Bruce S. Rishton v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 28, 2011
BRUCE S. RISHTON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Sullivan County
No. C53,320 Robert H. Montgomery, Jr., Judge
No. E2010-02050-CCA-R3-PC - Filed May 21, 2012
The petitioner, Bruce S. Rishton, appeals the denial of his petition for post-conviction relief
from his attempted rape and incest convictions, arguing that (1) he was constructively denied
counsel at a critical stage of the proceedings against him; (2) he received the ineffective
assistance of counsel, which caused him to enter unknowing and involuntary pleas; (3) the
State engaged in prosecutorial misconduct; (4) the post-conviction court denied him a full
and fair hearing; and (5) the trial court denied him a speedy trial. Following our review, we
affirm the denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN, J., delivered the opinion of the Court, in which D. K ELLY T HOMAS, J R. and
C AMILLE R. M CM ULLEN, JJ., joined.
Bruce S. Rishton, Pikeville, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
Authorities arrested the petitioner, Bruce S. Rishton, on August 29, 2005, and charged
him in case number S51,181 with the rape of his sister-in-law, T.C., and, in case number
S51,180, with the rape of his adopted daughter, H.R., who was a minor at the time. The
general sessions court appointed the district public defender to represent the petitioner after
his arrest. The petitioner waived a preliminary hearing on September 6, 2005, and the
charges were bound over to the criminal court. In October 2005, the criminal court judge
appointed the public defender to represent the petitioner in criminal court. The public
defender’s office filed a motion, on November 17, 2005, to reduce bond on behalf of the
petitioner. The State filed a counter motion to revoke the petitioner’s bond. The trial court
heard the motions on December 8, 2005, and increased the petitioner’s bond.
On April 4, 2006, the court arraigned the petitioner in case number S51, 181 after the
grand jury returned a true bill of indictment on March 15, 2006. The trial court set the
petitioner’s trial date for June 22, 2006; however, the court subsequently removed it from the
trial docket. On July 21, 2006, the court arraigned the petitioner in case number S51,180
after the grand jury returned a presentment on July 19, 2006. On July 25, 2006, the trial court
removed the district public defender as counsel for the petitioner after the petitioner claimed
that the public defender had failed to communicate with him. The trial court appointed
private counsel to represent the petitioner.
On November 6, 2006, the petitioner entered “best interest” guilty pleas in case
number S51,181 to one count of attempted rape, a Class C felony, and in case number
S51,180 to five counts of incest and five counts of attempted rape, Class C felonies. The
prosecutor recited the following factual basis for the pleas at the guilty plea hearing:
If we had proceeded to trial in Case No. S51,181 the State would have
the following evidence. On August 29, 2005 the victim, [T.C.], who is an
adult individual and she is also the [petitioner’s] sister-in-law, was staying
with the [petitioner] and her sister, . . ., in Sullivan County, Tennessee. She
had young children there with her . . . at the [petitioner’s] residence. She
would state that she woke up from a dead sleep with the [petitioner] lying
either on her or beside her with her pants down digitally penetrating her
vagina. [T.C.] would give a history of prior sexual assaults with this
[petitioner], should it become relevant, reaching back into her minority when
she lived with [her sister] and [the petitioner] and their children. She would
state that she did not give her consent and was awakened to an offense already
committed. She immediately told her sister. She immediately called the
police. This was immediately turned over.
As to [Case No.] S51,180, the parties would stipulate that the offenses
occurred on the dates as alleged in the indictments or presentments. The
victim is [H.R.]. Her date of birth was August 28th, 1989. After [T.C.] came
forward with her abuse within about a 24 hour period [H.R.] also told her
mother that this had been also happening to her for some period of time.
[H.R.] would go on to tell authorities that her abuse began in another
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jurisdiction back in the year 2000 and continued until the August 29th date
when [T.C.] came forward.
[H.R.] . . . gave details, although many more offenses occurred than the
State has charged. The State took a diary and worked around significant dates
in [H.R.’s] life to come up with the dates that we ultimately used. All of those
events occurred either in the home in Sullivan County or in, by the lake in
Sullivan County and the earlier abuse, as I stated, occurred not only in
Washington County, Tennessee but in another [s]tate that has been referred to,
other jurisdictions, and that we do not know what they will do in those cases.
[H.R.] was also able to tell us that during the events which would occur
at her home on every occasion the [petitioner], who was her father, would have
her watch pornographic movies. She described in detail to us some of those
specific movies. The State, various pornographic . . . movies, in fact a whole
box full of them, were recovered from the home and turned over to officers
and on those tapes are the events or the scenes that [H.R.] would describe.
[H.R.] would state that she did not want to have sexual penetration and
this would either be digital, oral or attempted penile penetration either on her
or on him in each case; that . . . it began when she was a young child and
continuing until the present day, . . . that she would not be able to go out, she
would not be able to leave the house, she could not see her friends, she could
not have a boyfriend or he would be mean to her family if she refused his
sexual advances, that her life would have been, was made very difficult.
She did go to have a physical – the child is, although fully capable of
testifying, is highly emotionally traumatized by the events and when we took
her for the medical [examination] . . . the doctor, without putting her to sleep,
could not conduct a full pelvic exam but what she was able to see was very
suspicious and did show some tiny tearing of the hymenal ring. But she just
could not go further than that without putting the child under to complete the
exam.
The trial court sentenced the petitioner, as a Range II multiple offender, to ten years
for each count. The court ordered that he serve each count in case number S151,180
concurrently with each other and concurrent with his sentence in case number S151, 181 for
a total effective ten-year sentence.
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On March 5, 2007, the petitioner filed a pro se petition for post-conviction relief
alleging that (1) his conviction was based on the unconstitutional failure of the prosecution
to disclose favorable evidence; (2) he received ineffective assistance of counsel; and (3)
there was newly discovered evidence. The post-conviction court appointed post-conviction
counsel who filed an amended petition on January 22, 2008. On February 25, 2008, post-
conviction counsel filed a supplement to the amended post-conviction petition adding claims
that the trial court violated the petitioner’s right to a speedy trial and his right to due process.
