Womac v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMBER 1997 SESSION
December 23, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
RICKY LEE WOMAC, )
) C.C.A. No. 03C01-9608-CR-00294
Appellant, )
) McMinn County
V. )
) Honorable Mayo L. Mashburn, Judge
)
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Ricky Lee Womac, Pro Se John Knox Walkup
Northeast Correctional Center Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683 Peter M. Coughlan
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Jerry N. Estes
District Attorney General
203 E. Madison Avenue
P.O. Box 647
Athens, TN 37371
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Ricky Lee Womac, was convicted of facilitation to commit
first degree murder. On direct appeal his conviction was affirmed by this Court.
Thereafter, the appellant filed a petition seeking post-conviction relief. The trial
court summarily dismissed the petition without an evidentiary hearing finding the
allegations, even if taken as true, did not state a claim upon which relief could be
granted. Approximately forty-seven days after the trial court’s dismissal became
final, the appellant filed a notice of appeal to this Court. Upon review, we affirm.
The state argues that the appellant did not timely file his notice of appeal
in accordance with T.R.A.P. 4(a). Therefore, the state contends this appeal is
time barred. We agree that the appellant did not timely file his notice of appeal.
However, we see no prejudice accruing to the state in considering the appellant’s
allegations. Therefore, in the interest of justice, we waive the appellant’s
untimely filing. State v. Mullins, 767 S.W.2d 668 (Tenn. Crim. App. 1988).
The appellant alleges that he received ineffective assistance of counsel.
Specifically, he claims that his trial counsel communicated to him through his
mother, failed to investigate allegations that he had been beaten by jail officials,
and failed to pursue claims of an illegal investigation of the crime scene.
It is well settled that a clear but patently nonmeritorious petition may be
dismissed summarily. Martucci v. State, 872 S.W.2d 947 (Tenn. Crim. App.
1993). A petition which is unclear to the extent that it cannot be so dismissed
requires the appointment of counsel. Id. at 949. If the appointed counsel
determines that the appellant has a valid ground to proceed, he or she should
file an amended petition. Id. Tenn. Code Ann. § 40-30-206(f) states that:
Upon receipt of a petition in proper form, or upon
receipt of an amended petition, the court shall
examine the allegations of fact in the petition. If 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
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determined, the petition shall be dismissed. The
order of dismissal shall set forth the court’s
conclusions of law.
Tenn. Code Ann. § 40-30-206 (Supp. 1996)
Upon review of the petition, we find that the appellant’s petition is artfully
drafted. It alleges unambiguous claims as well as the facts to support these
claims. Therefore, it is proper for summary disposition if the trial court correctly
determines that the claims do not allege grounds upon which relief can be
granted.
The appellant’s allegation regarding his alleged beating by jail officials
occurred after his trial and convictions. The trial court was correct in finding that
this allegation is irrelevant in determining whether the appellant received
effective trial representation. The appellant also alleges that his trial attorney
communicated with him through his mother. He does not allege that his attorney
failed to communicate with him; he simply objects to the attorney’s channel of
communication. This claim fails to allege any harm or prejudice suffered by this
type of consultation. Next, the appellant alleges that “although the subject [the
illegal investigation of the crime scene] was presented at trial, counsel refused to
pursue the subject in the Court of Criminal Appeals.” This allegation clearly
illustrates the appellant’s dislike of the outcome concerning this issue, but does
not prove that he received ineffective assistance of counsel. 1
Upon consideration of the appellant’s issues, this Court finds that the trial
court was correct in summarily disposing of the appellant’s petition. None of the
1
Although the trial transcript is not before us, we note that the post-conviction hearing judge
also presided over the appellant’s trial. In his written order dismissing the appellant’s petition, he
stated that he had reviewed the 1,411 page record of the appellant’s trial. He found that the
appellant’s attorney filed 16 pretrial motions on the appellant’s behalf. Furthermore, he stated that the
appellant’s attorney “demonstrated a degree of preparation equal to or above any defense attorney
this Court has encountered in 10 years of trying criminal cases.”
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allegations, even if proven true, would demonstrate that the appellant received
ineffective assistance of counsel.
AFFIRMED
________________________________
PAUL G. SUMMERS, Judge
CONCUR:
______________________________
JOSEPH B. JONES, Presiding Judge
______________________________
J. CURWOOD WITT, JR., Judge
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