Helton v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MAY 1997 SESSION
September 18, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
DARRELL E. HELTON, )
) No. 03-C-01-9608-CR-00320
APPELLANT, )
) Hawkins County
v. )
) James E. Beckner, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
APPELLEE. )
FOR THE APPELLANT: FOR THE APPELLEE:
Gerald T. Eidson John Knox Walkup
205 Highway 66 South Attorney General & Reporter
Rogersville, TN 37857 500 Charlotte Avenue
Nashville, TN 37243-0497
Janis L. Turner
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
C. Berkeley Bell, Jr.
District Attorney General
109 South Main Street, Suite 501
Greeneville, TN 37743
J. Douglas Godbee
Assistant District Attorney General
Hawkins County Courthouse
Rogersville, TN 37857
OPINION FILED: ______________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
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The appellant, Darrell E. Helton (petitioner), appeals as of right from a judgment of
the trial court dismissing his suit for post-conviction relief following an evidentiary hearing.
In this Court, the petitioner contends he was denied his constitutional right to the effective
assistance of counsel because counsel failed to brief an issue in this Court on direct
appeal. After a thorough review of the record, the briefs submitted by the parties, 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.
The petitioner was convicted of aggravated child abuse. The trial court sentenced
the petitioner to confinement for twelve (12) years in the Department of Correction. This
court affirmed the petitioner’s conviction and sentence. Donna Bailey and Darrell Eugene
Helton v. State, Hawkins County No.03-C-01-9207-CR-00266, 1993 WL 480428 (Tenn.
Crim. App., Knoxville, November 22, 1993). The supreme court denied the petitioner’s
application for permission to appeal on April 4, 1994.
Counsel for the petitioner filed a motion for a change of venue. It appears the
motion was predicated upon “some pretrial publicity.” Counsel argued the motion. The
trial court took the motion under advisement to see if a fair and impartial jury could be
selected to decide the guilt of the petitioner. Concluding that a fair and impartial jury was
impaneled, the trial court dismissed the motion for a change of venue.
The attorney who represented the petitioner testified on behalf of the state during
the evidentiary hearing. He testified there were three major issues which had merit. While
he did not believe the defendant would be granted relief on the change of venue issue, he
nevertheless placed the issue in the brief at the last moment. According to this Court’s
opinion, counsel failed to brief the issue. This Court held the issue had been waived. See
Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. Rule 10.
The constitutional right to the effective assistance of counsel extends to the
representation of an accused in the appellate courts. Evitts v. Lucey, 469 U.S. 387, 105
S. Ct. 830, 83 L. Ed. 2d 821 (1985). As the United States Supreme Court said in Evitts:
[N]ominal representation on an appeal as of right . . . does not
suffice to render the proceedings constitutionally adequate; a
party whose counsel is unable to provide effective
representation is in no better position than one who has no
counsel at all.
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469 U.S. at 396, 105 S.Ct. at 836, 83 L.Ed.2d at 830. In other words, appellate counsel
must function as an advocate and actively promote the client’s position by scrutinizing the
record for error and by presenting legal arguments favorable to the accused. See Anders
v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Mylar v. Alabama, 671
F.2d 1299 (11th Cir. 1982), reh’g denied en banc, 677 F.2d 117 (11th Cir. 1982), cert.
denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983).
Before a petitioner is entitled to relief based upon the ineffective assistance of
counsel, he must establish by a preponderance of the evidence (a) counsel made errors
so serious that counsel was not functioning as counsel guaranteed by the Sixth
Amendment to the United States Constitution and Article I, § 9 of the Tennessee
Constitution and (b) counsel’s errors were so serious as to deprive the defendant of his or
her appeal as of right or a serious issue raised in the appellate court. See Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Porterfield v. State,
897 S.W.2d 672, 677 (Tenn. 1995); Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). In this
case, the petitioner established counsel erroneously failed to support the issue regarding
a change of venue with an argument. However, the petitioner has failed to establish he
was prejudiced by counsel’s error in this regard.
____________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________
JOSEPH M. TIPTON, JUDGE
______________________________________
CURWOOD WITT, JUDGE
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