At the petitioner’s post-conviction evidentiary hearing, Detective Bobby Russell, of
the Sullivan County Sheriff’s Department, testified that the petitioner’s arrest stemmed from
allegations of sexual abuse reported to the Kingsport Justice Center by the victims. Detective
Russell met with the victims, typed an affidavit, swore to the affidavit, and went to the
petitioner’s home to tell him about the charges. The petitioner invoked his right to counsel,
which prevented Detective Russell from questioning the petitioner.
Detective Russell identified his notes of his August 29, 2005 interview with H.R.
Detective Russell said that H.R. went to counseling and gave the sheriff’s department a
handwritten statement. Detective Russell said that his only interview with the petitioner’s
sister-in-law was the initial one. He did not audio or video record the interviews, nor did he
take pictures of the victims. Detective Russell testified that Detective Karen Watkins took
H.R. to a lake property where some abuse had occurred. The detectives did not take any
tangible items for testing or request any DNA or fingerprint tests.
According to Detective Russell, a medical examination was performed on H.R. on
September 6, 2005. He said that the examination was performed eight days after the
petitioner’s arrest because H.R. said that the petitioner had last raped her in July, and “[t]here
was no rush at that point to have an exam done.” Detective Russell received a copy of H.R.’s
examination results on November 1, 2006. He said that he did not immediately look into the
results of H.R.’s medical examination because his office had her statement and “often times
a medical exam, even with full intercourse will not show anything, and it’s not unusual for
a child that’s been victimized for the results to come back with not any sign.” Detective
Russell testified that no one had instructed him to forgo obtaining H.R.’s examination results
and denied that the reason he did not immediately obtain the results was because of its
“exculpatory nature.”
Detective Russell could not explain why it had taken so long for the case to reach the
grand jury for indictment. Detective Russell testified that he gave the information obtained
during his investigation to the district attorney’s office, and the district attorney’s office
decided when to submit the case to the grand jury. He assumed that the district attorney’s
office decided who testified at the grand jury hearing. Detective Russell was the only
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witness to testify during the grand jury proceeding. He was unaware of why the victims were
unable or unwilling to testify but said that it was common practice for the detective
investigating the case to testify rather than the actual eyewitnesses.
Detective Russell stated that the dates of the incidents listed on the indictment were
taken from a calendar that H.R. had kept. H.R. had marked the calendar and related the
occurrences to certain dates and events. He could not remember how he had testified during
the grand jury hearing and did not know how the grand jury came up with the August dates
listed on the indictment.
On cross-examination, Detective Russell testified that in his experience, district
attorneys often asked him for additional work after he sent them his prosecution file, and his
investigation did not stop when he turned over a prosecution report. On November 15, 2005,
the prosecutor in this case requested that Detective Russell conduct additional investigation,
including obtaining H.R.’s medical report.
Detective Russell believed that the Department of Children’s Services requested that
H.R. undergo a physical examination. He stated that the usual procedure was for the
Children’s Advocacy Center (CAC) to perform an evaluation, make a report, and furnish that
report to the district attorney’s office and detectives. Detective Russell went to the CAC to
see whether there was a report of H.R.’s physical examination, and there was not one.
Detective Russell said that the district attorney’s office subsequently discovered that
a private physician had performed a physical examination of H.R. in September 2005. When
Detective Russell obtained the report, he gave it to the district attorney’s office. Detective
Russell said that his not obtaining the report earlier was an oversight and that he did not
intentionally delay obtaining the report to prevent the defense from getting it.
Detective Russell said he had received training regarding the results and findings by
physicians in sexual abuse cases. He stated that, in his experience, examiners find less as the
child gets older and as the period of time between the abuse and the examination increases.
He said that rape kits were not performed when an adult had been digitally penetrated.
Detective Russell testified that nothing suggested that the victims were uncooperative
or would have been unavailable if he had asked them to testify. The petitioner had written
letters to H.R. and her mother before the indictment, and Detective Russell said that they
feared that the petitioner would be released and were hesitant to testify. Detective Russell
met with the victims several times besides his interview session with them. He said that it
was not unusual for new counts to be added to or for the counts to be changed after the
original complaint was filed. Detective Russell stated that, in his experience, child sex abuse
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cases take took longer to investigate because of the nature of the crimes and dealing with the
victims.
Detective Russell said that he would not have falsely testified in front of the grand
jury and did not in this case. He stated that if the grand jury returned a true bill that included
allegations of abuse in August, it would have been because he testified that there was
information and evidence to substantiate the charge. He said that the customary practice was
for the counts to be read to him and then he would testify to the grand jury as to his findings
on each count.
Detective Russell testified that is was not unusual to discover additional information
about a case when talking to the victim or a counselor at the CAC. He further testified that
child victims usually did not explain everything they knew. He stated that, when an
investigator had to find specific locations and times of events, it prolonged the investigation.
There was an issue in the investigation of this case about which offenses occurred in Sullivan
County versus which happened in other jurisdictions, which required further investigation.
Detective Russell stated that sometimes before children testify they undergo
counseling at the CAC to determine whether they omitted any additional information. The
State directed Detective Russell to investigate whether there was any exculpatory information
and whether the victims had accused any other people of rape. He said that the State
instructed him to turn over any exculpatory information that he found, and he denied that the
State directed him to hide evidence or purposely delay the prosecution of the petitioner.
Detective Russell said that H.R. alleged that she had watched pornographic videos
with the petitioner. During the investigation, authorities found pornographic materials in the
petitioner’s home. The detectives investigating the case reviewed the videos to corroborate
what H.R. had said about them. The detectives gave the videos to the district attorney’s
office for the State to review.
At the time of the petitioner’s case, Detective Russell was the lead sex abuse
investigator in Sullivan County. He handled several cases with assistance but said that he
had the bulk of the case load. He denied purposely trying to delay the prosecution of the
petitioner.
On redirect examination, Detective Russell testified that he did not ask the victims
whether they had a physical examination. H.R. was sixteen years old when she reported the
abuse. Detective Russell said that in his experience sixteen year olds could have a problem
recalling exact dates. Detective Russell agreed that it would not have taken more than a day
to go to the lake property where some alleged abuse had occurred. He stated that he watched
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the pornographic videos taken from the petitioner’s home but could not remember how long
it had taken him to watch them. Detective Russell agreed, however, that it would have taken
him less than a week to watch them.
