The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMBER 1998 SESSION
January 15, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
GARY (JAKE) HARRIS, )
) C.C.A. No. 03C01-9803-CR-00085
Appellant, )
) Unicoi County
v. )
) Honorable Lynn W . Brown, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Gary (Jake) Harris, pro se John Knox Walkup
West Tennessee High Security Facility Attorney General & Reporter
P. O. Box 1050 425 Fifth Avenue, North
Henning, TN 38041 Nashville, TN 37243-0493
Todd R. Kelley
Assistant Attorney General
425 Fifth Avenue, North
Nashville, TN 37243-0493
David E. Crockett
District Attorney General
Route 19, Box 99
Johnson City, TN 37601
Kent W. Garland
Assistant District Attorney General
Unicoi County Courthouse
Erwin, TN 37650
OPINION FILED: _______________________________
AFFIRMED
L. T. LAFFERTY, SENIOR JUDGE
OPINION
The appellant, Gary Harris, referred herein as the petitioner, appeals as of right from
the summary dismissal of his petition for post-conviction relief by the Unicoi County
Criminal Court. The trial court entered an order dismissing the petition for post-conviction
relief on the basis that the petition, taken as a whole, did not state a colorable claim for
post-conviction relief. In his pro se appeal, the petitioner presents six issues for review:
1. Whether the trial court erred in dismissing the
petitioner’s post-conviction petition without appointment
of counsel to add and/or amend the post-conviction
petition.
2. Whether the petitioner suffered from ineffective
assistance of counsel.
3. Whether the evidence used by the prosecution was
sufficient to convict the petitioner of the crime of
attempted murder first degree.
4. Whether the trial court erred in handing down a
sentence which was excessive and in violation of the
law.
5. Whether the trial court erred in allowing prejudicial
information into the trial that had no probative value and
in fact had absolutely nothing to do with the criminal
proceedings brought before the jury.
6. Whether the trial court erred in not allowing a witness
for the defense to present testimony in violation of the
petitioner’s constitutional rights.
After a review of the entire record, briefs of all parties, and the applicable law, the
trial court’s judgment is affirmed.
BACKGROUND
The facts at a jury trial revealed in November, 1992, the victim, the petitioner, and
a co-defendant, Johnny Wayne Harris, were at a party. The petitioner and co-defendant
are brothers and the victim is their cousin. The men got into a shouting match at the party.
When the victim attempted to leave the party, the petitioner and the co-defendant followed
him outside where the co-defendant shot him in the area of the groin, hip, and front thigh.
The victim was found several hours later in the street. He almost bled to death. As a result
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of the trial, the jury found the petitioner guilty of aiding and abetting the attempted murder
first degree of the victim.
On direct appeal, the petitioner presented two appellate issues: the evidence was
not sufficient to support his conviction and the trial court erred in imposing an excessive
sentence. This Court, in State v. Johnny Wayne Harris and Gary L. (Jake) Harris, No.
03C01-9507-CC-00202, 1996 LEXIS 421 (Tenn. Crim. App., Knoxville, July 19, 1996), per.
app. denied (Tenn. 1996), affirmed the trial court’s judgment.
On December 12, 1996, the petitioner filed a petition for post-conviction relief
alleging as grounds for relief: (1) the evidence was not sufficient to support a conviction
of aiding and abetting first degree murder; (2) prosecutorial misconduct on the part of the
District Attorney General; and (3) judicial misconduct for the arbitrary, capricious, and
uncaring disregard by the trial court. The petitioner requested appointment of counsel. On
August 12, 1997, the post-conviction court entered a preliminary order dismissing the
petition on the basis the petition did not state a colorable claim for relief.
On September 22, 1997, the petitioner filed a motion to reconsider in response to
the post-conviction court’s order of dismissal. In the motion to reconsider, the petitioner
enlarged on his claim for relief. The petitioner alleged that he raised ineffectiveness of his
counsel as one of his grounds for relief. The motion also contained some vague wordage
regarding the testimony of defense witnesses being guaranteed by the Sixth Amendment.
