Ronnie Henry v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 9, 2015
RONNIE HENRY v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County
No. 03-08309 Glenn Wright, Judge
No. W2014-01786-CCA-R3-PC - Filed April 7, 2016
A Shelby County jury convicted the Petitioner, Ronnie Henry, of four counts of
aggravated robbery and four counts of robbery, and the trial court sentenced him to
seventy years in prison. The Petitioner appealed his conviction and sentence, and this
Court affirmed his convictions and remanded the case on a sentencing issue. See State v.
Ronnie Henry, No. W2006-00344-CCA-R3-CD, 2008 WL 450459, at *5 (Tenn. Crim.
App., at Jackson, Feb. 19, 2008), perm. app. denied (Tenn. 2008). The Petitioner was
resentenced on remand and his sentence was affirmed on appeal. State v. Ronnie Henry,
No. W2009-00089-CCA-R3-CD, 2009 WL 3103823, at *5 (Tenn. Crim. App., at
Jackson, Sept. 28, 2009), no Tenn. R. App. P. 11 application filed. In 2010, the Petitioner
filed a pro se petition for post-conviction relief. The post-conviction court appointed
counsel who filed an amended petition for post-conviction relief alleging that the
Petitioner had received the ineffective assistance of counsel. The trial court held a
hearing on the petition and denied relief. We affirm the post-conviction court’s
judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ALAN E. GLENN, J., joined.
Ronnie Henry, Clifton, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; Paul Goodman, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
I. Facts and Procedural History
This case arises from a robbery that occurred at an Enterprise Rental Car Agency
store in Memphis, Tennessee. For this offense, a Shelby County grand jury indicted the
Petitioner for four counts of aggravated robbery and four counts of robbery.
A. Trial
In our opinion on the Petitioner’s appeal of his conviction and sentence, this Court
provided a brief summary of the evidence presented at trial:
Mario Colbert testified that he and a friend, Torrie Lyles, were at the
Enterprise location exchanging a rental car. The two men saw Russell
Jones, the branch manager, counting money in his office. Lyles told
Colbert he was going to call the [Petitioner] and did so. Approximately
fifteen minutes later, the [Petitioner] and Vincent Williams came to the
Enterprise location. Williams wore a stocking mask, but the [Petitioner’s]
face was not covered. The [Petitioner] and Williams ordered the people
inside the building to get on the ground. Williams was holding a pistol.
Colbert and Lyles placed themselves on the floor and pretended to be
victims of the robbery. Colbert stated that Russell Jones was robbed, but he
did not watch other individuals being victimized. Colbert and Lyles stayed
on the scene after the police arrived and continued the ruse of being
victims. Later, Colbert met with Lyles, Williams, and the [Petitioner] at the
home of Lyles’[s] brother, where the [Petitioner] distributed the robbery
proceeds. Colbert said he received “seven hundred and something” but did
not know how much was taken or how it was divided.
On cross-examination, Colbert stated that the [Petitioner] and
Williams were the only individuals who conducted the robbery. The only
weapon he observed was in Williams’[s] possession.
Russell Jones testified that he was the branch manager of the subject
Enterprise location in July 2002. Jones knew Colbert as a regular rental car
customer and said Lyles would accompany him. Jones was counting the
store’s cash proceeds when he heard a disturbance in the lobby. The
[Petitioner] entered the office and forced Jones to the floor. The
[Petitioner] then took the box of cash, Jones’[s] wallet, briefcase, and
cardholder. The [Petitioner] attempted to remove a ring but Jones
successfully resisted. Jones heard a small girl scream and the girl’s mother
pleading not to shoot. He stated that he saw two men with guns.
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Approximately six months later, Jones attempted to identify the masked
robber from a photo lineup. No identification was made at that time. Later,
he identified the [Petitioner] from a photo lineup as the individual who had
robbed him. Jones also identified the [Petitioner] at the preliminary hearing
and at trial. Jones did not see the [Petitioner] with a weapon during the
robberies.
Naziroddin Kazi was visiting at the Enterprise agency when the
robbery occurred. He saw two men running toward the store. They entered
the business and ordered those inside to get down. Kazi saw a revolver but
did not get a good view of either man. Kazi was placed on the floor with a
gun to his head. He was frisked, and his car keys, wallet, and
approximately $400 were taken from him.
Brian Denton, the Enterprise assistant manager, was working behind
the rental counter when the robbery began. He was commanded to get
down by a masked man who was pointing a gun at him. He did not see any
others involved in the robbery but could hear other voices making demands.
