State v. Troy Godwin ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST 1999 SESSION
FILED
October 19, 1999
Cecil Crowson, Jr.
TROY LEE GODWIN, ) Appellate Court Clerk
)
Appellant, ) C.C.A. No. 02C01-9811-CC-00364
)
vs. ) Gibson County
)
STATE OF TENNESSEE, ) Hon. Dick Jerman, Jr., Judge
)
Appellee. ) (Post Conviction)
)
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT W. NEWELL PAUL G. SUMMERS
Attorney At Law Attorney General & Reporter
P.O. Box 99
Humboldt, TN 38343 GEORGIA BLYTHE FELNER
Counsel for State
425 Fifth Avenue North
Nashville, TN 37243
CLAYBURN PEEPLES
District Attorney General
BRIAN FULLER
Asst. District Attorney General
110 South College Street, Suite 200
Trenton, TN 38382
OPINION FILED: _____________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The petitioner, Troy Lee Godwin, appeals the Gibson County Circuit
Court’s dismissal of his petition for post-conviction relief. The petitioner raises two
issues: (1) whether he was denied due process of law and equal protection of the
law because the convicting evidence of aggravated rape was insufficient, and (2)
whether the trial court erred in not dismissing the charge of aggravated kidnapping,
which was based upon a theory of complicity, for insufficiency of the convicting
evidence in view of the dismissal of the charge against the principal offender. See
State v. Coleman, 865 S.W.2d 455 (Tenn. 1993). We affirm the trial court’s
judgment.
Following his June 21, 1989 convictions of armed robbery, aggravated
rape, and aggravated kidnapping, the petitioner’s first direct appeal resulted in this
court’s remand for resentencing. State v. Troy Lee Godwin, No. 4 (Tenn. Crim.
App., Jackson, July 25, 1990) (Godwin I). After resentencing and a subsequent
appeal of the sentencing order, this court again reversed for resentencing. State
v. Troy Lee Godwin, No. 02C01-9103-CR-00037 (Tenn. Crim. App., Jackson, Sept.
18, 1991) (Godwin II). After the third sentencing determination, this court modified
the sentences. State v. Troy Lee Godwin, No. 02C01-9206-CC-00139 (Tenn. Crim.
App., Jackson, Feb. 3, 1993) (Godwin III). On May 2, 1996, the petitioner filed a
petition for post-conviction relief, which the trial court dismissed as time-barred.
This court overturned that ruling on direct appeal. Troy Lee Godwin v. State, No.
02C01-9611-CC-00426 (Tenn. Crim. App., Jackson, Sept. 19, 1997) (Godwin IV).
After remand, amendment of the petition, and a hearing held October 15, 1998, the
trial court dismissed the petition for post-conviction relief. It is from this action that
the current appeal is taken.
The 1989 convictions resulted from the 1988 robbery of a shoe store
by the petitioner and a co-defendant, John D. Coleman. Coleman held a pistol and
forced a female clerk to surrender money, and then Coleman had the petitioner wait
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near the door while Coleman raped the female clerk at gunpoint. Godwin I, slip op.
at 2-3. The petitioner was convicted of three offenses: armed robbery, for which
he received a sentence of ten years, aggravated rape, for which he received a
sentence of 25 years, and aggravated kidnapping, for which he received a sentence
of fifteen years. These sentences are running concurrently as a result of Godwin
II and Godwin III.
In Godwin’s co-defendant’s case, State v. Coleman, our supreme
court held that Coleman’s aggravated kidnapping was incidental to the commission
of the other felonies and reversed the conviction based upon State v Anthony.
See Coleman 865 S.W.2d at 957. Anthony holds that due process requirements
forbid a kidnapping prosecution when the confinement, movement or detention of
the victim is “essentially incidental to the accompanying felony”. State v. Anthony,
817 S.W.2d 299, 306 (Tenn. 1991).
In Godwin I, the petitioner argued “that the evidence is not sufficient
beyond a reasonable doubt to convict him of the crimes charged.” Godwin I, slip op.
at 10. This court held that the evidence was sufficient to convict the petitioner “as
aider and abettor in the commission of aggravated kidnapping and aggravated rape,
. . . and jointly guilty with Coleman of the crime of robbery with a deadly weapon.”
Id. at 11. The petitioner did not seek the supreme court’s permission to appeal this
decision.
In the present case, the trial court denied post-conviction relief via an
order which does not specify the grounds for the court’s action; however, the state
argued that the petitioner’s claims were waived and, during the post-conviction
hearing, the court indicated that at least part of the petitioner’s claims “should have
been addressed on . . . direct appeal.”
Both of the petitioner’s appellate issues are predicated upon a claim
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of insufficiency of the convicting evidence. Because the sufficiency of the evidence
was raised and resolved on direct appeal in Godwin I, we conclude that all
sufficiency of the evidence issues have been either previously determined or
waived. See Tenn. Code Ann. § 40-30-206 (f), (g), (h) (1997). Accordingly, the
issues raised on this appeal as sufficiency issues were properly dismissed.
We have considered whether the petitioner’s second issue, which is
grounded upon the result in Coleman, although not now cognizable as a sufficiency
issue, might be reviewed as a straightforward issue of constitutional error. At the
time this court filed its opinion in Godwin I, Anthony had not been decided.
Moreover, there apparently had never been a hearing in the petitioner’s case on the
Anthony issue, and accordingly, the Anthony constitutional issue had not been
previously determined insofar as the petitioner is concerned. See Tenn. Code Ann.
§ 40-30-206(h) (1997).
However, we are constrained to conclude that this issue has been
waived. An issue is “waived if the petitioner personally or through an attorney failed
to present it for determination in any proceeding before a court of competent
jurisdiction.” Tenn. Code Ann. § 40-30-206(g) (1997). An exception is provided
when the claim is based upon a constitutional right that “was not recognized as
existing at the time of trial.” Tenn. Code Ann. § 40-30-206(g)(1) (1997). The
problem for the petitioner in avoiding the waiver rule is that, in State v. Denton, 938
S.W.2d 373 (Tenn. 1996), our supreme court said that Anthony did not create a
newly recognized constitutional right. Denton, 938 S.W.2d at 377. In light of this
determination, the failure to raise the Anthony issue on direct appeal constitutes
waiver.
For the reasons explained above, we affirm the judgment of the trial
court.
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_________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_______________________________
DAVID H. WELLES, JUDGE
_______________________________
JERRY L. SMITH, JUDGE
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