Bruce M. Vann v. State of Tennessee ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 10, 2006
BRUCE M. VANN v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Madison County
No. C04-251 Donald H. Allen, Judge
No. W2004-03033-CCA-R3-PC - Filed February 9, 2006
The petitioner, Bruce M. Vann, appeals the denial of his petition for post-conviction relief,
contending that the trial court erred in finding that counsel rendered effective assistance at trial.
Upon review, we conclude that the sole issue raised by the petitioner on appeal has been waived for
failure to support it with argument or citations to the appellate record. Therefore, we affirm the
denial of post-conviction relief, pursuant to Rule 20, Rules of the Court of Criminal Appeals.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
ALAN E. GLENN , JJ., joined.
J. Colin Morris, Jackson, Tennessee, for the appellant, Bruce M. Vann.
Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; James
G. (Jerry) Woodall, District Attorney General; and Alfred L. Earls, Assistant District Attorney
General, for the appellee, State of Tennessee.
MEMORANDUM OPINION
In October 2001, a Madison County jury found the petitioner guilty of one count of
aggravated assault, and the trial court sentenced him to six years as a Range I, standard offender.
The conviction was affirmed on direct appeal to this court. See State v. Bruce Marvin Vann, No.
W2002-00161-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 286 (Tenn. Crim. App., at Jackson,
Mar. 31, 2003), appeal denied, (Tenn. Oct. 6, 2003). On June 9, 2004, the petitioner filed a pro se
petition for post-conviction relief alleging, inter alia, ineffective assistance of counsel. Upon
preliminary review, the post-conviction court determined that the petition presented a colorable
claim, and the court then appointed counsel. On December 20, 2004, the hearing was held on the
matter and, thereafter, an order denying relief was entered. Counsel for the petitioner filed a notice
of appeal document on December 27, 2004. Since the petitioner alleged ineffective assistance of
counsel, it was the petitioner’s burden in the post-conviction court to prove the allegations by clear
and convincing evidence. T.C.A. § 40-30-110(f). Furthermore, we are required to affirm the post-
conviction court’s findings unless the petitioner proves that the evidence preponderates against those
findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
In order to prove ineffective assistance of counsel, the petitioner must prove (1) that
counsel’s performance was deficient, and (2) that the deficiency was prejudicial in terms of rendering
a reasonable probability that the result of the trial was unreliable or the proceedings were
fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).
The Tennessee Supreme Court has also applied this standard to the right to trial counsel under
Article I, Section 9 of the Tennessee Constitution, State v. Melson, 772 S.W.2d 417, 419 n. 2 (Tenn.
1999), and the right to counsel on direct appeal under the Fourteenth Amendment. Campbell v.
State, 904 S.W.2d 594, 596 (Tenn. 1995).
The petitioner’s argument consists, in toto, of the following:
It is [the petitioner’s] position that [trial counsel] did not properly investigate
the facts as she should have in his case. It is the [p]etitioner’s position that he has
proven by clear and convincing evidence that [trial counsel] was ineffective as his
lawyer. Scott v. State, 936 S.W.2d 271 (Tennessee Criminal Appeals 1996) T.C.A.
40-30-210. It is [the petitioner’s] position that [trial counsel’s] representation was
deficient and because of that it was prejudicial. State v. Bond, 6 SW2nd 3rd 453
(Tenn. 1999).
It is the [p]etitioner’s position that [trial counsel’s] performance as a lawyer
fell below an objective standard of reasonableness under prevailing professional
norms. Strickland v. Washington, 466 U.S. 688.
In response, the State contends that the petitioner has waived the only issue he raises on appeal for
failure to cite to the record, and further, that the post-conviction court did not err in denying relief
as counsel rendered effective assistance at trial.
At the outset, we agree with the State’s assessment that the petitioner has failed to include
citations to the record and further note that he has failed to support his issue with argument. His
broad assertions, completely devoid of support, certainly fail to meet the standard of Rule 10(b),
Rules of the Court of Criminal Appeals, which states:
Issues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived in this court.
As such, the issue has been waived.
In any event, the petitioner has certainly failed to demonstrate that the evidence preponderates
against the findings of the post-conviction court. The transcript of the hearing reflects that trial
counsel’s preparedness was in dispute and that the post-conviction court accredited the testimony
of counsel, finding that:
As to the matter of effective assistance of Counsel the Court finds that [counsel] did
discovery and visited the [petitioner] on at least three occasions. [Counsel] did a good
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job at representing the [petitioner] at trial. This was a case with conflicting testimony
and it boiled down to a question of fact and credibility for the jury to decide. The
jury accredited the State’s version of events. The Court does not find anything that
[counsel] did or failed to do that arises to the level of ineffective assistance of
counsel and this issue is denied.
Therefore, notwithstanding waiver, it is our determination that the petitioner has failed to meet his
burden, and the denial of relief is affirmed in accordance with Rule 20 of the Court of Criminal
Appeals of Tennessee.
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JOHN EVERETT WILLIAMS, JUDGE
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