He was asked where the money was kept, and he pointed toward Jones’[s]
office. The items taken from Denton were his car keys, a cigarette lighter,
and twenty to thirty dollars. He stated that he could hear other victims
screaming and pleading.
Frank Scott was an intern at the agency at the time of the robbery.
He stated that he had just walked into the building when he was told to “hit
the ground.” One of the robbers placed a gun to his head and walked him
to the office. Scott saw the [Petitioner] take the money from the office.
Approximately $3000 was taken from the cash box. Scott was robbed of
his cell phone and his wallet which contained approximately thirty dollars.
In February 2003, he identified the [Petitioner] from a photo lineup as a
participant in the robbery. He also identified him in General Sessions
Court and at trial.
Officer Gary Badgett of the Memphis Police Department was an
early responder to a radio alert of a robbery in progress. He testified that he
spoke with Lyles and Colbert at the scene. He said both men seemed to be
smiling and without any anger or nervousness from the event.
Vincent Williams was the only defense witness. He testified that he
was in the Shelby County Jail in February 2004 when a guard brought
Mario Colbert to his cell. After Colbert introduced himself, Williams asked
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him “why did he tell a lie on me.” Colbert responded that his “beef” was
with the [Petitioner] and not with Williams.
Henry, 2008 WL 450459, at *1-2.
The jury convicted the Petitioner of four counts of aggravated robbery and four
counts of robbery, and the trial court sentenced him to twenty years for each aggravated
robbery as a multiple offender and fifteen years for each robbery as a persistent offender,
for an effective sentence of seventy years in the Tennessee Department of Correction. Id.
at *1-5. On appeal, this Court affirmed the Petitioner’s convictions but remanded his
case on the issue of sentencing, with instructions to the trial court to specifically address
the weight given to the enhancement factors applied to the Petitioner’s sentence. Id. at
*5. On remand, the trial court again sentenced the Petitioner to an effective sentence of
seventy years in the Tennessee Department of Correction. Henry, 2009 WL 3103823, at
*1. This Court affirmed the Petitioner’s sentence. Id.
B. Post-Conviction Proceedings
The Petitioner then filed a petition for post-conviction relief, pro se, in which he
alleged that he had received the ineffective assistance of counsel. The post-conviction
court appointed an attorney, and the attorney filed an amended petition, alleging that the
Petitioner had received the ineffective assistance of counsel because: (1) his trial counsel
(“Counsel”) failed to investigate or question at trial pertinent witnesses; (2) Counsel
failed to subpoena phone records for the Petitioner and Torrie Lyles; (3) Counsel failed to
file “necessary” pre-trial motions; (4) Counsel failed to properly cross-examine and
impeach the State’s witnesses; and (5) Counsel failed to object to the State’s untimely
filing of the notice to seek an enhanced punishment. The amended petition also alleged
that the Petitioner’s due process rights were violated when: (1) the State introduced false
or inaccurate facts at trial; and (2) the trial court allowed inadmissible hearsay testimony
from Mario Colbert.
The post-conviction court subsequently held a hearing, a transcript of which is not
in the record, following which it issued an order denying the petition. The post-
conviction court concluded that the Petitioner had failed to show that Counsel’s
representation was deficient and had failed to prove that he had been prejudiced by
Counsel’s representation. The post-conviction court also concluded that the Petitioner
had failed to establish that he had been denied due process of law. It is from the post-
conviction court’s judgment that the Petitioner now appeals.
After the post-conviction hearing but before the Petitioner’s appeal, the post-
conviction court appointed a new attorney to represent the Petitioner for his post-
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conviction appeal. The Petitioner filed a notice of appeal September 8, 2014. Over the
next year, multiple motions and requests were filed by the Petitioner with the trial court,
post-conviction court, as well as this Court. Those proceedings were summarized by this
Court in a September 24, 2015 order:
On September 16, 2014, the Clerk of this Court received a notice of appeal
filed by counsel on behalf of the [Petitioner] in which he challenged the
trial court’s order denying post-conviction relief. On October 28, 2014, the
[Petitioner] filed a motion requesting that he be allowed to proceed pro se
on appeal. Shortly thereafter, counsel for the [Petitioner] filed a motion for
an extension of time in which to file the transcript in the trial court. On
November 10, 2014, this Court entered an order remanding the matter to
the trial court regarding the [Petitioner’s] request to proceed pro se on
appeal. This Court also granted the motion for an extension of time in
which to file the transcript. On December 19, 2014, the Clerk of this Court
received the trial court’s order granting the [Petitioner’s] motion to proceed
pro se on appeal.
