction relief.
We affirm the ju dgme nt of the trial co urt.
Following a jury trial, the Defendant was found guilty of attempted first
degree murd er. On direct a ppea l, he argued two issues: that the evidence
presented was no t sufficient to support his conviction and th at the trial court
imposed an excessive sentence because it improperly weighed the enhancing
and mitigating factors. This Court affirmed both his conviction and his sentence
of twenty-five ye ars. State v. Johnny Wayne Harris and Gary L. (J ake) H arris,
No. 03C01-9507-CC-00202, 1996 WL 4035 85, at *6 (T enn. C rim. App .,
Nash ville, July 19, 19 96).
The Defendant filed a pro se petition for post-conviction relief on December
17, 1996. The petition alleged that the Defendant was entitled to post-conviction
relief on the groun ds that: (1) he rece ived ineffective assistance of counsel, (2)
the convicting evidence was insufficient to support his conviction, (3) he received
an excessive sentence, (4) the trial judge erred in allowing certain prejudicial
evidence to be introduced at his tria l, and (5) the trial judge erred by disallowing
certain defens e testimony.
In the order dismissing the petition, the trial judge found that the grounds
concerning the sufficien cy of the ev idence and the propriety of the sentence w ere
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raised on direct appeal and thus had been previously determined. The trial judge
further found that the issues concerning alleged errors of improperly admitting
some evidence and excluding other evidence were waived beca use they we re
not raised on direct appeal, and further, that these grounds would not provide a
basis for p ost-con viction relief.
Regarding the allegation of ineffective assistance of counsel, relevant
portions of the petition for post-conviction relief sta te that th e Def enda nt’s
attorney did no t have th e Def enda nt’s full intere st in m ind, faile d to file meaningful
and “much-needed” motions, failed to file mitigating circumstances regarding
sentencing, did not represe nt the Defend ant zealously, an d perform ed no
investigation of witnesses on the Defendant’s behalf. The trial judge determined
that these allega tions d id not assert a colorable claim because the petition did not
allege any facts relative to sentencing that were not considered at the time the
Defe ndant was sentenced; and the petition did not name any witness whom
counsel should have interviewed, what such a witness’s testimony would have
been, whether he requested counsel to interview such witnesses, or how any
such witness’s testimony would have affected the verdict. We note that the
petition does not suggest what meaningful or “much-needed” motions the
Defendant believes his attorney should have filed.
The 1995 Post-Conviction Procedure Act governs this petition and all
petitions filed after May 10, 1995. See Tenn. Code Ann. § 40-30-201. The Act
provides that a trial court must co nsider a petition within thirty days of its filing and
“examine it together with all the files, records, transcripts, and correspondence
relating to the judgment under attack.” Id. § 40-30-20 6(a). The pre scribed form
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for petitions requires that the grounds for relief be specified and that a petitioner
set out the facts to establish a “colorable claim.” See Tenn. R. Sup. Ct. 28,
§ 2(H). A colora ble cla im is on e “that, if taken as true, in th e light m ost favo rable
to petitioner, would en title petitioner to relief under the Post-Conviction Proced ure
Act.” Id. Furthermore, a petitioner must rebut the presump tion that claims ha ve
either been waived or previously determined. Tenn. Code Ann. § 40-30-204 (e).
“A ground for relief is waived if the petitioner personally or through an
attorney failed to present it for determination in any procee ding before a c ourt of
comp etent jurisd iction in wh ich the gro und co uld have been p resente d . . . .”
Id. § 40-30-206(g). An issue has been previously determined “if a court of
competent jurisdiction h as ruled o n the m erits after a fu ll and fair hearing.” Id. §
40-30-2 06(h).
Then, “[i]f 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 determined, the petition shall be
dismissed. The order of dismiss al sha ll set forth the co urt’s
conclusions of law.”
Id. § 40-30 -206(f).
W e recognize that the Act “co ntem plates the filing of only one (1) p etition.”
See Tenn. Code Ann. § 40-30 -202( c). Th e legis lature c learly ex press ed its w ill
to limit numerous and frivolous challenges to convictions that arose under the
prior law by repealing th e entire former A ct and replacing it with more stringent
requirem ents in the curre nt Post-Conviction Procedure Act. In the case sub
judice, the Defendant timely filed a pro se post-con viction petition . Yet, the Act
provides that:
[f]ailure to state a factu al bas is for the groun ds alle ged s hall res ult in
imme diate dismissal of the petition. If, however, the petition was filed
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pro se, the judge may enter an ord er statin g that th e petitio ner m ust file
an amend ed petition that com plies with this section within fifteen (1 5)
days or the petition will be dismissed.
Id. § 40-30-206(d) (emphasis added). Furthermore, the Rules of Post-Conviction
Procedu re provide that if the trial court determines that “a c olorab le claim is not
asserted by the petition, the cou rt shall enter an order dismissing the petition or
an order requiring that the petition be amen ded.” T enn. R . Sup. C t. 28, §
6(B)(4)(a) (emphasis added ). Thus, w hen a trial c ourt dete rmines that a
petitioner has not presented a colorable claim or that a claim has been waived,
the court may, in its discretion, summarily dismiss the petition without the
appointment of counsel. Almost any ground for relief except ineffective
assistance of counsel may be raised during trial, and failure to raise a ground will
be deeme d a waiver. It appea rs clear that the legislature intended to restrict
somewhat the ability of convicted crimin als to co llaterally attack their convictions.
To a large extent, the availability and extent of post-c onvictio n rem edies lie within
the discretion of the legislature.
W e do not be lieve that the trial court erre d by dism issing this p etition. W e
view the trial court’s rulings that the evidentiary and sentencing issues have been
previo usly determined or waived to be entirely correct. Although the petition
alleges the ineffective assistance of counsel, it does n ot contain a full disclosu re
of the factual basis of the grounds asserted. The petition instead contains bare
allegations of violations of constitutional rights and mere conclusions of law.
Although the sta tute gra nts the trial judg e the d iscretio n to allo w a pro se
petitioner fifteen days within which to amend the petition to comply with the code
section, the statute does not mandate that the judge do so. We believe the trial
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judge acted within h is discretionary authority in summarily dismissing the petition
for post-co nviction relief.
The judgment of the trial court is affirmed.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
THOMAS T. WOODALL, JUDGE
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