Darrell Wayne Bumpas v. State of Tennessee ( 2021 )

07/27/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 8, 2021
DARRELL WAYNE BUMPAS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2014-D-2676 Steve R. Dozier, Judge
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No. M2020-00948-CCA-R3-PC
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Petitioner, Darrell Wayne Bumpas, appeals the denial of his post-conviction petition,
arguing that the post-conviction court erred in concluding that he received effective
assistance of counsel. Following our review of the entire record and the briefs of the
parties, we affirm the judgment of the post-conviction court.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JILL BARTEE AYERS, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ROBERT H. MONTGOMERY, JR., J., joined.
Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Darrell Wayne Bumpas.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Jenny Charles,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
On October 31, 2014, the Davidson County Grand Jury indicted Petitioner for one
count each of forgery over $1,000, criminal simulation over $1,000, theft of property over
$1,000, and two counts of identity theft. Following a bench trial, Petitioner was convicted
as charged, and was sentenced as a career offender to concurrent sentences for an effective
sentence of twelve years. This Court affirmed Petitioner’s convictions on appeal. State v.
Darrell Wayne Bumpas, No. M2017-00746-CCA-R3-CD, 2018 WL 817289 (Tenn. Crim.
App. at Nashville, Feb. 12, 2018) perm. app. denied. The facts of this case as summarized
on direct appeal are as follows:
At trial, Dennis Tulpa testified that on July 24, 2014, he worked as
a personal banker and teller at Avenue Bank in Green Hills. Mr.
Tulpa recalled that, around 4:15 p.m., a man entered the bank and
cashed check number 17174 from “Tennessee Valley Home.” Mr.
Tulpa reviewed two photographs taken from inside Avenue Bank,
and he identified himself in the photographs and stated that the
photographs depicted where he worked. He noted that the
photographs had a time and date stamp, which read “7–24–2014 at
4:18 [p.m.]” Mr. Tulpa testified that the photographs were captured
on July 24, 2014, and kept in the regular course of business by
Avenue Bank. He explained that the photographs had been printed
out from a bank computer where they were stored.
Mr. Tulpa identified [Petitioner] as the customer depicted in the
photographs. He stated that [Petitioner] was a “non-client” of
Avenue Bank and did not hold an account at the bank. Mr. Tulpa
explained that tellers were instructed pursuant to bank policy that
when cashing checks from non-clients they should ask to see a
driver’s license and copy the information from the license onto the
back of the check next to the non-client’s signature. Mr. Tulpa
recalled that, when [Petitioner] approached Mr. Tulpa to cash check
number 17174, the check bore [Petitioner]’s signature, but he did not
see [Petitioner] physically sign it. Mr. Tulpa viewed a copy of the
check that was presented by [Petitioner]. Mr. Tulpa testified that he
wrote the driver’s license number, date of birth, expiration date and
the date the driver’s license was issued onto the back of the check.
Mr. Tulpa stated that he got the information from the driver’s license
[Petitioner] presented to him. Mr. Tulpa noted that the photograph
on the driver’s license appeared to match [Petitioner]. After taking
this information, Mr. Tulpa cashed the check, giving [Petitioner]
$1,810.30.
Mr. Tulpa explained that the owner of the account on which the
check was drawn, Tennessee Valley Homes, Inc. (“TVH”), later
contacted Avenue Bank and reported that the check did not belong
to them. The bank researched the claim, compared the check cashed
by [Petitioner] to images of checks belonging to TVH and
determined the check cashed by [Petitioner] was counterfeit. Mr.
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Tulpa stated that it was the policy of the bank that it would not pass
along the loss to the client/account holder when a counterfeit check
was passed. Instead, the bank incurred the loss of $1,810.30. Mr.
Tulpa testified that he specifically remembered [Petitioner] because
Mr. Tulpa did not “cash bad checks every day, so the incident [stood]
out in [his] mind.”
Detective Kevin Allen of the Metropolitan Nashville Police
Department (MNPD) testified that, on July 24, 2016, he responded
to Avenue Bank to investigate a possible fraudulent check passed at
the bank. The bank provided Detective Allen with still photographs
taken from the bank’s security cameras that day, as well as a copy of
the signed check. Detective Allen compared the date of birth,
driver’s license number, and driver’s license issuance and expiration
dates that were written on the back of the check with the information
on [Petitioner]’s driver’s license and found that the information on
the check matched [Petitioner]’s driver’s license. Detective Allen
also noted that the photograph of [Petitioner] on his driver’s license
resembled the man displayed in the still photographs provided by the
bank. Detective Allen testified that the routing number and account
number of the check passed by [Petitioner] matched the routing and
account numbers for TVH’s account. After speaking with bank
personnel, Detective Allen spoke to a representative with TVH,
Loraine Cash, about the check. Following his conversation with Ms.