Trial counsel testified that the court appointed him to represent the petitioner on July
26, 2006. He filed his first motion for discovery in this case on August 15, 2006, and filed
additional motions later. The first time he met with the petitioner was August 17, 2006.
Trial counsel reviewed the public defender’s file for the petitioner’s case and spoke with the
public defender who had previously handled the petitioner’s case. Trial counsel also
reviewed the State’s discovery. Trial counsel stated that the State had an open file policy and
its discovery file contained photographs, affidavits, and copies of a videotape. He did not
recall seeing H.R.’s diary or a copy of it in the discovery file.
Trial counsel said that the discovery packet did not include a medical report for either
of the victims. The motion for discovery that trial counsel filed requested that the State turn
over any reports from physical or mental evaluation. Trial counsel stated that, in its response,
the State replied that it did know any such discovery materials to exist. He further stated that
not having a medical examination was odd considering the length of time between the arrest
and the indictment. He did not recall asking why a doctor had not performed a medial
examination earlier.
Trial counsel wanted to hire an investigator to investigate the statement of the victims
and the State’s witnesses. Trial counsel prepared a motion for an investigator and was
prepared to file it. However, after speaking with the petitioner and the petitioner’s family,
he did not file the motion because the petitioner’s family was going to hire a specific private
investigator. He said that he and the petitioner discussed the petitioner’s version of events
and the victims’ statements.
Trial counsel testified that he asked the State for a plea offer between October 25,
2006, and November 3, 2006, after he had received H.R.’s medical report. Trial counsel
recalled speaking with the petitioner about the medical report and the doctor’s statement
being inconclusive on November 3. The petitioner pled guilty on November 6, but on
November 15, counsel received a letter from the petitioner requesting to withdraw his plea.
Trial counsel advised the petitioner that his right to withdraw his plea depended on “whether
or not [he had] made a knowing and voluntary plea.” Trial counsel stated that he was
familiar with Tennessee Rule of Criminal Procedure Rule 32(f), which states that a trial court
may grant a defendant’s motion to withdraw a guilty plea for any fair and just reason. Trial
counsel stated that he discussed with the petitioner whether he should withdraw his plea, and
the petitioner decided to go forward with his guilty plea.
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Trial counsel said that he discussed the charges and their elements with the petitioner.
He also discussed the definitions contained in the charges with the petitioner. He said that
there was an issue with the count that alleged the petitioner had raped his sister-in-law
because of the definition of coercion. Trial counsel could not recall the specific definition
of coercion that he gave the petitioner as it applied to H.R.’s case. Trial counsel did not
remember speaking with the petitioner about filing a motion for a speedy trial.
On cross-examination, trial counsel testified that when he began representing the
petitioner, the petitioner faced two trials if he did not plead guilty. He said that he was
prepared to go to trial and represent the petitioner had the petitioner chosen to go to trial. He
told the petitioner that he faced eight to twelve years at 100 percent if the jury convicted him.
Trial counsel’s goal was to get the petitioner’s sentences to run concurrently with each other.
However, he explained to the petitioner that it was possible that the petitioner might have to
serve them consecutively at 100 percent. He further advised the petitioner that the court
could use his prior conviction in determining whether to order him to serve his sentences
concurrently or consecutively.
According to trial counsel, while they were discussing the cases, the petitioner
admitted penetrating his sister-in-law without her consent. He said that he advised the
petitioner that if the case went to trial that he could not allow him to deny that he penetrated
his sister-in-law when he testified. The petitioner told trial counsel that his wife did not
know that he was having an affair with her sister. The petitioner’s sister-in-law had
previously consented to sexual contact with the petitioner while under the influence of drugs.
Trial counsel said that the petitioner never admitted having raped H.R.
The State gave trial counsel notice of prior convictions, and trial counsel was aware
that the petitioner had pleaded guilty to a charge and been incarcerated in the past. He told
the petitioner that if he testified during trial, the prosecution could impeach him with
evidence of the prior conviction.
Trial counsel testified that, during his investigation of the case, the State allowed him
to see statements that were not a part of discovery. Trial counsel was aware that H.R. stated
that she had watched pornographic videos and described certain scenes in them. He agreed
that the State could use the videotapes to corroborate what H.R. described. Trial counsel
recalled that one of the videotape’s labeling referenced incest. Trial counsel told the
petitioner that he had viewed part of the tape that corroborated H.R.’s statement and that he
should consider the introduction of the videotape as evidence when deciding whether to
plead guilty.
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Before trial counsel began representing the petitioner, the petitioner requested his
public defender to file a motion to reduce bond. Trial counsel reviewed the file and was
aware that, after hearing the motion to reduce bond, the trial court increased the petitioner’s
bond. During the bond hearing, the State introduced letters that the petitioner had written to
H.R. and her mother. Trial counsel reviewed the letters and discussed them with the
petitioner. He advised the petitioner that the letters created “a very strong inference that
there was some type of physical relationship going on between him and [H.R.]” He told the
petitioner that he thought the letters would negatively affect his defense. He said that after
some discussion, the petitioner agreed with him and accepted the plea offer. Trial counsel
was aware that during the bond hearing the petitioner admitted that he had written a letter
purporting to be his brother. Trial counsel told the petitioner that if the letter was brought
out during trial, it might affect his credibility with the jury.
Trial counsel said he reviewed the entire plea form with the petitioner line by line.
The petitioner never indicated that he did not understand anything that the plea form
contained. Trial counsel testified that the petitioner also never indicated that he did not
understand his charges or how the criminal justice system worked. Trial counsel said that
the petitioner was very intelligent and articulate. The State offered the petitioner to plead
guilty in exchange for an effective ten-year sentence at thirty-five percent, and trial counsel
explained this offer to the petitioner. Trial counsel said that he discussed the benefits of
taking a plea agreement with the petitioner. He said that the petitioner told him that “he
didn’t want to take that plea because he would not risk a consecutive sentencing and a
conviction on the rape case of [his sister-in-law].”
Trial counsel was present with the petitioner when he entered the plea and said that
the petitioner was not mentally impaired or under the influence of drugs or alcohol when he
entered his plea. He stated that the trial judge explained the elements of the offenses and the
effective sentence to the petitioner. The petitioner never told the court that he did not want
to enter the plea agreement. The State gave a stipulation of facts and the petitioner accepted
that the State would have the proof to which the State stipulated.
