Pease v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
DECEMBER SESSION, 1998 FILED
February 2, 1999
Cecil Crowson, Jr.
FRANK C. PEASE, ) Appellate C ourt Clerk
) No. 03C01-9804-CR-00132
Appellant )
) HAMILTON COUNTY
vs. )
) Hon. R. Steven Bebb, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee )
For the Appellant: For the Appellee:
Frank C. Pease, Pro Se John Knox Walkup
8400 Middelbrook Pike, Apt. H-25 Attorney General and Reporter
Knoxville, TN 37923
Ellen H. Pollack
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
William H. Cox III
District Attorney General
David Denny
Asst. District Attorney General
City and County Courts Bldg.
Chattanooga, TN 37402
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Frank C. Pease, appeals the dismissal of his pro se petition
for post-conviction relief by the Hamilton County Criminal Court.1 On December 12,
1994, the appellant entered guilty pleas to the offenses of attempt to commit
aggravated perjury and hindering a secured creditor, both class E felonies, in the
Hamblen County Criminal Court.2 The court sentenced the appellant to one year on
each count to be served concurrently as a Range I standard offender. On June 19,
1995, the appellant filed a petition for post-conviction relief collaterally attacking his
felony convictions in the Hamblen County Criminal Court. The appellant’s post-
conviction hearing was scheduled for June 16, 1997, in the Hamilton County
Criminal Court. Because the appellant failed to appear at his scheduled hearing, his
petition was dismissed. The appellant now appeals from this ruling.
After review, we affirm the dismissal.
I. Background
The proceedings before us present a troubled and protracted procedural
history. Six trial judges have participated in varying degrees in these proceedings.3
In addition, appointment of district attorneys general pro tem have been
1
The appe llant’s petitio ns w ere in itially filed in the c oun ty of co nvictio n, Ha mb len C oun ty,
but w ere la ter tra nsfe rred to Ha milto n Co unty to facilita te rev iew d ue to the fa ct tha t Hon orab le
Gary Gerbitz of Hamilton County was designated by the supreme court to preside over the
procee dings.
2
The appellant’s convictions stem from his concealment and sale of woodworking
equ ipm ent u sed as co llatera l in obta ining a loan f rom Jeff erso n Fin anc ial Se rvice s. In a prior c ivil
procee ding, the ap pellant perju red him self by stating that he ha d not disp osed o f the equ ipme nt.
3
Those judges include: Judges Porter, Beckner, Wexler, Gerbitz, Stern and Bebb. Two
substitutions were occasioned by retirement; the rem aining designations by the supreme co urt
were necessitated by the appellant’s actions in alleging judicial misconduct or recusal by the trial
judge fo r conflicts o f interest.
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necessitated as well as substitutions of defense counsel.
In seeking post-conviction relief, the appellant contends that his guilty pleas
were “inadvertently and involuntarily” entered and he was denied the effective
assistance of counsel. In support of these grounds, he alleges, among other things,
(1) that he was denied insulin at the Hamblen County jail the night before he entered
his guilty pleas, resulting in impaired cognitive responses at his guilty plea hearing;
(2) that because in all likelihood he would have been attired in a jail “COUNTY
ORANGE JUMPSUIT” and . . . would not be “CLEAN SHAVEN" . . . [h]e felt
frightened and threatened; (3) that he was denied a speedy trial; (4) that his lawyers
lied to him; (5) that the district attorney general’s office violated his rights; and (6)
judicial misconduct by the trial judge.4
In May of 1997, the appellant contacted the court and requested a "speedy
hearing" on his post-conviction petition and gave the court a Connecticut telephone
number where he could be contacted. The record indicates that the appellant had
requested transfer of his probationary status to Connecticut and had relocated to
that state at this time. On June 1, 1997, the post-conviction court contacted the
appellant by leaving a message with an answering service, informing him that his
hearing was set for June 16, 1997. Sometime after business hours on Friday, June
13, a female identifying herself as the appellant’s secretary left a message with the
court that the petitioner was “out of town on business” and would be unable to
attend the hearing. The post-conviction judge became aware of this message the
following Monday morning en route from Athens to Chattanooga.
