State v. Gilmore ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1998 SESSION
FILED
March 19, 1998
Cecil Crowson, Jr.
CHARLIE GILMORE, JR., ) Appellate C ourt Clerk
) No. 02-C-01-9611-CR-00421
APPELLANT, )
) Shelby County
v. )
) Chris Craft, Judge
STATE OF TENNESSEE, )
) (Post-Conviction Relief)
APPELLEE. )
FOR THE APPELLANT: FOR THE APPELLEE:
Deborah M. Henderson John Knox Walkup
Attorney at Law Attorney General & Reporter
50 North Front Street, Suite 1150 425 Fifth Avenue, North
Memphis, TN 38103 Nashville, TN 37243-0493
Elizabeth T. Ryan
Assistant Attorney General
425 Fifth Avenue, North
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Jerry R. Kitchen
Assistant District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
OPINION FILED: ______________________________
AFFIRMED PURSUANT TO RULE 20
Joe B. Jones, Presiding Judge
OPINION
The appellant, Charlie Gilmore, Jr. (petitioner),1 appeals as of right from a judgment
of the trial court dismissing his post-conviction action after an evidentiary hearing. In this
court, the petitioner contends the evidence contained in the record establishes he was
denied his constitutional right to the effective assistance of counsel. After a thorough
review of the record, the briefs submitted by counsel, and the law governing the issue
presented for review, it is the opinion of this court that the judgment of the trial court should
be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals. The evidence
contained in the record does not preponderate against the trial court’s findings of fact.
The petitioner claims his lawyer failed to interview two witnesses. The attorney who
represented the petitioner testified the petitioner did not provide him with one of the names,
and the second witness, the petitioner’s sister, could not be located. The petitioner did not
know the surname of one witness, but testified he “[could] find out” this person’s name.
Nevertheless, the petitioner did not present the testimony of either alleged witness during
the evidentiary hearing. In short, the petitioner failed to establish he was prejudiced by trial
counsel’s alleged failure to locate and interview the petitioner’s sister. Black v. State, 794
S.W.2d 752, 757-58 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).
The petitioner alleges trial counsel failed to formulate a defense. The petitioner’s
mother was his chief witness. She died while this case was pending in the trial court. The
testimony of the other defense witness was not helpful. The trial attorney testified the
chances of the petitioner being acquitted were extremely “dim.” Trial counsel was
successful in having a twenty-year offer reduced to fifteen years, the minimum punishment
for the offense.
The trial attorney did not cause the petitioner to change his plea from not guilty to
guilty. The attorney explained the circumstances to the petitioner, provided him with the
guilty plea forms, and left the room. When the attorney returned, the petitioner had signed
the forms. The defendant was aware of the guilty plea procedure and the effect of such
a plea because he entered a plea of guilty to sexual battery three years before the guilty
plea in question. The transcript of the submission hearing supports the trial court’s findings
1
The petitioner was indicted and convicted as “Charlie Gilmore.” “Charlie Gilmore”
and “Charlie Gilmore, Jr.” are the same person.
2
of fact.
_____________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
_______________________________________
JOHN H. PEAY, JUDGE
_______________________________________
THOMAS T. WOODALL, JUDGE
3