Trial counsel reviewed the results of H.R.’s medical examination and said that he did
not find that the report was exculpatory for the petitioner’s case. He recalled that the
stipulation of facts stated that H.R. did not undergo a complete examination. Trial counsel
had repeated conversations with the petitioner about the report and told him that it would not
assist in getting him an acquittal.
Trial counsel stated that in the petitioner’s expressing his desire to withdraw his guilty
plea, the petitioner talked about being anxious and regretful about his plea, but he never
stated that his guilty plea was unknowing. In his letter, the petitioner stated that he
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understood the consequences of his plea. Further, the petitioner attached a chart to his letter
listing his release eligibility for the crimes. Trial counsel testified that the petitioner’s focus
was on his case involving H.R., and the petitioner never asked to set aside his plea in the case
involving his sister-in-law. Trial counsel explained to him that the guilty pleas were “a
package deal,” and he could not set aside one without setting aside the other. Trial counsel
did not think that the petitioner had a legal basis for setting aside his guilty pleas; however,
he stated that he would have filed a motion to set the guilty pleas aside had the petitioner
asked him to do so. He said that the petitioner stated that he no longer wished to set aside
his pleas when he appeared in court for his sentencing hearing on November 17, 2006.
Instead, the petitioner told trial counsel that he wanted to waive the hearing and “do his time”
so that he could begin earning sentencing credits.
Trial counsel opined that the jury would likely have convicted the petitioner in the
case involving the petitioner’s sister-in-law, had it gone to trial. Trial counsel was prepared
to go to trial and hire an investigator if the petitioner did not plead guilty. Trial counsel did
his own investigative work. He did not interview the victims; however, he had read their
statements. Trial counsel also read letters that H.R. and the petitioner’s other daughter wrote
to the petitioner. Trial counsel stated that he discussed with the petitioner how these letters,
if admitted during trial, would affect the petitioner’s case.
On redirect examination, trial counsel testified that the petitioner told him that he
knew his sister-in-law was unconscious when he digitally penetrated her. The petitioner told
trial counsel that his sister-in-law had consented in the past and he did not think that she
would have had a problem with him doing it again. Trial counsel stated that he did not find
any evidence of the petitioner and his sister-in-law having a consensual relationship in the
past and that the petitioner’s sister-in-law would not agree to having such a relationship with
the petitioner.
Trial counsel stated that he did not rely on the State’s evidence alone when deciding
whether to try a case. He stated that he wanted to hire an investigator for the petitioner’s case
to interview the victims and other witnesses to uncover any contradictions in their statements.
He did not recall telling the petitioner that a speedy trial would not be applicable in his case
because the petitioner had dismissed his prior counsel. However, he recalled telling the
petitioner that his trials were set within six months and that a motion for a speedy trial would
not get him a faster trial. He further stated that he did not think that there had been any
prejudice to justify granting a motion for speedy trial.
Trial counsel said that the petitioner’s letter asking to withdraw his guilty plea did not
specifically exclude the case involving the petitioner’s sister-in-law; however, trial counsel
inferred that he was only concerned about the case involving H.R. because he primarily
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referred to that case and the medical report in the letter. Trial counsel agreed that H.R.’s
medical report was a big issue to the petitioner and addressing it would be irrelevant in the
case involving his sister-in-law.
The petitioner testified that he had been in jail for eight months before he received a
letter from the public defender’s office telling him whom they had assigned to his case. He
stated that during the eight months before the public defender’s office assigned specific
counsel to him, he had written letters to and called the public defender’s office. The
petitioner also wrote letters to the trial court complaining that he did not have a specific
public defender assigned to his case. In his letters, the petitioner also questioned why it was
taking the grand jury so long to indict him. He said that he did not receive replies to the
letters that he sent. The petitioner testified there were nineteen grand jury meetings between
his preliminary hearing in case number S51,181 and his indictment. There were twenty-eight
grand jury meetings between his preliminary hearing in case number 51,180 and the
presentment. The petitioner felt that not having an attorney until the grand jury indicted him
disadvantaged him.
In April 2006, the public defender’s office assigned a specific public defender to
handle the petitioner’s case. He said that the only time that he met with his public defender
was when he went to court. The petitioner asked his public defender about filing a motion
to dismiss, and she told him that she would talk to him about it but never did.
The petitioner stated that someone filed a motion for bond reduction on his behalf, and
his public defender represented him at the hearing. She told him that the State had filed a
counter motion to increase or deny bond because he had written letters to family members
with whom he was not supposed to have contact. After learning of the State’s motion, the
petitioner told his public defender that he did not want to testify and that he wanted to
withdraw his motion. The petitioner said that despite wanting to withdraw his motion,
“somehow or another [he] was brought in [the courtroom] and ended up on the witness
stand.” He said that as a result of the hearing, the court increased his bond to $500,000.
The petitioner testified that neither a motion for a speedy trial nor a motion to dismiss
for failure to prosecute was filed on his behalf, so he went to the law library in the prison and
drafted a pro se motion to dismiss, which he filed on July 20, 2006. He said that the trial
judge would not hear his pro se motion because he was represented by counsel when he filed
the motion. The petitioner told the trial judge that he was unhappy with his public defender.
According to the petitioner, the trial judge “got mad at [him] and asked [him] why [he] was
filing complaints . . . and asked [him] how [his] lawyer was supposed to represent [him] if
[he] called her a liar and accused her of ethical violations[.]”
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The petitioner stated that he first met with trial counsel in the courtroom on August
17, 2006. The petitioner showed trial counsel the pro se motion to dismiss that he had
prepared. He said that trial counsel looked at the motion and told him, “This ain’t going
nowhere.” Trial counsel also told him that by firing the public defender and having the court
appoint a new attorney, the time for determining a speedy trial restarted. The petitioner
stated that he later learned that his right to a speedy trial began at his arrest.
