State v. Blaylock ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
FEBRUARY SESS ION, 1998 July 9, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
FRANCES BLAYLOCK, ) C.C.A. NO. 03C01-9706-CR-00217
)
Appe llant, )
)
) MCMINN COUNTY
VS. )
) HON. JAMES C. WITT
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Co nviction Re lief)
FOR THE APPELLANT: FOR THE APPELLEE:
LAURA RULE HENDRICKS JOHN KNOX WALKUP
Eldridge, Irving & Hendricks Attorney General and Reporter
606 W. Main Street
Knoxville, TN 37901-0084 TODD R. KELLEY
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
JERRY N. ESTES
District Attorney General
STEVE HAWKINS
10th Judicial District
P. O. Box 647
Athens, TN 37303
OPINION FILED ________________________
REVERSED AND REMANDED
JERRY L. SMITH, JUDGE
OPINION
Appellant Frances Blaylock appeals the trial court's denial of her petition
for post-c onvictio n relief. Appellant presents the following issue for our
consideration on this appeal: whether the trial court erred in dismissing
Appe llant's petition fo r post-co nviction relief.
After a review of the record, we reverse the judgment of the trial court and
remand with directions to that court to consider Appellant's allegation of
ineffec tive ass istanc e of trial c ouns el.
I. FACTUAL BACKGROUND
Appellant was convicted on January 18, 1987 by a jury in the McMinn
Coun ty Criminal Court of conspiracy to commit first degree murder and first
degree murder. She was sentenced to two concurrent life sentences with the
Tennessee Depa rtment o f Correc tion. This C ourt affirm ed the co nvictions. State
v. France s Blayloc k and R obert C hristian Sm ith, C.C.A. No. 152 , McMin n Cou nty
(Tenn. Crim. App., Knoxville, September 30), perm. to appeal denied, (Tenn.
1988). On December 4, 1990, Appellant filed a petition for post-con viction relief.
Counsel amended this petition on Februa ry 11, 1991. Following a hearing, the
trial court dismissed the petition on February 11, 1991 on the ground that the
allegations set forth in the petition had been previously litigated. Although
Appe llant's counsel agreed to draw up an order stating the trial court's dismissal
and reasons therefor, no such order was entered. On November 8, 1996, the
trial court a ppoin ted the Public Defe nder's Office to represent Appellant. On
December 7, 1996, Appellant's new counsel filed an amendment to the
December 4, 1990 petition, as a mende d on Febru ary 11, 1991. In a nunc pro
-2-
tunc order reflecting its earlier February 1 1, 1991 dism issal, the trial court
dismissed the petition on January 28, 1997.1
II. POST-CONVICTION RELIEF
Appellant contends that the trial court erred in denying her petition for p ost-
conviction relief.
In post-conviction proceedings, the Appellant bears the burden of proving
the allegations raised in the petition by a preponderance of the evidence.2
Tidw ell v. State, 922 S.W.2d 497, 500 (Tenn. 1996); Wa de v. State , 914 S.W.2d
97, 101 (Ten n. Crim. App . 1995). Moreo ver, the trial court's findings of fact are
conclusive on appea l unless the evidenc e prepo nderate s agains t the judgm ent.
Tidw ell, 922 S.W .2d at 500 ; Cam pbell v. State, 904 S.W.2d 594, 595-96 (Tenn.
1995); Coop er v. State , 849 S.W .2d 744, 746 (Tenn. 199 3).
Appellant filed her first pe tition for post-conviction relief on December 4,
1990. This petition was filed by Attorney Ashley L. Ownby--an associate of
Appe llant's trial cou nsel, Mr. Conrad Finnel. In this petition, Appellant conceded
that "All questions raised in this petition have been raised unsuc cessfully in s tate
courts." See S tate v. Fran ces Bla ylock and Robe rt Christian Smith, C.C.A. No.
152, McMin n Cou nty (Ten n. Crim. A pp., Kno xville, Septe mber 3 0), perm. to
appeal denied, (Tenn. 1988). Mr. Finnel amended the December 4 petition on
February 11, 19 91.O n that s ame day, the trial cou rt dism issed the pe tition but
never entere d an o rder re flecting this dism issal.
1
Between the petition at issue in the present appeal and the nunc pro tunc order, Appellant filed a
second pro se petition for post-conviction relief on September 30, 1992. On December 1, 1992, the trial
court dism issed this secon d petition witho ut appoin ting coun sel or hold ing an evid entiary hea ring.
Because this petition is not the subject of the case sub judice, it is unnecessary to discuss it further.
2
For post-conviction claims filed after May 10, 1995, the petitioner must prove his factual allegations
by clear an d convin cing evide nce. Te nn. Cod e Ann. § 40-30-2 10(f). See als o Scott v. S tate, 936 S.W.2d
271, 272 (Tenn. Crim . App. 1996).
-3-
Tenn. Code Ann. § 4 0-30-11 8(b) (199 5 Rep l.), which wa s in effect when
Appe llant's first petition was filed,3 provided, "Upon the final disposition of every
petition, the co urt sha ll enter a final order, and. . . shall set forth in the order 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.
Code A nn. § 40-30-1 18(b).
On November 8, 1996, the trial cou rt appo inted th e Pub lic Defe nder's
Office to represent Appellant in filing a petition for post-conviction relief alleging
ineffective assistance of trial coun sel. An attorne y with the Public Defe nder's
Office filed the petition on December 7, 1996. In this petition, Appellant
incorporated by reference the earlier petition of December 4, 1990, as amended
on February 11, 1991. Additionally, this petition alleged that Attorney Conrad
Finnel rendere d inade quate re presen tation by failing to com ply with a trial court
order requiring that the prosecution be furnished with the identity of any expert
witnesses who had examined Appellant respecting claims of insanity. 4 By not
complying with this order, the petition alleges tha t Mr. Finnel deprived Appellant
of the opportunity to present expert testimony that she suffered from battered
woman syndrome at the time of the offense, and therefo re was not fully crimin ally
respo nsible for the homicide. The trial court held no e videntiary h earing to
consider Appe llant's in effective assista nce o f coun sel claim . On January 28,
1997, the trial court issued an order nunc pro tunc reflecting its February 11,
1991 d ismissa l of Appe llant's petition fo r post-co nviction relief.
3
Tenn. Code Ann. §§ 40-30-101 through 40-30-124 were repealed. The General Assembly enacted
the Pos t-conviction Proced ure Act o f 1995, c odified at T enn. Co de Ann . § 40-30 -201, et seq.
4
The State does not dispute Attorney Finnel's failure to comply with the trial court's order.
-4-
The January 28, 1997 order does not set forth Appellant's allegations and
does not state the trial court's findings of fact and conclusions of law.
Additionally, Appellant's ineffective assistance claim has never before been
raised in any prior p ost-con viction petition. We find that Appellant's ine ffective
assistance of counsel claim has never been given a fair hearing and
consideration. We, therefore, remand to the McMinn County Criminal Court and
direct it to properly d ispose o f Appella nt's allegation of inadequate representation.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
THOMAS T. WOODALL, JUDGE
___________________________________
WILLIAM B. ACREE, JR., SPECIAL JUDGE
-5-