State v. Larry Carr ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL 1997 SESSION
FILED
August 28, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
LARRY D. CARR, ) NO. 02C01-9605-CR-00137
)
Appellant ) SHELBY COUNTY
)
V. ) HON. ARTHUR T. BENNET, JUDGE
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee )
)
FOR THE APPELLANT FOR THE APPELLEE
Harold D. Archibald John Knox Walkup
33 North Front Street, Suite 790 Attorney General and Reporter
Memphis, Tennessee 38103 450 James Robertson Parkway
Nashville, Tennessee 37243-0493
Deborah A. Tullis
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243-0493
John W. Pierotti
District Attorney General
201 Poplar Avenue
Memphis, Tennessee 38103-1947
Jennifer Nichols
Assistant District Attorney General
201 Poplar Avenue
Memphis, Tennessee 38103-1947
OPINION FILED:______
AFFIRMED IN PART -- DELAYED APPEAL GRANTED
William M. Barker, Judge
Opinion
The Appellant, Larry D. Carr, appeals as of right the Shelby County Criminal
Court’s dismissal of his petition for post-conviction relief. He argues that his trial
attorney provided ineffective assistance of counsel. We have reviewed the record on
appeal and find that the Appellant’s trial attorney provided effective assistance of
counsel through the trial and the appeal to this Court, but failed to advise the
Appellant of his right to seek permission to appeal his case to the Tennessee
Supreme Court. Accordingly, we vacate this Court’s opinion entered on February 16,
1994, and re-enter the opinion so that the Appellant may file an application for
permission to appeal to the Tennessee Supreme pursuant to Rule 11 of the
Tennessee Rules of Appellate Procedure. We affirm the trial court in all other
respects.
The Appellant, while on parole for aggravated robbery, was arrested and
charged with another instance of aggravated robbery. After a trial on the merits, a jury
found the Appellant guilty as charged. The trial court later sentenced him to ten years
imprisonment. The Appellant appealed his conviction to this Court and we affirmed.
State v. Larry D. Carr, C.A.A. No. 02C01-9204-CR-00075 (Tenn. Crim. App., Jackson,
Feb. 16, 1994). On July 8, 1994, the Appellant filed this petition for post-conviction
relief. On December 15, 1995, after an evidentiary hearing, the trial court filed a
memorandum denying the Appellant’s petition.
The Appellant argues that his constitutional right to the effective assistance of
counsel was violated. In reviewing an appellant’s Sixth Amendment claim of
ineffective assistance of counsel, this Court must determine whether the advice given
or services rendered by the attorney are within the range of competency demanded of
attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To
prevail on a claim of ineffective counsel, a petitioner “must show that counsel’s
representation fell below an objective standard or reasonableness” and that this
performance prejudiced the defense. There must be a reasonable probability that but
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for counsel’s error the result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 687-88, 692, 694, 104 S. Ct. 2053, 2064, 2067-68, 80
L. Ed. 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).
The Appellant claims that his attorney insufficiently investigated his case by
failing to interview potential witnesses. The evidence in the record clearly shows that
the Appellant’s attorney sufficiently investigated this case. The Appellant’s attorney
reviewed the State’s file and then sent an investigator to take statements from the
State’s key witnesses. She also investigated potential defense witnesses suggested
by the Appellant, but those witnesses either were unavailable or did not cooperate.
Moreover, the Appellant failed to introduce the testimony of any witnesses at the post-
conviction hearing. Without such testimony, we are unable to review the Appellant’s
claim that he was prejudiced. See Wade v. State, 914 S.W.2d 97,102 (Tenn. Crim.
App. 1995); Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).
The Appellant also claims that his lawyer prejudiced his defense by introducing
police lineup photographs of the Appellant to the jury. The Appellant’s lawyer did
introduce three or four police lineup photographs, but she did that to attempt to prove
that the State’s key witness had erroneously identified the Appellant as the robber.
Tactical decisions, such as this one, are not subject to post-conviction challenges.
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Moreover, all information on those
pictures that suggested that the Appellant had committed prior crimes was deleted.
The Appellant has failed to show prejudice
The Appellant next claims that his trial attorney was inefficient because she
failed to file a motion to suppress a police report which allegedly contained conflicting
and erroneous information. The Appellant failed to introduce a copy of the police
report into the record and, therefore, we are unable to review his claim that he was
prejudiced.
Finally, the Appellant argues that his counsel failed to advise him of his right to
seek second tier appellate review to the Tennessee Supreme Court and that he
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should be granted a delayed appeal. The State concedes that this argument has
merit and we agree.
After the Appellant’s attorney completed her representation of the Appellant
and was permitted to withdraw, she sent him a letter advising him that she was
withdrawing and that if he wanted to appeal he had three years to file a petition for
post-conviction relief. She did not advise him that he could file a petition asking for
permission to appeal his case to the Tennessee Supreme Court.
Rule 14 of the Rules of the Supreme Court of the State of Tennessee requires
attorneys withdrawing from further representation of indigent defendants to notify them
in writing:
(1) that counsel does not intend to file an Application for Permission to
Appeal and that leave of Court is being sought to withdraw; (2) that the
defendant may file a pro se Application for Permission to Appeal with the
Clerk of the Supreme Court if filed within sixty (60) days after entry of
final judgment in the Court of Criminal Appeals; (3) the date on which the
Court of Criminal Appeals opinion was released; and (4) the date on
which an Application for Permission to Appeal is due.
Rule 14, Rules of the Supreme Court of the State of Tennessee.
Minimum compliance with this rule is necessary to protect defendants’ due
process rights. State v. Brown, 653 S.W.2d 765, 767 (Tenn. Crim. App. 1983). When
a defendant is denied second tier appellate review by no fault of his own, he is entitled
to a delayed appeal. Pinkston v. State, 668 S.W.2d 676, 677 (Tenn. Crim. App.
1984).
The Appellant’s trial counsel failed to notify the Appellant of his right to seek
second tier review. Therefore, we grant the Appellant the right to seek a delayed
appeal from the Tennessee Supreme Court. Accordingly, we vacate our judgment of
February 16, 1994, and reinstate it as of the date of the release of this opinion.
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__________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
__________________________
JOSEPH M. TIPTON, JUDGE
__________________________
DAVID G. HAYES, JUDGE
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