The petitioner testified that trial counsel’s performance was an improvement from the
public defender’s. He said that trial counsel went to court, answered his calls, and discussed
his case with him. The petitioner said that he initially refused to take a plea agreement but
said that he accepted the plea agreement because trial counsel told him that he could not
make an adequate investigation because so much time had elapsed since the petitioner’s
arrest. He said that trial counsel told him that he would have handled the case differently had
the court initially assigned him to the petitioner’s case. The petitioner also stated that trial
counsel told him that if H.R. testified that the petitioner had abused her, the jury was going
to convict him.
After the petitioner decided to take the plea, he spoke with trial counsel about hiring
an investigator. He said that trial counsel advised him that it would be better if his family
paid for the investigator and told the petitioner how much an investigator would cost. The
petitioner said that his family was remodeling their home and could not afford to hire an
investigator. The petitioner asked trial counsel about filing a motion for an investigator. He
testified that trial counsel had received a call from the prosecutor, and the prosecutor told
trial counsel to hold off on filing a motion for an investigator because the State had a plea
offer that the petitioner could not refuse. Trial counsel visited the petitioner in jail and
presented the State’s offer. When he agreed to plead guilty, the petitioner did not have the
report from H.R.’s medical examination and was thinking about what trial counsel had told
him about the jury convicting him if H.R. testified. The petitioner said that he wanted to
enter an Alford plea because he was not going to admit to doing anything that he did not do.
The petitioner testified that on the date of the plea hearing, trial counsel met with him
in the court’s holding cell. He said that trial counsel asked him questions about his anatomy
and the victim’s weight. The petitioner asked trial counsel why he was asking such
questions, and trial counsel told him that he had a medical report from H.R.’s examination
that did not “‘quite jive out with the allegations.’” The petitioner asked whether the medical
report would help him in trial, and trial counsel responded that he did not think it would help.
The petitioner went forward with his guilty plea.
Although he could not recall how he received it, the petitioner said that he reviewed
H.R.’s medical report. The petitioner said that, after reviewing the report, he discovered that
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it was inconsistent with H.R.’s allegations and thought that the report was exculpatory. He
said that he wrote trial counsel a letter asking to withdraw his guilty plea. Trial counsel
visited him in jail and told him that it was too late to withdraw his guilty plea. The petitioner
told trial counsel that he did not want to stay in jail and wait for his sentencing hearing; he
just wanted “to go to the penitentiary and start doing [his] time and get this over with.”
The petitioner stated that, to him, the medical report was conclusive because it stated
that H.R.’s hymen could be seen to be intact. The petitioner felt that the report and
witnesses’ testimony would have exonerated him. He said that he would not have pleaded
guilty if he had known what the medical report contained. The petitioner stated that he was
most concerned with his case involving H.R. He said that had it not been for the charges in
that case, he would not have agreed to plead guilty.
The petitioner denied telling trial counsel that he committed a sexual act with his
sister-in-law on the night in question. He testified that he told trial counsel that he had a
prior consensual sexual relationship with his sister-in-law. He said that they had been
drinking, using cocaine, and partying the day in question and that what happened that night
was consensual and his sister-in-law was awake the entire time. On cross-examination, the
petitioner admitted that he pled guilty to possession of a Schedule I controlled substance in
1990.
The petitioner acknowledged that the trial judge went over his rights during the plea
hearing. The trial judge told the petitioner that he had the right to a jury trial, and the
petitioner knew that the court had set dates for his trial. The trial judge also told the
petitioner that it was his decision whether to go to trial. The petitioner admitted telling the
court he wanted to plead guilty and that he decided to plead guilty on his own.
The petitioner recalled that the State’s stipulation of fact detailed the evidence they
intended to present at trial, including H.R.’s medical report. The petitioner agreed that he
did not complain about trial counsel’s representation at the plea hearing or tell the court that
his attorney did not investigate the case fully. He further agreed that when he was before the
court for sentencing, he did not tell the court that he wanted to withdraw his guilty plea and
instead told the court that he wanted to waive sentencing.
Likewise, the petitioner agreed that his public defender advised him that the letters he
had written to H.R. and her mother would be admitted during the bond reduction hearing.
He said that he testified at his bond hearing because he was inexperienced with the legal
system and did not know that he should have said he did not want to go forward with his
motion. He said that he did not think the public defender had enough time to prepare the
case. He said that the public defender told him, “Oh, well, let’s just go in there, it will be all
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right.”
On redirect examination, the petitioner testified that he felt alienated and cut off when
no one responded to his letters and phone calls. He said that he could not afford to hire
private counsel and that although the trial court appointed the public defender’s office to his
case, “the right to counsel can’t be satisfied by mere appointment.” The petitioner asserted
that there had to be “meaningful advisory defenses” and there were none in his case. The
petitioner stated that his public defender’s representation was a large factor in why he
decided to plead guilty, and when the court appointed trial counsel to represent him, his case
was a “mess.” He thought that his public defender had too many cases and could not spend
any time on his case.
Upon questioning from the court, the petitioner agreed that during his plea colloquy
he answered “absolutely” when the trial judge asked him if was satisfied with trial counsel’s
representation. The petitioner said that, in hindsight, he knew that trial counsel should have
filed his motion for a speedy trial and motion to dismiss for failure to prosecute. He stated
that he was “more legally in tune” than he was then and felt that trial counsel should have
understood that he did not have time to adequately consider the medical report. The
petitioner said that he did not tell the court that he wanted to withdraw his plea at the time
he waived sentencing because he was “beat to death mentally.”
After hearing the evidence, the post-conviction court denied relief. The post-
conviction court found that: (1) the petitioner failed to carry his burden of proving that trial
counsel was ineffective, that trial counsel’s performance was deficient, or that he would have
proceeded to trial but for trial counsel’s performance; (2) the petitioner entered his guilty plea
voluntarily, understandingly, and knowingly; (3) the petitioner failed to prove a speedy trial
violation; and (4) the petitioner failed to prove prosecutorial misconduct. Thereafter, the
petitioner filed a timely appeal to this court.