On December 29, 2014, the [Petitioner] filed a pro se motion seeking
a second extension of time in which to file the transcript in the trial court.
This Court granted the [Petitioner] an extension of up to and including
January 26, 2015, in which to file a brief. On January 29, 2015, the
[Petitioner] filed a pro se motion seeking a third extension of time in which
to file the transcript in the trial court. This Court granted the [Petitioner] an
extension of up to and including February 25, 2015, in which to file a brief.
On April 2, 2015, the appellate record was filed but only included
one volume of technical record. An order was entered on May 4, 2015,
granting the [Petitioner’s] request for an extension of time in which to file a
brief and instructing the Clerk of this Court to send a copy of the appellate
record to the [Petitioner]. On May 29, 2015, this Court entered an order
remanding the matter to the trial court on the issue of whether the
proceedings had been transcribed.
In the meantime, the [Petitioner] filed a motion in the trial court
seeking an order compelling the court reporter to produce the transcript.
On June 12, 2015, the State filed a response and attached a “Receipt of
Transcript,” which noted that an original and copy of the transcripts for
each hearing were provided on February 12, 2015. The State also attached
an affidavit from Martha A. Jackson, Court Reporter Administrator for the
Criminal Court Reporters, dated June 4, 2015, in which Ms. Jackson stated
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that the transcripts of various proceedings on six different dates had been
prepared and provided to the [Petitioner’s] prior counsel “and/or” the
[Petitioner’s] mother. Finally, the State attached a copy of a letter from the
[Petitioner’s] prior counsel in which she stated that on December 12, 2014,
she gave the [Petitioner] the original and a copy of the transcripts of the
hearings that occurred on October 10, 2013, and March 28, 2014.
Following a hearing, the trial court entered an order on June 15, 2015,
noting that during the hearing, the Appellant “acknowledged on the record
that he had received the Post-conviction transcripts.” The supplemental
record consisting of the [Petitioner’s] motion, the State’s response, and the
trial court’s order was filed with the Clerk of this Court on June 17, 2015.
On July 1, 2015, this Court entered an order noting the trial court’s
findings that the [Petitioner] had been provided with the transcripts and
requiring the [Petitioner] to file the transcripts with the trial court clerk
within ten days. This Court further ordered the trial court clerk to file the
transcripts within ten days of the receipt of the transcripts or a notice that
no transcripts had been received. This Court further ordered the
[Petitioner] to file an appellate brief within thirty days of the filing of the
supplemental record. On July 8, 2015, this Court entered an order granting
the [Petitioner’s] request for a copy of the supplemental record filed on
June 17, 2015.
On July 29, 2015, a supplemental record was filed with the Clerk of
this Court. The record consisted only of a notice from the trial court clerk
that no transcripts were ever filed in his office. In his “Motion for
Consideration of Post-Judgment Facts,” the [Petitioner] requested that this
Court take notice of a “Motion to Transmit the Record” that he sent to the
trial court on June 23, 2015. In the motion, the [Petitioner] requested that
the trial court order the trial court clerk to forward the transcripts of the
proceedings to the Clerk of this Court.
On August 10, 2015, this Court entered an order noting that the
[Petitioner] has a duty to ensure that the applicable transcripts are filed in
the trial court. See Tenn. R. App. P. 24(b). This Court stated that the
[Petitioner] failed to comply with the Tennessee Rules of Appellate
Procedure and the orders of this Court. This Court noted that the
[Petitioner] attempted to place the blame upon the trial court clerk.
This Court stated that the [Petitioner’s] failure to comply with the
Tennessee Rules of Appellate Procedure and the orders of this Court has
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resulted in numerous delays of the [Petitioner’s] appeal. This Court denied
the [Petitioner’s] request for yet another delay in supplementing the
appellate record with the transcript from the post-conviction proceedings
and ordered that the appeal proceed with the appellate record that had
previously been filed in the trial court. This Court further ordered the
[Petitioner] to file a brief by August 28, 2015. The [Petitioner] filed a brief
on August 14, 2015.
