William Howell v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
March 9, 2000
FEBRUARY 2000 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
WILLIAM LEWIS HOWELL, )
) NO. E1999-01502-CCA-R3-PC
Appellant, )
) KNOX COUNTY
VS. )
) HON. MARY BETH LEIBOWITZ,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
LESLIE M. JEFFRESS PAUL G. SUMMERS
P. O. Box 2664 Attorney General and Reporter
Knoxville, TN 37901
R. STEPHEN JOBE
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
RANDALL E. NICHOLS
District Attorney General
CHARME J. KNIGHT
Assistant District Attorney General
400 Main Street
P. O. Box 1468
Knoxville, TN 37901-1468
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE
OPINION
Petitioner, William Lewis Howell, appeals as of right the Knox County
Criminal Court’s dismissal of his petition for post-conviction relief. The sole issue
for review is whether petitioner was deprived of the effective assistance of counsel
with regard to his 30-year sentence for his 1986 conviction for aggravated sexual
battery. After careful review, we AFFIRM the dismissal of the petition.
PROCEDURAL HISTORY
Petitioner was convicted of aggravated sexual battery in 1986, was classified
as a Range II especially aggravated offender, and received a sentence of 30 years.
See Tenn. Code Ann. § 40-35-107 (1982). The conviction and sentence were
affirmed by this Court on direct appeal. State v. William Howell, C.C.A. No. 1113,
Knox County (Tenn. Crim. App. filed June 30, 1987, at Knoxville). Petitioner sought
post-conviction relief. After two summary dismissals by the trial court and two
remands from this Court, this matter was heard on the merits in January 1999.1
Following the hearing, the trial court dismissed the petition.
FACTUAL BACKGROUND
The relevant facts are undisputed. At the time of commission of the instant
aggravated sexual battery, petitioner was on bail for theft of an automobile. Prior
to his conviction and sentence for aggravated sexual battery, petitioner entered into
a plea agreement in 1985 in the automobile theft case whereby he pled guilty to the
lesser-included felony offense of joyriding. See Tenn. Code Ann. § 55-5-104.21
The summary dismissals were ordered by Judge Ray L. Jenkins. Judge Mary Beth
Leibowitz conducted the hearing on the merits.
2
Petitioner was sentenced for joyriding in 1985. At that time joyriding was a felony.
The Sentencing Act of 1989, not relevant here, provides that the unauthorized use of an
automobile is a Class A misdemeanor. See Tenn. Code Ann. § 39-14-106.
2
When petitioner was sentenced for aggravated sexual battery in 1986, he was
deemed an especially aggravated offender based upon the trial court’s finding that
the sexual offense was committed while the defendant was on bail for a prior felony
and was “ultimately convicted of such prior felony.” See Tenn. Code Ann. § 40-35-
107(3)(A)(1982) (repealed and reenacted 1989). 3
Trial counsel did not raise any sentencing issues on direct appeal. Petitioner
now claims his trial counsel was ineffective for failing to argue that his conviction for
the lesser-included felony offense of joyriding was different from the original charge
of automobile theft; therefore, he contends it could not serve as the basis for the
especially aggravated offender status. We respectfully disagree.
ANALYSIS
This Court reviews a claim of ineffective assistance of counsel under the
standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner
has the burden to prove that (1) the attorney’s performance was deficient, and (2)
the deficient performance resulted in prejudice to the defendant so as to deprive
him of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State, 938
S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994);
Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).
In order to address the issue of ineffective assistance of counsel, we must
interpret Tenn. Code Ann. § 40-35-107(3)(A)(1982) which defined an “especially
aggravated offense” as:
(3) A felony committed while on any of the following forms of
release status if such release is from a prior felony conviction:
3
As noted infra, this same language appears in the 1989 Sentencing Act as an
enhancement factor. See Tenn. Code Ann. § 40-35-114(13)(A)(1997).
3
(A) Bail, if the defendant is ultimately convicted of such prior felony ...
It is undisputed that petitioner was on bail for automobile theft when the
instant offense was committed. It is further undisputed that prior to the instant
conviction and sentence, he pled guilty to the lesser-included felony offense of
joyriding and not automobile theft. Thus, the issue is whether a lesser-included
felony offense is encompassed within “such prior felony” as used in the statute. For
criminal offenses, a statute should be construed according to the fair import of their
terms in order to promote justice and to effect the objectives of the criminal code.
State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997).
Although the 1989 Sentencing Act no longer recognizes an especially
aggravated offense, much of the language of the former especially aggravated
offense statute, Tenn. Code Ann. § 40-35-107(1982), now appears under the
enhancement factors section of the present code. See Tenn. Code Ann. § 40-35-
114 (1997). In fact, Tenn. Code Ann. § 40-35-114 (13)(A)(1997) uses the exact
language utilized in former Tenn. Code Ann. § 40-35-107(3)(A)(1982). This Court
has applied this enhancement factor under the 1989 Act where the defendant was
on bail for aggravated assault and was ultimately convicted of felony reckless
endangerment. See State v. Larry Michael Williams, C.C.A. No. 02C01-9201-CC-
00010, Carroll County (Tenn. Crim. App. filed July 1, 1992, at Jackson).
We are of the opinion that a person on bail for a felony offense, who
committed another felony, was an especially aggravated offender under Tenn. Code
Ann. § 40-35-107(3)(A)(1982); provided that person was ultimately convicted of that
specific prior felony or a lesser-included felony offense. The emphasis of the
statute is upon the prior felony conviction, not a specific felony.
4
CONCLUSION
We conclude that counsel was not ineffective for failing to raise this
sentencing issue since petitioner would not have prevailed on the issue.
Concluding that petitioner has failed to establish prejudice as a result of counsel’s
performance, we AFFIRM the judgment of the trial court.
______________________________
JOE G. RILEY, JUDGE
CONCUR:
_______________________________
THOMAS T. WOODALL, JUDGE
________________________________
JAMES CURWOOD WITT, JR., JUDGE
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