Again, the petitioner requested appointment of counsel to assist him in amending the
petition. On December 2, 1997, the post-conviction court entered an order denying the
motion to reconsider on the basis the motion and petition did not state a colorable claim
for post-conviction relief.
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LEGAL ANALYSIS
Since the petitioner contends the post-conviction court erred in dismissing the
petition without a hearing and appointment of counsel and the state disagrees, we will
resolve which party is correct.
The new Post-Conviction Procedure Act governs this petition and all petitions filed
after May 10, 1995. Tenn. Code Ann. § 40-30-201, et seq. Once a petition for post-
conviction relief has been filed, the trial court must examine the petition, together with all
files, records, transcripts, and correspondence relating to the judgment under attack.
Tenn. Code Ann. § 40-30-206(a). In the same statute, subsection (d) sets out the
requirements as to what the petition must contain:
The petition must contain a clear and specific statement of all
grounds upon which relief is sought, including full disclosure of
the factual basis of those grounds. A bare allegation that a
constitutional right has been violated and mere conclusions of
law shall not be sufficient to warrant any further proceedings.
Failure to state a factual basis for the grounds alleged shall
result in immediate dismissal of the petition. If, however, the
petition was filed pro se, the judge may enter an order stating
that the petitioner must file an amended petition that complies
with this section within fifteen (15) days or the petition will be
dismissed.
Tenn. Code Ann. § 40-30-206(d).
From a careful reading of the petition for post-conviction relief filed on December
12, 1996 in this record, the petitioner did not make a specific claim of the denial of effective
assistance of counsel. Nor did the petitioner allege any facts of ineffective assistance of
counsel which would support relief. In August, 1997, the post-conviction court was justified
in dismissing the petition for post-conviction relief based upon the allegations in the record.
The petitioner’s allegation of insufficient evidence to support his conviction for aiding and
abetting attempted murder first degree has been previously determined. See State v.
Johnny Wayne Harris and Gary L. (Jake) Harris, No. 03C01-9507-CC-00202, supra. An
issue has been previously determined “if a court of competent jurisdiction has ruled on the
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merits after a full and fair hearing.” Tenn. Code Ann. § 40-30-206(h). As to the allegations
of prosecutorial misconduct and judicial misconduct, these matters have been waived. The
petitioner must rebut the presumption that claims have been either waived or previously
determined. Tenn. Code Ann. § 40-30-204(e). The presumption of waiver exists as
follows:
A ground for relief is waived if the petitioner personally or
through an attorney failed to present it for determination in any
proceeding before a court of competent jurisdiction in which
the ground could have been presented unless:
(1) The claim for relief is based upon a constitutional
right not recognized as existing at the time of trial
if either the federal or state constitution requires
retroactive application of that right; or
(2) The failure to present the ground was the result
of state action in violation of the state or federal
constitution.
Tenn. Code Ann. § 40-30-206(g).
We find the post-conviction court was justified in summarily dismissing the petition
for post-conviction as of August, 1997.
In the motion to reconsider, the petitioner alleged for the first time deficiency in his
trial counsel’s representation. However, the petitioner failed to set forth any specific facts
or allegations in support thereof.1 The petitioner has failed to comply with the requirement
of the Tennessee Post-Conviction Procedure Act. Tenn. Code Ann. § 40-30-206. We do
not find the post-conviction court abused its discretion in denying the motion to reconsider
or in refusing to appoint counsel.
1
It is only on appeal in his brief that the petitioner sets forth a factual claim of
ineffective assistance of counsel.
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The post-conviction court’s judgment is affirmed.
________________________________________
L. T. LAFFERTY, SENIOR JUDGE
CONCUR:
___________________________________
DAVID H. WELLES, JUDGE
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
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