Cash, Detective Allen presented the case to the grand jury.
Loraine Cash testified that she was the office manager at TVH and
that she kept the records of the company’s financial transactions as
part of her job. Ms. Cash recalled that on July 24, 2014, she “was
doing the bank reconciliation and noticed that [she] had a dollar
amount on the bank rec[onciliation] that was not in [her] computer.”
Ms. Cash spoke to a representative from Avenue Bank about the
check, and the bank provided her with a copy of the check passed by
[Petitioner]. Ms. Cash testified that the company name listed on the
check, “Tennessee Valley Home,” was wrong; she explained that the
correct name was “Tennessee Valley Homes.” She further noted that
the date line on the check was in the wrong place. Ms. Cash said
that, upon further investigation, she discovered that she had in her
possession TVH's check number 17174, and it had not been issued.
She stated that the check was “still in the box.” Additionally, Ms.
Cash searched the company’s list of vendors to see if [Petitioner]
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had worked for TVH previously. [Petitioner]’s name, however, was
not on the vendor list.
Ms. Cash testified that only four people had “signature line
authority” to write checks for TVH—Darrel Reifschneider, James
Franks, Shelly Molar, and herself. Ms. Cash explained that Mr.
Reifschneider was the secretary of TVH and that Mr. Franks was the
president. She said that she was familiar with both of their
signatures, as well as Ms. Molar’s, and stated that their signatures
did not look like the signatures on the check passed by [Petitioner].
She explained that it took two joint signatures for a check to be
properly issued by TVH. Based on all of this information, Ms. Cash
determined that the check passed by [Petitioner] was not issued by
TVH and was, therefore, counterfeit. Ms. Cash stated that, due to
Avenue Bank's policy, TVH did not incur any financial loss. The
bank put the $1,810.30 back into TVH’s account.
Darrel Reifschneider testified that he was part-owner of TVH, along
with James Franks. Mr. Reifschneider explained that he was not
involved in the day-to-day operations of the company and that Mr.
Franks was the “operating partner.” Mr. Reifschneider stated that he
did not give permission to [Petitioner] or anyone else “to create
another check other than [TVH's] company check.” Mr.
Reifschneider testified that neither of the signatures listed on the
check passed by [Petitioner] were his. He stated that, to his
knowledge, TVH had never employed [Petitioner].
Jane Eakes, a certified document examiner, testified as an expert in
handwriting analysis for the State. She explained that she had been
provided with twenty known samples of [Petitioner]’s signature,
which she compared to the signature on the check passed by
[Petitioner] at Avenue Bank. Ms. Eakes testified that, based on her
training and experience, “all of these signatures were written by the
same person” and that [Petitioner] signed the check passed at
Avenue Bank on July 24, 2014.
[Petitioner] testified that on July 24, 2014, he went to Avenue Bank
in Green Hills and cashed a check that he had received for “some
work that [he] had done two weeks prior.” When shown the copy of
the check passed at Avenue Bank that day, [Petitioner] said that it
“look[ed] like” the check he cashed. He agreed that his signature
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was on the back of the check, but he noted that his name was
misspelled on the front of the check where he was listed as the payee
and that his home address was listed incorrectly. [Petitioner] stated
that he did not notice that TVH was misspelled on the front of the
check and stated that the check “appear[ed] to be real.”
[Petitioner] explained that he worked as a subcontractor, and two
weeks prior, he responded to an ad on Craigslist about cleaning up
an area prior to a building project. [Petitioner] explained that the
work included demolishing a mobile home, cutting down some trees,
removing brush, and “tak[ing] all of the trash.” [Petitioner] stated
that he could not recall the name of the man from Craigslist who
hired him to do the work but stated that the man worked for TVH.
[Petitioner] testified that he met with the man who hired him “out
[in] East Nashville” and that the man spoke over the telephone to a
lady named “Ms. Merriweather,” who was “over the accounts of
[TVH.]” [Petitioner] stated that he gave Ms. Merriweather a copy
of his identification and a copy of his contractor’s license. He denied
altering the check before it was cashed, and he denied falsifying the
front of the check to make it appear that TVH had written him a
check. [Petitioner] stated that the man who had hired him gave him
the check. He explained that he received only $400 for his work out
of the $1,800 and that the man who hired [Petitioner] took the rest
of the money to “pay the other workers.”
At the conclusion of testimony, the trial court found [Petitioner]
guilty as charged. On each count, the trial court sentenced
[Petitioner] as a Career Offender to twelve years with sixty percent
release eligibility. The trial court ordered the sentences to run
concurrently and for [Petitioner] to serve his sentence in
confinement. The judgments of conviction were entered on October
27, 2016.