The [Petitioner] then filed a “Motion for Clarification” regarding this
Court’s August 10, 2015 order. The [Petitioner] stated that he sent the
transcript of the post-conviction proceedings to the Clerk of this Court and
that the Clerk received the transcript on August 9, 2015. On August 24,
2015, this Court entered an order stating that the [Petitioner] did not send
the transcript of the post-conviction proceedings to the Clerk of this Court.
Rather, the [Petitioner] sent one volume of the transcript from his trial in
September 2006. This Court noted that the transcript of the [Petitioner’s]
trial had previously been filed with the Clerk of this Court in connection
with the [Petitioner’s] direct appeal of his convictions in case numbers
W2006-00344-CCA-R3-CD and W2009-00089-CCA-R3-CD. This Court
further noted that we may take judicial notice of the archived appellate
record from the [Petitioner’s] prior appeal. Accordingly, this Court denied
the [Petitioner’s] “Motion for Clarification.”
On August 24, 2015, the [Petitioner] filed a motion to supplement
the appellate record with the transcripts proceedings in the post-conviction
court from July 17, 2014; August 27, 2014; and December 12, 2014. The
[Petitioner] has attached the original transcripts from the proceedings.
According to the transcripts, the proceedings on July 17 and August 27
were status hearings, and the proceeding on December 12 was the hearing
in which the post-conviction court concluded that the [Petitioner]
knowingly and voluntarily waived his right to counsel and elected to
proceed pro se on appeal. On September 11, 2015, this Court entered an
order denying the motion. The Court stated that the [Petitioner] failed to
explain how these proceedings are necessary for adequate review of the
issues that he has raised on appeal.
The [Petitioner] now seeks to supplement the appellate record with
the post-conviction transcripts and has attached copies of the transcripts to
his motion. More than one year has passed since the Clerk of this Court
received the [Petitioner’s] notice of appeal. The [Petitioner] has been given
multiple opportunities to file the transcript of the post-conviction
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proceedings. Both this Court and the post-conviction court have instructed
the [Petitioner] to file the transcript with the trial court clerk. Although the
[Petitioner] acknowledged to the post-conviction court that he possessed
the transcript of the post-conviction proceedings, he failed to file them with
the trial court clerk as instructed. The [Petitioner] filed his brief in this
Court on August 14, 2015, and the State filed its brief on August 26, 2015.
It is only after briefing has been completed that the [Petitioner] finally
produced copies of the post-conviction transcript. It is apparent that the
[Petitioner] has engaged in conduct in an effort to delay the resolution of
this appeal at every juncture. Based upon the procedural history of this
appeal, this Court concludes that the [Petitioner] has failed to establish
good cause justifying a granting of this motion and yet another delay in the
resolution of this case.
Pursuant to this order, this Court denied the Petitioner’s motion to supplement the
appellate record.
II. Analysis
The Petitioner contends on appeal that the post-conviction court erred when it
denied his petition because he received the ineffective assistance of counsel at trial and
during post-conviction proceedings on multiple bases. The State responds that the record
provided by the Petitioner is incomplete, and, thus, this Court “must conclude that the
[post-conviction] court’s holdings are supported by the record and that the [Petitioner]
has waived review of his claims.” We agree with the State.
In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2014). The post-conviction court’s findings of fact are conclusive
on appeal unless the evidence preponderates against it. Fields v. State, 40 S.W.3d 450,
456-57 (Tenn. 2001). Upon review, this Court will not re-weigh or re-evaluate the
evidence below; all questions concerning the credibility of witnesses, the weight and
value to be given their testimony and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction
court’s conclusions of law, however, are subject to a purely de novo review by this Court,
with no presumption of correctness. Id. at 457.
After multiple grants of extensions to allow the Petitioner to supplement the record
with the post-conviction hearing transcript, the Petitioner’s motion to supplement the
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record with the hearing transcript was denied by this Court in a detailed and well-
reasoned order dated September 24, 2015. It follows that the transcript is not in the
record on appeal before this Court. It is the duty of the Petitioner to provide a record
which conveys a fair, accurate, and complete account of what transpired with regard to
the issues which form the basis of the appeal. See Tenn. R. App. P. 24(b); see State v.
Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). The Petitioner has failed to fulfill that duty.
When presented with an inadequate record on appeal, this Court must presume that the
trial court ruled correctly. See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App.
1993). We conclude that the Petitioner has waived review of his issues on appeal and
affirm the post-conviction court’s judgment.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the
post-conviction court’s judgment.
________________________________
ROBERT W. WEDEMEYER, JUDGE
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