ANALYSIS
I. Standard of Review
The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v. State,
922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual issues,
the appellate court should not reweigh or reevaluate the evidence. See Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of the law to
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the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978
S.W.2d 95, 96 (Tenn. 1998). The issues of deficient performance of counsel and possible
prejudice to the defense are mixed questions of law and fact and, thus, subject to de novo
review by the appellate court. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
II. The Petitioner’s Claims Before this Court
On appeal, the petitioner argues that (1) he was constructively denied counsel at a
critical stage of the proceedings against him; (2) he received the ineffective assistance of
counsel, which caused him to enter unknowing and involuntary pleas; (3) the State engaged
in prosecutorial misconduct; (4) the post-conviction court denied him a full and fair hearing;
and (5) the trial court denied him a speedy trial.
A. Denial of Counsel
The petitioner argues that the court’s “appointment of the ‘district public defender’
to represent him at the preliminary hearing, at the last minute and without any preparation
at all, amounted to a ‘mere formality’, and was totally insufficient to satisfy his right to
counsel as guaranteed by the state and federal constitutions.” He asserts that this
appointment constituted the constructive complete denial of counsel at a critical stage in the
proceeding sufficient to justify a presumption of prejudice under the standard announced in
United States v. Cronic, 466 U.S. 648 (1984), without the necessity of conducting an inquiry
into counsel’s actual performance or the effect it had on the trial.
In Cronic, the United States Supreme Court identified three scenarios involving the
right to counsel where the circumstances are “so likely to prejudice the accused that the cost
of litigating their effect in a particular case is unjustified.” Id. at 658 (footnote omitted). In
these circumstances, a presumption of prejudice is justified without the necessity of inquiring
into counsel’s actual performance at trial. Id. at 662. These scenarios are: (1) situations
involving “the complete denial of counsel,” where the accused is denied the presence of
counsel at “a critical stage” in the proceeding; (2) situations where “counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing”; and (3) situations where
“counsel is available to assist the accused during trial, [but] the likelihood that any lawyer,
even a fully competent one, could provide effective assistance is so small that a presumption
of prejudice is appropriate without inquiry into the actual conduct of the trial.” Id. at 659-60.
The petitioner claims that the last minute appointment of the district public defender
together with the public defender advising him to waive the preliminary hearing amounts to
the complete denial of counsel under Cronic. He asserts that he was unable to assert his right
to a speedy trial, file any motions, or conduct a pretrial investigation because he did not have
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counsel to help during the “critical pretrial stage of the prosecution.” The record indicated
that the general sessions court appointed the district public defender’s office to represent the
petitioner in that court. By the petitioner’s own testimony, a public defender was present for
his September 6, 2005 preliminary hearing and advised the petitioner to waive the hearing.
On October 28, 2005, the criminal court appointed the district public defender’s office to
represent the petitioner in that court. The district public defender filed a motion to reduce
bond on November 17, 2005, and a public defender represented the petitioner at the bond
reduction hearing. An attorney from the public defender’s office appeared on the petitioner’s
behalf on at least ten other court dates. On July 25, 2006, the criminal court relieved the
public defender’s office of its representation and appointed private counsel to represent the
petitioner.
The petitioner appears to take issue with the district public defender office’s policy
of not allocating an exclusive public defender to a defendant until after indictment. The
United States Supreme Court in Chambers v. Maroney, 399 U.S. 42 (1970), refused “to
fashion a per se rule requiring reversal of every conviction following tardy appointment of
counsel.” Id. at 53-54. Thus, a Sixth Amendment claim is sufficient without inquiry into
counsel’s actual performance at trial only when surrounding circumstances justify a
presumption of ineffectiveness. There is no such justification in this case. The petitioner had
the advice of counsel at all critical stages in his proceeding. The court appointed the public
defender’s office to represent the petitioner shortly after his arrest. Although the public
defender’s office had not yet assigned an exclusive attorney to represent him, an attorney
from the office was present at the preliminary hearing and gave the petitioner legal advice,
which the petitioner accepted. Moreover, an attorney from that office filed a motion to
reduce the petitioner’s bond and appeared at the bond hearing to represent the petitioner, as
well as at other court date appearances. Accordingly, we cannot agree with the petitioner’s
assertion that he was denied counsel and that the facts of his case warrant analysis under the
Cronic standard. The petitioner is not entitled to relief on this issue.
B. Ineffective Assistance of Counsel
Next, the petitioner asserts that trial counsel’s failure to investigate or otherwise
prepare for trial resulted in actual, demonstrable prejudice under the more familiar Strickland
standard. Specifically, he contends that trial counsel was deficient for failing to investigate
further into the results of H.R.’s medical examination, investigate applicable law regarding
the State’s using his prior conviction for impeachment, discover prosecutorial misconduct,
file a speedy trial motion, explain the elements of the charges, and move to withdraw the
petitioner’s guilty plea. He further contends that trial counsel’s alleged deficiencies
prejudiced him. We respectfully disagree.
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To determine the competence of counsel, Tennessee courts have applied standards
developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.
1997) (noting that the same standard for determining ineffective assistance of counsel that
is applied in federal cases also applies in Tennessee). The United States Supreme Court
articulated the standard in Strickland v. Washington, 466 U.S. 668 (1984), which is widely
accepted as the appropriate standard for all claims of a convicted petitioner that counsel’s
assistance was defective. The standard is firmly grounded in the belief that counsel plays a
role that is “critical to the ability of the adversarial system to produce just results.” Id. at 685.
The Strickland standard is a two-prong test:
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687. The Strickland court further explained the meaning of “deficient performance”
in the first prong of the test in the following way:
In any case presenting an ineffectiveness claim, the performance inquiry must
be whether counsel’s assistance was reasonable considering all the
circumstances . . . . No particular set of detailed rules for counsel’s conduct
can satisfactorily take account of the variety of circumstances faced by defense
counsel or the range of legitimate decisions regarding how best to represent a
criminal defendant.
Id. at 688-89. The petitioner must establish “that counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).
As for the prejudice prong of the test, the Strickland court stated: “The defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” 466 U.S. at 694; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that
“there is a reasonable probability that, but for counsel’s errors, the outcome of the
proceedings would have been different”).
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Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.
at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).
We note that when post-conviction proceedings have included a full evidentiary
hearing, as was true in this case, the trial judge’s findings of fact and conclusions of law are
given the effect and weight of a jury verdict, and this court is “bound by the trial judge’s
findings of fact unless we conclude that the evidence contained in the record preponderates
against the judgment entered in the cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn.