Id. at *1-4.
Post-conviction-Hearing
At Petitioner’s post-conviction hearing on November 12, 2019, Petitioner testified
that his original meeting with his trial counsel lasted three minutes at Starbucks and that he
never spoke to his attorney prior to trial. Petitioner complained that his attorney did not
investigate his case, nor did his attorney provide him with a copy of the State’s discovery.
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Petitioner testified that the original check in question, rather than a copy of the check,
should have been introduced at trial. Petitioner also testified that trial counsel failed to
appear in court for prior hearings and when Petitioner arrived in court for what he thought
was a hearing, he learned that his case was going to be heard as a bench trial. According
to Petitioner, he did not waive his right to a jury trial and told trial counsel that he wanted
a jury. He also stated that he objected on the record to the bench trial prior to the
commencement of same. Petitioner testified that trial counsel told him he was being forced
into having a bench trial. Petitioner explained that he was unaware he was going to court
for a trial and objected because his witnesses were not present. He had provided his
attorney a list of ten witnesses who would have testified as to his character and the fact that
Petitioner often worked with checks in his business.
Petitioner alleged that following his conviction and appeal, he was abandoned by
his attorney. Petitioner testified that trial counsel had failed to file an application for a Rule
11 appeal and that Petitioner had not heard from trial counsel since his direct appeal. On
cross-examination, Petitioner denied having agreed to a bench trial during his
representation with his prior trial counsel. Petitioner further denied that he spoke on the
phone with trial counsel on multiple occasions.
Trial counsel testified that when he was retained by Petitioner, Petitioner told him
he had already requested a bench trial through his prior counsel. Trial counsel also testified
that Petitioner did not express any objection to a bench trial on the morning of the trial, and
trial counsel did not tell Petitioner that he was being forced to have a bench trial. Trial
counsel explained that he received and reviewed a copy of the State’s discovery and that
the initial meeting with Petitioner lasted more than three minutes. Additionally, trial
counsel had numerous phone calls with Petitioner in preparation for trial. Trial counsel
testified that the witnesses provided by Petitioner were all character witnesses and would
have been improper to call as fact witnesses at trial. Finally, trial counsel did not believe
that filing a request for an appeal was a requirement under the law.
On January 14, 2020, the post-conviction court entered an order granting Petitioner
a delayed appeal to allow him to file a delayed Rule 11 application for appeal to the
supreme court and stayed all further proceedings on the post-conviction matter pending the
outcome of that application. Following the denial of that application for permission to
appeal, the post-conviction court entered an order on June 16, 2020, denying the petition
for post-conviction relief. Petitioner filed a notice of appeal on July 14, 2020.
The post-conviction court’s order denying relief addressed numerous issues raised
in Petitioner’s post-conviction petition. However, in his brief, Petitioner raises only the
two issues addressed herein.
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Analysis
On appeal, Petitioner argues that the post-conviction court erred in denying his
petition for post-conviction relief because his trial counsel was ineffective when he failed
to preserve Petitioner’s right to a trial by jury and failed to adequately communicate with
Petitioner to prepare for trial. The State responds that Petitioner failed to show that his trial
counsel was ineffective, and thus the post-conviction court properly denied relief. We
agree with the State.
The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. When a claim of ineffective assistance of counsel is made, the burden is on the
petitioner to show (1) that counsel’s performance was deficient and (2) that the deficiency
was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v.
Fretwell, 506 U.S. 364, 368-72 (1993). Failure to satisfy either prong results in the denial
of relief. Strickland, 466 U.S. at 697. Accordingly, if we determine that either factor is
not satisfied, there is no need to consider the other factor. Finch v. State, 226 S.W.3d 307,
316 (Tenn. 2007) (citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). The
deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under
prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing
Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The
factual findings of the post-conviction court are binding on an appellate court unless the
evidence in the record preponderates against those findings. Dellinger v. State, 279 S.W.3d
282, 294 (Tenn. 2009).
Petitioner claims his trial counsel was deficient in failing to preserve his right to a
trial by a jury. “The right to a jury trial in both civil and criminal cases is a foundational
right protected by both the federal and state constitutions.” State v. Smith, 418 S.W. 3d 38,
44 (Tenn. 2013). While the right to a jury trial in a criminal case is inviolate, the right
may, nonetheless, be waived. State v. Ellis, 953 S.W. 2d 216, 220 (Tenn. Crim. App.
