Gibson v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY SESSION, 1998 FILED

September 30, 1998

Cecil W. Crowson

DAVID L. GIBSON, )

Appellate Court Clerk

) No. 01C01-9710-CC-00473

Appellant )

) BEDFORD COUNTY

vs. )

) Hon. CHARLES LEE, Judge

STATE OF TENNESSEE, )

) (Post-Conviction)

Appellee )

For the Appellant: For the Appellee:

Curtis H. Gann John Knox Walkup

Asst. Public Defender Attorney General and Reporter

P. O. Box 1119

Fayetteville, TN 37334 Elizabeth A. Marney

Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

John Harwell Dickey Nashville, TN 37243-0493

District Public Defender

William Michael McCown

District Attorney General

Robert Crigler

Asst. District Attorney General

One Public Square, STE 100

Shelbyville, TN 37160

OPINION FILED:

AFFIRMED; DELAYED APPEAL GRANTED WITH JUDGMENT IN CASE NO.

01C01-9503-CC-00099 VACATED AND REINSTATED

David G. Hayes

Judge

OPINION

The appellant, David L. Gibson, appeals the denial of his petition for post-

conviction relief by the Bedford County Circuit Court. A jury convicted him of

attempted first-degree murder and imposed a $50,000 fine.1 The trial judge

sentenced him to twenty-two (22) years and nine (9) months as a range I standard

offender. His conviction was affirmed on direct appeal to this court. See State v.

Gibson, No. 01C01-9503-CC-00099 (Tenn. Crim. App. at Nashville, Jan. 26, 1996).

The appellant filed a pro se petition for post-conviction relief in January 1997, which

was subsequently amended after counsel was appointed. Following a hearing on

the merits, the post-conviction court denied the appellant’s petition for post-

conviction relief.

From this denial, the appellant now appeals as of right asserting

ineffectiveness of counsel at trial and on appeal, contending that counsel’s

performance was deficient for:

(1) failing to gain his consent to waive the preliminary hearing;

(2) failing to interview witnesses for either the defense or the State;

(3) failing to subpoena witnesses for the defense;

(4) failing to adequately prepare the appellant and the appellant’s son,

Eric, for direct and cross-examination;

(5) failing to advise him of the range of punishment for the indicted

offenses;

(6) failing to advise him of a plea bargain offer from the prosecution a

few days preceding trial;

1

The appellant’s conviction stems from the December 1994 attempted murder of Violet

Tant, his ex-wife. Mr. Gibson shot the victim three times from his car, then exited the car and shot

her a gain. At trial, the a ppe llant a dm itted th at he shot Ms. T ant b eca use she h ad be en alle ged ly

having a n affair with T im Cr aig and h ad sub seque ntly rema rried Dou g Tan t.

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(7) failing to advise him of his Fifth Amendment right against self-

incrimination;

(8) failing to properly communicate with him during the trial;

(9) failing to perfect appellant’s permission to appeal to the supreme

court or to advise him of his pro se rights to appeal with regard to the

supreme court.

After a review of the record, we affirm the court’s denial of post-conviction

relief relative to the ineffective assistance of counsel at trial. However, we find

appellant’s issue nine (9), requesting a delayed appeal of his original conviction to

the supreme court, meritorious. Accordingly, he is granted the right to seek a

delayed appeal to the Tennessee Supreme Court.

I. Delayed Appeal

First, we address the appellant’s right to a delayed appeal. The appellant

avers that counsel was ineffective because he failed to apply for permission to

appeal to the Tennessee Supreme Court, pursuant to Tenn. R. App. P. 11, or to

explain to him his rights for filing a pro se petition to the supreme court of this state.

In an effort to comply with Rule 14, Tenn. Sup. Ct. R., counsel testified that a copy

of the opinion and computer printouts from the Court of Criminal Appeals were

mailed to the appellant on January 30, 1996, four days after the judgment was

affirmed . Although one of the printouts mailed to the appellant explained the

procedure of appealing to the supreme court, counsel never explained specifically

how to apply for a pro se permission to appeal. Counsel never filed an application

for permission to appeal on behalf of the appellant, nor did he file a motion to

withdraw in the Court of Criminal Appeals. The only other correspondence with the

appellant was in a letter dated October 10, 1996, well after the time for permission

to appeal had expired.

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We cannot ignore the fact that this appellant was entitled to petition the

supreme court for review of his conviction of attempted first-degree murder.

Pursuant to Pinkston v. State, 668 S.W.2d 676, 677 (Tenn. Crim. App.), perm. to

appeal denied, (Tenn. 1984), this court provided that, “unilateral termination of a

direct appeal following first-tier review entitles a prospective appellant to relief in the

form of a delayed appeal.” See also Miles v. State, No. 03C01-9701-CC-00029

(Tenn. Crim. App. at Knoxville, Oct. 3, 1997); Patrick v. State, No. 02C01-9409-CC-

00194 (Tenn. Crim. App. at Jackson, Feb. 15, 1995), perm. to appeal denied,

(Tenn. July 3, 1995). Nor can we overlook the fact that the record reflects that the

appellant did not receive appropriate protection of his rights to appeal pro se to the

supreme court. The minimum requirements to assure that an appellant’s due

process rights are protected on appeal are defined in Rule 14, Tenn. Sup. Ct. R.