4
The appellant, on July 17, 1995, filed a second petition for post-conviction relief, arising
from a guilty p lea to ass ault, w hich was dism isse d. Th e des ignat ed po st-co nvictio n jud ge on this
date, Honorable Gary Gerbitz, found that the issues alleged "were waived by the plea of guilty and
do not rise to a cons titutional level." In this pe tition, the appe llant alleged th at the Ha mble n Cou nty
general sessions judge, Criminal Court judges, the Criminal Court clerk’s office, members of the
district attorney general’s office and num erous criminal defense lawyers “cons pired” to deprive
him of his constitutional rights.
3
Following the appellant's failed scheduled appearance, the post-conviction
court entered the following order:
[U]pon the docket call the petitioner, Frank Pease, has failed to appear
on June 16, 1997 and further that every Judge who has presided over
these cases have had complaints filed against them before the Court
of the Judiciary, and that every attorney who has been appointed to
represent him has been alleged to be incompetent and ineffective, that
this petitioner desires to harass the entire Judicial System of
Tennessee, these cases are dismissed upon Mr. Pease’s failure to
appear.
Pursuant to the order, the court mailed a copy of the order to the appellant. To
explain his absence, the appellant claims that he was “inadvertently incarcerated” in
the state of Connecticut beginning on June 5, 1997, for eighty-three days until he
was released on bond. On October 3, 1997, the appellant filed a “motion to set
aside ruling” which was overruled by the post-conviction court because “the time for
appeal has passed.” Thereafter, the appellant filed his notice of appeal on
November 7, 1997.
Although the appellant raises numerous issues within his brief addressing the
merits of his petition, the only issue properly before this court is whether the post-
conviction court erred by dismissing the appellant’s petition for post-conviction relief.
First, as the State argues, the post-conviction court acted properly because
the motion to set aside the court’s ruling was filed over one hundred days after the
judgment of the court was entered on June 16, 1997. Therefore, the State contends
that the trial court had lost its jurisdiction to set aside the judgment it had earlier
entered. We agree. Unless a timely notice of appeal or one of the specified post-
trial motions are filed, the trial court’s judgment becomes final thirty days following
its entry. State v. Lock, 839 S.W.2d 436, 440 (Tenn. Crim. App. 1992); Tenn. R.
App. P. 4(a) and (c). The trial court loses jurisdiction to amend the judgment after it
has become final. Lock, 839 S.W.2d at 440; State v. Moore, 814 S.W.2d 381(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1991). Thus, because the
motion to set aside the court’s ruling was untimely, the requisite time to file his
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notice of appeal was not tolled.
Moreover, the appellant filed his notice of appeal over one hundred thirty
days after the order dismissing the appellant’s petition was entered. The rules of
appellate procedure require that a notice of appeal be filed within thirty days after
the entry of the judgment from which the defendant is appealing. Tenn. R. App. P.
4(a). However, the State acknowledges that this court may waive the timely filing of
a notice of appeal “in the interest of justice.” State v. Scales, 767 S.W.2d 157(Tenn. 1989); see also Tenn. R. App. P. 3(e) and 4(a). The appellant in this case
has failed to demonstrate to this court that the “interest of justice” demands such
waiver.
If this court did waive the time requirements for this appeal, the result would
remain the same. The record before us, as previously stated, is wholly inadequate.
If the appellate record is inadequate, the reviewing court must presume that the trial
court ruled correctly. See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App.
1993). The appellant’s brief contains no arguments requiring a reversal of the post-
conviction court’s dismissal of his petition. Those issues unsupported by argument
and citation to legal authority are waived. Tenn. Ct. Crim. App. R. 10(b). The
appellant’s brief states that he was “unfortunately incarcerated in the State of
Connecticut pending the procurement of a $50,000 surety bond, and could not have
attended the hearing to which he was not aware.” The record lacks any scintilla of
evidence of the appellant’s incarceration except for the “motion to set aside ruling”
where he asserts he was “inadvertently incarcerated” in which he provides the
address of the Hartford Community Correctional Center. Had the appellant been
truthful regarding his absence from the hearing, the post-conviction court could have
made other arrangements. See Tenn. Code Ann. § 40-30-210; Tenn. Sup. Ct. Rule
28 § 8(C)(1)(a)-(c). Even if the appellant’s incarceration were taken as the truth
upon this appeal, the post-conviction court was without the knowledge of this fact at
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the time of its ruling and was not aware until after its judgment became final.
Therefore, we conclude that the judgment of the post-conviction court is
affirmed, and the petition for post-conviction relief is dismissed with prejudice.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
__________________________________
JERRY L. SMITH, Judge
__________________________________
JAMES CURWOOD WITT, JR., Judge
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