State v. Zip Gillespie ( 1999 )

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
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