See State v. Brown, 653 S.W.2d 765, 766-67 (Tenn. Crim. App. 1983); State v.

Luster, No. 02C01-9409-CR-00205 (Tenn. Crim. App. at Jackson, July 19, 1995).

The post-conviction court found that the appellant’s attorney failed to advise

him of his right to appeal to the Tennessee Supreme Court from the Court of

Criminal Appeals. The court further found that the appellant’s right to supreme court

review of his conviction was not properly protected under Rule 14, Tenn. Sup. Ct. R.

Moreover, the proof in the record was undisputed that the appellant was denied the

opportunity of review by the supreme court through no fault of his own. Although

finding a factual basis for relief, the post-conviction court opined that it lacked the

authority to vacate and reinstate the Court of Criminal Appeal’s judgment.

Specifically, the post-conviction court observed:

[T]his Court is not empowered to grant the Defendant a delayed

appeal from the . . . Court of Criminal Appeals’ decision. It can,

however, make a finding of fact that there is a due process problem,

and the Court so finds. . . . [u]pon the appeal . . . of the Court’s

decision . . . the Court of Criminal Appeals can reinstate their judgment

... .

I can grant delayed appeals on appeals that could be taken from this

Court. I do not believe I have the power to set aside the judgment of

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the Court of [Criminal] Appeals . . . and then reinstate their judgment

for that purpose.

While the trial court’s position was correct under prior law, the 1995 Post-Conviction

Procedure Act expressly provides the trial courts with the authority to grant a

delayed appeal for second tier appellate review. See Tenn. Code Ann. § 40-30-

213(a) (1997); Tenn. Sup. Ct. R. 28 § 9(D). See also Mendez v. State, No. 01C01-

9703-CC-00076 (Tenn. Crim. App. at Nashville, Jun. 30, 1998). The State does not

oppose the relief sought by the appellant. The appellant should be allowed to seek

review by the supreme court on a delayed basis.

From a procedural aspect, we note at this juncture that the appellant in this

appeal seeks relief in two different directions: (1) from the supreme court for second

tier appellate review of his original conviction and (2) for a new trial pursuant to post-

conviction relief. Our ruling in this case will have the effect of permitting two appeals

to be entertained at the same time, i.e., a Rule 11 application to appeal from the

original conviction and a Rule 11 application for permission to appeal from our ruling

denying post-conviction relief. A petition for post-conviction relief, complaining of

the original conviction and sentence, may not be maintained while a direct appeal of

the same conviction and sentence is being prosecuted. See Laney v. State, 826

S.W.2d 117, 118 (Tenn. 1992); Jones v. State, 453 S.W.2d 433, (Tenn. Crim. App.),

cert. denied, (Tenn. 1970); Crain v. State, 451 S.W.2d 695 (Tenn. Crim. App.), cert.

denied, (Tenn. 1970); Hunter v. State, 443 S.W.2d 532 (Tenn. Crim. App.), cert.

denied, (Tenn. 1969). See, e.g., Tenn. Code Ann. § 40-30-202(a) and (c) (1997). 2

Because a post-conviction petition may not be filed until the final judgment of the

highest court has been entered, see Tenn. Code Ann. § 40-30-202, the instant

petition for post-conviction relief was filed prematurely and should have been

dismissed accordingly. Moreover, if the appellant’s Rule 11 application for

2

But see Miles v. Sta te, No. 03C 01-970 1-CC -00029 (Tenn . Crim. A pp. at Kno xville, Oct.

3, 1997) ; State v. Luster, No. 02C01-9409-CR-00205 (Tenn. Crim. App. At Jackson, July 19,

1995) (permitting post-conviction and direct appeals to proceed simultaneously).

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permission to appeal from his original conviction is granted and the ultimate holding

by the supreme court is favorable to the appellant, this court’s time has been wasted

on an appellate issue which is rendered moot. See Laney, 826 S.W.2d at 118.

In those situations where an appellant seeks post-conviction relief both in the

form of a new trial and a delayed appeal, we believe the better procedure is for the

trial court to grant the delayed appeal, when warranted, and dismiss the collateral

attack upon the conviction without prejudice. We are cognizant of the statutory

provision which contemplates the filing of only one petition for post-conviction relief

from a single judgment. Tenn. Code Ann. § 40-30-202(c). This statute provides

that if a petition has been resolved on its merits, a subsequent petition must be

summarily dismissed. Tenn Code Ann. §§ 40-30-202(c); 40-30-206(b). Conversely,

we interpret this to mean that those petitions not resolved “on their merits” are not

subject to dismissal. Id. This procedure would allow the appellant to pursue his

post-conviction relief after review from the supreme court. The order of the supreme

court denying an application for permission to appeal pursuant to Rule 11 shall be

deemed a final judgment and the petition for post-conviction relief must be filed

within one year of the date of this order; otherwise, the petition is barred. Tenn.