Crim. App. 1990). The reviewing court must indulge a strong presumption that the conduct
of counsel falls within the range of reasonable professional assistance, see Strickland, 466
U.S. at 690, and may not second-guess the tactical and strategic choices made by trial counsel
unless those choices were uninformed because of inadequate preparation. See Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a strategy or tactic failed or hurt the
defense does not alone support the claim of ineffective assistance of counsel. See Thompson
v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997). Finally, a person charged with a
criminal offense is not entitled to perfect representation. See Denton v. State, 945 S.W.2d
793, 796 (Tenn. Crim. App. 1996). As explained in Burns, 6 S.W.3d at 462, “[c]onduct that
is unreasonable under the facts of one case may be perfectly reasonable under the facts of
another.”
The post-conviction court accredited the testimony that trial counsel was an
experienced attorney who met with the petitioner at jail, communicated with the petitioner
on the telephone and through letters, filed for and obtained discovery, met with the State, and
reviewed witnesses’ statements. In addition, trial counsel prepared a motion to hire an
investigator but did not go forward with it at the petitioner’s request. Trial counsel went over
the offenses, the possible sentences, and the specifics of the plea agreement with the
petitioner. Trial counsel showed the petitioner the report from H.R.’s medical examination.
Trial counsel said that, in his professional opinion, the report was inconclusive and would
not help the petitioner’s case. Trial counsel discussed the speedy trial motion with the
petitioner and stated that because the trials were set within six months, the motion would not
be beneficial. Trial counsel stated that after he received the petitioner’s letter stating that he
wanted to withdraw his guilty plea, he discussed with the petitioner whether he should
withdraw his plea, and the petitioner decided to not withdraw his guilty plea and to waive his
sentencing hearing. The record fully supports the findings and conclusions of the
post-conviction court. The petitioner has not shown that trial counsel’s performance was
deficient and is not entitled to relief on this issue.
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In an interrelated argument, the petitioner argues that counsel’s alleged deficiencies
in seeking H.R.’s medical report resulted in his entry of an involuntary and unknowing guilty
plea. When analyzing a guilty plea, we look to the federal standard announced in Boykin
v. Alabama, 395 U.S. 238 (1969), and the state standard set out in State v. Mackey, 553
S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin,
the United States Supreme Court held that there must be an affirmative showing in the trial
court that a guilty plea was voluntarily and knowingly given before it can be accepted. 395
U.S. at 242. Similarly, our Tennessee Supreme Court in Mackey required an affirmative
showing of a voluntary and knowledgeable guilty plea, namely, that the defendant has been
made aware of the significant consequences of such a plea. Pettus, 986 S.W.2d at 542.
A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial
court must determine if the guilty plea is “knowing” by questioning the defendant to make
sure he or she fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;
Blankenship, 858 S .W.2d at 904. Because the plea must represent a voluntary and
intelligent choice among the alternatives available to the defendant, the trial court may look
at a number of circumstantial factors in making this determination. Blankenship, 858 S.W.2d
at 904. These factors include: (1) the defendant’s relative intelligence; (2) his familiarity
with criminal proceedings; (3) whether he was represented by competent counsel and had the
opportunity to confer with counsel about alternatives; (4) the advice of counsel and the court
about the charges against him and the penalty to be imposed; and (5) the defendant’s reasons
for pleading guilty, including the desire to avoid a greater penalty in a jury trial. Id. at 904-
05.
The record shows that the petitioner, who represented himself on appeal, could
communicate his ideas well, both verbally and in writing. The petitioner had pled guilty to
offenses in the past, and he was familiar with criminal proceedings. The transcript of the
guilty plea hearing reveals that the trial court appropriately informed the petitioner of his
constitutional rights and the specific rights he was waiving by pleading guilty. The petitioner
assured the trial court that his counsel had discussed the plea agreement with him, that he
fully understood its terms and the constitutional rights he was waiving by entering his plea,
and that he was freely and voluntarily entering the plea because he believed it was in his best
interest to do so. A petitioner’s testimony at a guilty plea hearing “constitute[s] a formidable
barrier” in any subsequent collateral proceeding because “[s]olemn declarations in open court
carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). The
trial court accredited the petitioner’s guilty plea hearing testimony over his post-conviction
testimony. Nothing in the record dispels the reliability of the petitioner’s guilty plea
testimony. The petitioner has failed to prove by clear and convincing evidence that his guilty
pleas were involuntary. We conclude, therefore, that the record shows that the petitioner’s
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guilty plea was knowingly, intelligently, and voluntarily entered.
C. Prosecutorial Misconduct
The petitioner further asserts that the State engaged in prosecutorial misconduct.
Specifically, the petitioner asserts that the State intentionally failed to obtain material
evidence, intentionally delayed presenting his case to the grand jury, and deceived the grand
jury.
The petitioner argues that the State intentionally failed to obtain and disclose the
results of H.R.’s medical examination. He further posits that, but for the belated disclosure
of the report, he would not have pleaded guilty and would have insisted on going to trial. In
Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court held that the
prosecution has a duty to furnish to the defendant exculpatory evidence pertaining either to
the accused’s guilt or innocence or to the potential punishment that may be imposed. The
Court explained that “suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Id. In order to
establish a Brady violation, a defendant must show that he or she requested the information,
the State suppressed the information, the information was favorable to his or her defense, and
the information was material. State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Evidence
is “material” only if there is a reasonable probability that the result of the proceeding would
have been different had the evidence been disclosed to the defense. United States v. Bagley,
473 U.S. 667, 682 (1985). The burden of proving a Brady violation rests with the defendant,
and the violation must be proven by a preponderance of the evidence. Edgin, 902 S.W.2d
at 389.
The post-conviction court found:
While the record reflects that there was a delay in the medical report
being made available to the District Attorney, the petitioner has not shown that
[the] report was in the possession of the State, that the delay was purposeful
or otherwise done to prevent the petitioner from having adequate time to
consider the report prior to a trial or plea.
The post-conviction court accredited Detective Russell’s testimony that he was unaware of
the report until the district attorney’s office notified him that H.R.’s private physician had
performed an examination. When the State became aware of the examination, it obtained a
copy of the results and forwarded them to trial counsel who discussed it with the petitioner.
