Clinton Mason v. State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1998 SESSION
March 25, 1998
Cecil W. Crowson
Appellate Court Clerk
CLINTON MASON, )
) NO. 01C01-9705-CR-00197
Appellant, )
) DAVIDSON COUNTY
VS. )
) HON. J. RANDALL WYATT, JR.,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
THOMAS A. LONGABERGER JOHN KNOX WALKUP
300 James Robertson Parkway Attorney General and Reporter
3rd Floor
Nashville, TN 37201 ELIZABETH B. MARNEY
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
VICTOR S. JOHNSON III
District Attorney General
KATRIN MILLER
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The petitioner, Clinton Mason, appeals the trial court’s dismissal of his
petition for post-conviction relief. The issue presented on appeal is whether the
record is sufficient for this Court to make a determination of effective assistance
of appellate counsel. The judgment of the trial court is affirmed.
I.
The petitioner was convicted of two (2) counts of especially aggravated
kidnapping, one (1) count of especially aggravated robbery, and one (1) count of
aggravated robbery. He received an effective sentence of thirty-five (35) years.
On direct appeal, this Court reduced the sentence to thirty (30) years. See State
v. Shonie Wardell Crisp and Clinton Lamont Mason, C.C.A. No. 01C01-9205-
CR-00177, Davidson County (Tenn. Crim. App. filed January 6, 1994, at
Nashville). Subsequently, this Court denied a petition to rehear, and the
Tennessee Supreme Court denied permission to appeal.
The petitioner then filed a petition for post-conviction relief alleging
ineffective assistance of counsel at both the trial and on appeal. Counsel was
appointed and a hearing was held. The trial court made extensive findings of
fact regarding counsel’s representation at trial and found counsel’s performance
to be within the acceptable range of competence. However, the trial court held
that the inquiry into ineffective assistance of appellate counsel was to be
“conducted by the panel of original review,” leaving that determination to this
Court. The trial court made no findings as to appellate counsel’s effectiveness.
The defendant appeals the trial court’s ruling regarding appellate counsel.
He contends the trial court should have made findings to aid this Court in its
determination, and because the trial court failed to make required findings, this
Court is without jurisdiction to address the issue. He urges this Court to remand
the case to the trial court for specific findings.
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II.
The trial court found that a claim of ineffective assistance of appellate
counsel “is to be conducted by the [appellate] panel of original review.”
Therefore, it did not make findings as to the effectiveness of petitioner’s
appellate counsel. The trial court cited as authority for its decision, State v.
Clark, 774 S.W.2d 634 (Tenn. Crim. App. 1989). However, the statute referred
to by this Court in Clark had been amended at the time of the filing of the instant
petition. Tenn. Code Ann. § 40-30-103 (b)(1)(Supp. 1988), amended by 1993
Tenn. Pub. Act 136, § 2. The new statute provides that “a judge other than the
original hearing judge” may decide competency of either trial or appellate
counsel. Tenn. Code Ann. § 40-30-205 (b)(Supp. 1996). It is the trial court’s
responsibility to make findings as to appellate counsel’s effectiveness. Cooper v.
State, 849 S.W.2d 744, 746 (Tenn. 1993). The trial court committed error in not
making findings as to the performance of petitioner’s counsel on appeal.
III.
The petitioner did not introduce evidence at his post-conviction hearing
regarding effective assistance of appellate counsel. The state elicited from
appellate counsel the only evidence presented at the hearing regarding his
performance. Counsel testified that on appeal he was successful in getting a
five (5) year reduction in the petitioner’s sentence. Contrary to petitioner’s
allegation in his written petition, counsel testified that the appellate record was
properly prepared. Counsel also testified that after the Tennessee Supreme
Court denied permission to appeal, he informed the petitioner of his possible
avenues of redress. These statements were the extent of testimony regarding
effective assistance of appellate counsel.
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IV.
The petitioner failed to introduce any proof at his post-conviction hearing
regarding ineffective assistance of appellate counsel. W e find, therefore, even if
the trial court had made findings of fact, it could not have found the petitioner
met his burden of proving ineffective assistance of appellate counsel by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-210 (f). In considering
the entire record in this cause, we are satisfied that the error committed by the
trial court was harmless beyond a reasonable doubt and find no reason to
remand for further findings. Tenn. R. App. P. 36 (b).
The judgment of the trial court is affirmed.
_________________________
JOE G. RILEY, JUDGE
CONCUR:
_________________________
JOSEPH M. TIPTON, JUDGE
_________________________
DAVID H. WELLES, JUDGE
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