Code Ann. § 40-30-202. However, due to the posture of the appellant’s appeal

before this court seeking redress in the form of a delayed appeal and a new trial, we

have elected to address each of these issues in turn.

II. Ineffective Assistance of Counsel

Again, the appellant asserts that he was denied effective representation at

the trial level because of his counsel’s failure to (1) gain his consent in waiving the

preliminary hearing; (2) interview witnesses for either the State or defense; (3)

subpoena witnesses for the defense; (4) prepare him and his son for direct and

cross-examination; (5) advise the appellant of the range of punishment for the

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indicted offenses; (6) advise the appellant of a plea bargain offer from the

prosecution a few days preceding trial; (7) advise him of his Fifth Amendment right

against self-incrimination; and (8) properly communicate with appellant during the

trial.

The proof at the post-conviction hearing consisted solely of the testimony of

the appellant and his trial counsel. After hearing the testimony of both witnesses,

the trial court entered extensive findings of fact and conclusions of law, which, in

relevant part, include:

. . . Mr. Dearing has exhibited in his testimony a working knowledge of

the State’s case against his client. He had a trial strategy which was

forcefully put forward during the course of the trial. . . . [I]t is obvious

to the court that he did investigate this case fully and did discuss this

matter with his client as well as the witnesses.

So on that factual issue the Court will find that the facts are that Mr.

Dearing conducted an effective investigation of this case well above

that which would be necessary under Baxter v. Rose, that he did talk

with his client about trial strategy.

. . . [T] he court does not find any shortcomings with his performance.

. . . [W]ith regard to the witness Craig that Mr. Dearing spoke with and

made a tactical decision not to call him, that is not a question that in

the court’s mind affects the effectiveness of Mr. Dearing as an

attorney.

The facts of this case were overwhelming. You had a victim who

survived a vicious and near fatal attack upon her person who identified

the defendant as the perpetrator so the only defense he had, if any,

was not guilty of what I’m charged with; I’m guilty of something else.

To be successful in an ineffective assistance of counsel claim the

defendant must show the attorney’s performance was deficient. The

defendant has not done that today in any respect whatsoever.

The Court finds that . . . the trial strategies that counsel for the defense

made during the course of the trial were the appropriate trial

strategies; that he was prepared after having investigated the matter.

With regard to the defendant’s testifying, the defendant . . . has

inconsistent positions. I wanted to tell my entire story. Then he says .

. . my attorney made me get up there.

Well, I don’t think you could have tied Mr. Gibson with a team of mules

to have kept him off that witness stand. . . . He wanted his forum to

tell the world how sorry his ex-wife had been to him.

7

However, even so putting the petitioner on the witness stand was the

correct trial strategy if the jury could develop some sympathy with him.

To have a client who says my passions were so overwhelmed that

caused me to shoot this woman four times and then for that person not

to get on the witness stand to explain that to the jury would have been

incompetent.

The trial strategy was correct. The Court finds that Mr. Dearing did

advise the defendant of his rights.

The Court finds that there was no offer . . . communicated of 12 years.

...

Mr. Dearing said there was no offer and the court makes that finding of

fact.

In short the defendant has failed to carry his burden of proof with

regard to the trial preparations and performance of counsel.

Since appellant’s petition was filed on January 22, 1997, it is governed by

provisions of the 1995 Post-Conviction Procedure Act. Thus, at the post-conviction

hearing, the appellant bears the burden of establishing his allegations contained in

the petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f)

(1997). Findings of fact and conclusions of law made by the post-conviction court

are given the weight of a jury verdict. Davis v. State, 912 S.W.2d 689, 697 (Tenn.

1995). Unless the evidence contained in the record preponderates against the

judgment, this court is bound by those findings on appeal. Id. This court may not

reweigh or reevaluate the evidence or substitute its inferences for those drawn by

the trial court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

To succeed in a challenge for ineffective assistance of counsel, the appellant

must demonstrate that counsel’s representation fell below the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052,

2064 (1984), the appellant must establish (1) deficient representation and (2)

prejudice resulting from the deficiency. See also State v. Melson, 772 S.W.2d 417,

419 n.2 (Tenn.), cert. denied, 493 U.S. 874, 110 S.Ct. 211 (1989).

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In the case at bar, the post-conviction court found that the appellant failed to

carry his burden of proof of clear and convincing evidence with regard to the trial

preparations and performance of counsel. We conclude that there is no evidence

contained within the record that preponderates against those findings.

Based upon the foregoing, we affirm the post-conviction court’s denial of

post-conviction relief relative to the ineffective assistance of counsel at trial, but the

record preponderates a sufficient basis for relief in order to allow the appellant to

seek review of this court’s judgment by the supreme court in a delayed appeal.

Therefore, we vacate our judgment filed on January 26, 1996, in State v. Gibson,

No. 01C01-9503-CC-00099, and reenter it, effective as of the date of the release of

this opinion, for the sole purpose of reinstating the time allowed to obtain permission

to appeal to the Tennessee Supreme Court in the above styled case.

____________________________________

DAVID G. HAYES, Judge

CONCUR:

______________________________

PAUL G. SUMMERS, Judge

______________________________

JERRY L. SMITH, Judge

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