1997). At common law, a defendant had no right to waive a jury trial. However, our
supreme court has held that nothing in either the state or federal constitutions prohibits the
legislature from conferring such a right under appropriate safeguards. See State v. Durso,
645 S.W. 2d 753, 758 (Tenn. 1983) (citing Seale v. Luttrell, 428 S.W.2d 312 (Tenn. 1968)).
Accordingly, Tennessee Rule of Criminal Procedure 23 provides that a defendant may
“waive a jury trial at any time before the jury is sworn” as long as the waiver is (1) in
writing, (2) consented to by the district attorney general, and (3) approved by the court.
Tenn. R. Crim. P. 23(b).
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In the absence of a Rule 23 written waiver, waiver may also be found when the
record “clearly show[s] a voluntary relinquishment of the rights to be tried by a common
law jury.” State v. Bobo, 814, S.W.2d 353, 359 (Tenn. 1991). To show voluntary
relinquishment, a defendant must “be advised by the court of his or her right to a jury trial”
and must “personally waive the right in open court for the record.” Ellis, 953 S.W.2d at
221-22 (emphasis in original). Waiver cannot be found in a “silent record” and counsel
may not waive the right for a client. Id at 221. However, failure to sign a written waiver
does not “preclude the court from examining the facts to determine if a [Petitioner] had, in
fact, waived his right to a jury trial.” State v. Dunn, 453 S.W.2d 777, 779 (1970).
Petitioner argues that trial counsel’s representation was deficient because trial
counsel failed to preserve Petitioner’s right to a jury trial. Petitioner contends that he never
signed a Rule 23 written waiver of his right to a trial by jury. He contends that he told trial
counsel he objected to a bench trial and that he objected to a bench trial on the record prior
to trial. Petitioner further contends that on the day of his bench trial he expected to attend
a hearing, not a trial, and that the trial was therefore a surprise to him. Petitioner’s
testimony at the post-conviction hearing is in conflict with trial counsel’s testimony. Trial
counsel testified that Petitioner did not object to a bench trial.
While the record does not contain a written waiver signed by Petitioner, the post-
conviction court in examining the record credited trial counsel’s testimony over
Petitioner’s testimony finding that:
[W]hile neither party was able to locate the Petitioner’s written waiver
entered pursuant to Tennessee Rule of Criminal Procedure 23, the Court’s
minutes from the date of the trial reflect that a Rule 23 waiver was entered
before the trial, and the Court of Criminal Appeals notes in their opinion that
a Rule 23 written waiver was entered. See State v. Bumpas, No. M2017-
007460CCA0R30CD02018 WL 817289 at *1 (Tenn. Crim. App. Feb. 12,
2018). Accordingly, the Court does not find the Petitioner to be credible on
this issue. Rather the Court accredits [trial counsel’s] testimony that the
decision to have a bench trial was made by the Petitioner and the Court finds
that the Petitioner waived his right to a jury trial knowingly and voluntarily.
The post-conviction court found no deficiency by trial counsel. The record supports
the post-convictions court’s finding that Petitioner knowingly and voluntarily waived his
right to a jury trial. Petitioner is not entitled to relief on this issue.
Petitioner further argues that his trial counsel was ineffective for failure to
adequately communicate with Petitioner to prepare for trial and for missing court dates
prior to Petitioner’s bench trial. At the post-conviction hearing, Petitioner testified that his
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initial meeting with his trial counsel lasted three minutes, that trial counsel refused to return
phone calls, and that trial counsel never reviewed the State’s case with Petitioner.
Petitioner testified that because Petitioner was unaware that he was to be tried on the day
of his bench trial, he was unable to call witnesses in his defense. Trial counsel testified
that the initial meeting lasted more than three minutes and that he had numerous phone
conversations with Petitioner in preparation for trial. Trial counsel also testified that he
had reviewed the State’s discovery, as well as Petitioner’s proposed list of witnesses. All
of the witnesses were character witnesses who could not testify regarding any of the facts
of the case.
The post-conviction court did not find Petitioner to be a credible witness, and
specifically accredited the testimony of trial counsel regarding his communications with
Petitioner and preparation for trial. Further, the post-conviction court found that trial
counsel’s communications with Petitioner and his trial preparation were “well within the
bounds of competent representation.” Appellate courts must generally defer to a post-
conviction court’s findings concerning witness credibility, the weight and value of witness
testimony, and the resolution of factual issues presented by the evidence. Kendrick v State,
454 S.W.3d 450, 457 (Tenn. 2015). Petitioner has failed to show that the post-conviction
court erred in determining that he was not entitled to relief on his ineffective assistance of
counsel claims.
Conclusion
For the foregoing reasons, the judgment of the post-conviction court is affirmed.
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JILL BARTEE AYERS, JUDGE
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