Larry Anthony Wade ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
SEPTEMBE R SESSION, 1999
LARRY A. WADE,
01C01-9809-CR-00378
)
)
C.C.A. NO.
FILED
Appe llant, ) November 24, 1999
)
) DAVIDSON Cecil Crowson, Jr.
COUNTY Appellate Court Clerk
VS. )
) HON. SETH
NORMAN,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
RAYBURN McGOWAN, JR. PAUL G. SUMMERS
Washington Square Building Attorney General and Reporter
222 Se cond A venue N orth
Suite 350M KIM R. HELPER
Nashville, TN 37201 Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
LISA NAYLOR
Assistant District Attorney General
Washington Square, Suite 500
222 Se cond A venue N orth
Nashville, TN 37201-1649
OPINION FILED ________________________
REVERSED AND REMANDED
DAVID H. WELLES, JUDGE
OPINION
The Defe ndan t, Larry A nthon y W ade, J r., appe als as of right from the trial
court’s dismissal of his petition for post-conviction relief. We reverse the order
of the trial court and remand for findings of fact and conclusions of law as
required by the legislature.
The Defendant pleaded guilty to and was convicted of one count of
attempted second degree murder and one count of posse ssion of m ore than .5
grams of cocaine with intent to sell or deliver. In exchange for his guilty pleas,
he received concurrent twelve-year sentences as a Range I offender. In addition,
other charges were dismissed.
The Defendant subsequently filed a pro se petition for post-conviction
relief. The petition allege d that his conviction w as the result of ineffective
assistan ce of cou nsel and that his gu ilty pleas were unlawfully induced and not
volunta rily entered. The petition alleged that his attorney failed to conduct any
factual investigation of the case and failed to advise him of the consequences of
his plea. An amended pro se petition, apparently filed at the same time the
original petition was filed, alleged that Defendant’s counsel told the Defendant
if he did not ac cept th e plea agree men t in state cou rt he wo uld be indicte d in
federal court and therefore face more jail time. The amended petition alleged
that counsel failed to intervie w witnes ses an d failed to o btain or listen to the tape
recordin g mad e of the co caine sa le alleged ly made by the De fendan t.
The trial court appointed counsel to represent the Defendant during the
post-conviction proceedings. An evidentiary hearing was conducted. At the
evidentiary hearing , the Defe ndant te stified that he was seve nteen years o ld
when he was charged with these offenses and that the charges were transferred
-2-
from juvenile court to criminal court. He testified that he told his attorney that the
attempted murder charge “was a lie” and that he gave his attorney the names of
witnesses concerning this charge but that his attorney never talked to any of the
witnesse s. He furth er testified tha t he wan ted to go to trial but that his attorney
would not let him. He testified that he did not have any cho ice but to p lead gu ilty
because his atto rney m ade n o inves tigation of his ca se. He said that his attorney
told him if he did not plead guilty in s tate co urt, he w ould be prosecuted in federal
court and receive a longer sentence.
The only other witness to testify at the post-conviction hearing was the
Defe ndan t’s former attorney. The attorney testified that the Defenda nt did give
him the na mes of witne sses , but the attorne y could not recall whether he talked
to any of those witnesses. The attorney also stated that he was aware that there
was supposedly a tape recording of the drug transaction but that he did not think
that he ever listened to that tape. He testified that investigating the case and
preparing for trial basically “became moot” because he found out that the federal
authorities were going to prosecute the Defendant. Because the attorney
believed that his client w ould receive more time if prosecuted in federal court, he
then attempted to negotiate a plea agreement which would include an agreement
that his client would not be prosecuted in federal court. He said th at all of th is
was thoroughly discussed with the Defendant. As a result of the negotiations, he
testified that he believed the Defenda nt’s guilty plea was kn owing and voluntary.
The record o n appe al contain s no judg ment o r order of the trial court
denyin g relief or dismissing th e petition. At the conc lusion of the eviden tiary
hearing, the post-conviction court made no oral findings of fact or conclusions of
law other th an ob serving that the convic tions w ere the result o f a plea barga in
and sta ting,
Mr. Funk [trial counse l] did an exc ellent job for th is man . And then
he didn’t investigate the case because the man wanted to plead
here so he wouldn’t get all that court time in federal court. Now,
-3-
your man wants to say, oh, he didn’t do a good job and I got too
much time her e.
Petition denied. Mr. Funk did an excellent job.
Without reach ing the merits of this proceeding, we must remand this cause
to the trial court for entry of a final order and for findings of fact and conclusions
of law regarding each ground presented in the petition. Although it is apparent
that the trial judge be lieved the p lea agre emen t was favo rable to the Defe ndant,
the judge did not add ress the D efenda nt’s asse rtions that his attorney ’s
inadeq uate investigation and lack of preparation resulted in a guilty plea which
was not voluntarily and understandingly given.
The Post-Conviction Procedure Act adopted by our legislature requires,
Upon the final disp osition of every petition, the c ourt shall
enter a final order, and except where proceedings for delayed
appeal are allowe d, shall set forth in the o rder or a written
memorandum of the case all grounds presented, and shall state the
findings of fact and conclusions of law with regard to each such
ground.
Tenn. C ode Ann . § 40-30-211 (b) (empha sis added).
The statute is clear and unambiguous. Although the reasons for the
statutory mandate seem apparent, this Court has noted that
[t]he duty to enter findings of fact and conclusions of law as to each
ground alleged is mandatory as the appellate courts may o nly
review the find ings o f the trial c ourt. N ot only d o the tria l court’s
findings facilitate appellate review, but, in many c ases, are
neces sary for su ch review .
Ron ald Bradford Wa ller v. State, No. 03C01-9702-CR-00054, 1998 WL 743654,
at *6 (Tenn. Crim. A pp., Kno xville, Oct. 15, 1 998) (citatio n omitted ); see also
Claude Francis Garrett v. S tate, No. 01C01-9807-CR-00294, 1999 WL 436828(Tenn. Crim. A pp., Nas hville, June 30, 199 9); Steve E . Todd v. State, No. 01C01-
9612-CR-00503, 1999 WL 30678 (Tenn. Crim . App., Nash ville, Jan. 26, 1999);
Joe L. Utley v. Sta te, No. 01C01-9709-CR-00428, 1998 WL 846577 (Tenn. Crim.
App., Nas hville, Dec. 8, 1998).
-4-
This case is rem anded for the purpose o f permitting the trial court to enter
its findings of facts and conclusions of law as to each ground alleged in the
Defendant’s petition. No further proo f is necessary. O nce the trial court enters
its order, the Defendant may again appeal as of right, if he so desires.
According ly, the rulin g of the tria l court is revers ed, an d this ca se is
remanded in orde r to perm it the trial court to revisit the grounds raised by the
Defendant in his original and amended petitions and, thereafter, enter findings of
fact and c onclusio ns of law a s require d by the P ost-Co nviction A ct.
____________________________________
DAVID H. WELLES, JUDGE
-5-
CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
JOHN EVERETT WILLIAMS, JUDGE
-6-