The petitioner was aware of the report and its contents before he entered his guilty plea.
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Trial counsel opined that, based on his experience, the report was inconclusive. Thus, the
petitioner has failed to show that the State suppressed the information, the information was
favorable to his defense, and the information was material.
The petitioner claims that the prosecution intentionally delayed presenting its case to
the grand jury. As this court explained in State v. Dunning, 762 S.W.2d 142, 144 (Tenn.
Crim. App. 1988): “In order to achieve dismissal based upon . . . a delay [between the
offense and the indictment], the defendant must show that (1) the delay caused substantial
prejudice to his rights to a fair trial; and (2) the delay was an intentional device to gain
tactical advantage over the accused.”
In the case sub judice, obviously a delay occurred. There was an approximate seven-
month delay between the petitioner’s arrest and indictment in one case and an eleven-month
delay between arrest and indictment in the other. The post-conviction court found that the
delay was not so extensive as to deprive the petitioner of his due process rights. Detective
Russell explained that the delay was due to the investigation of the allegations and ensuring
that the offenses occurred in Sullivan County. A review of the record reveals nothing to alter
this conclusion. Additionally, no evidence exists that the State caused the delay to obtain a
tactical advantage. Thus, the petitioner was not deprived of due process as a result of the
delay.
Finally, the petitioner argues that the prosecution engaged in misconduct when it used
unnecessary and improper hearsay testimony to obtain the counts in case number S51,180
that involved acts occurring between August 1, 2005 and August 29, 2005. The petitioner
claims that there was no evidence that offenses occurred between those dates.
Detective Russell was the only person to testify at the grand jury hearing. The post-
conviction court accredited Detective Russell’s testimony that he did not specifically recall
testifying about incidents occurring in August 2005, but he could not say that he did not
testify to such incidents. While the affidavit filed in general sessions court did not refer to
any offenses in August, there was additional investigation, including an interview of the
victim, before the State presented the case to the grand jury. Moreover, the facts recited by
the State at the guilty plea hearing reflect that there was evidence that the sexual encounters
continued until August 29, 2005, and the petitioner acknowledged that the State would have
that evidence if there were a trial. The petitioner has failed to show that the prosecutors
engaged in deception or that there was no evidence that some offenses occurred in August
2005. Thus, he is not entitled to relief on this issue.
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D. Post-Conviction Hearing
The petitioner argues that he was denied compulsory process in the post-conviction
court when the post-conviction court refused to allow his public defender, H.R., or the
district attorney to testify at his evidentiary hearing. The petitioner claims that his public
defender’s testimony was necessary to show that he was denied counsel during the pretrial
stage and that H.R. and the district attorney’s testimony were necessary to show prosecutorial
misconduct. We disagree.
Although an accused in a criminal trial has a constitutional right to the compulsory
attendance of witnesses under the Sixth Amendment of the United States Constitution and
Article I, Section 9, of the Constitution of Tennessee, a petitioner’s right to compulsory
process for obtaining witnesses in his or her favor is not absolute. State v. Smith, 639
S.W.2d 677, 680 (Tenn. Crim. App. 1982).
“A court is not required to issue compulsory process for anyone whom accused
may designate as a witness; the constitutional right to compulsory process
requires such process for, and only for, competent, material, and resident
witnesses whose expected testimony will be admissible. Within these
limitations accused may obtain the attendance of any witnesses he cares to
use.”
Bacon v. State, 385 S.W.2d 107, 109 (Tenn. 1964) (quoting 97 C.J.S. Witnesses, § 9).
The petitioner has failed to demonstrate that any of these witnesses would have
offered any additional material evidence. The post-conviction court found that the public
defender’s testimony was irrelevant to whether the petitioner had effective assistance for the
purpose of his plea because she did not represent him during his plea. Likewise, the court
found that H.R. and the district attorney were not relevant witnesses to the post-conviction
hearing, as their potential testimonies had no bearing on the voluntarily and intelligent nature
of the petitioner’s guilty pleas. Under these circumstances, we conclude that the
post-conviction court did not abuse its discretion in not allowing the witnesses to testify.
E. Speedy Trial
The petitioner alleges that he was denied the right to a speedy trial. The Sixth
Amendment to the United States Constitution and article 1, section 9 of the Tennessee
Constitution guarantee the accused the right to a speedy and public trial. In determining
whether the petitioner’s right to a speedy trial was violated by the delay in this case, we must
consider the following four factors: (1) the length of the delay; (2) the reason for the delay;
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(3) the petitioner’s assertion of the right; and (4) the prejudice caused to the petitioner by the
delay. See State v. Bishop, 493 S.W.2d 81, 83-84 (Tenn. 1973) (citing Barker v. Wingo, 407
U.S. 514 (1972)). The second factor “generally falls into one of four categories: (1)
intentional delay to gain a tactical advantage over the defense or delay designed to harass the
defendant; (2) bureaucratic indifference or negligence; (3) delay necessary to the fair and
effective prosecution of the case; and (4) delay caused, or acquiesced in, by the defense.”
State v. Wood, 924 S.W.2d 342, 346-47 (Tenn. 1996) (footnotes omitted).
The post-conviction court found that the seven-month and eleven-month delays
between the petitioner’s arrest and his indictment were not extensive enough to deny him due
process. The court further found that the delays were due to investigations to determine the
jurisdiction of the offenses. The petitioner has not shown that the State delayed his
indictment or trial date for a tactical advantage or to prejudice the petitioner. The petitioner
asserted his right to a speedy trial via a pro se motion filed in July 2006. At that time, the
public defender’s office represented the petitioner and the trial court did not hear the motion.
Instead of hearing the motion, the trial court appointed trial counsel, who set the cases for
trial within six months. Trial counsel testified that the petitioner did not suffer any prejudice
due to the delay. Accordingly, we conclude that the record supports the trial court’s
determination that the petitioner was not denied his right to a speedy trial.
CONCLUSION
Based on our review, we conclude that the petitioner has not met his burden of
showing that trial counsel was ineffective or that his guilty pleas were unknowing and
involuntary. Accordingly, we affirm the dismissal of the petition for post-conviction relief.
_________________________________
ALAN E. GLENN, JUDGE
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