The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1998 SESSION
December 8, 1998
Cecil W. Crowson
Appellate Court Clerk
JOE L. UTLEY, )
) C.C.A. No. 01C01-9709-CR-00428
Appellant, )
) Davidson County
v. )
) Honorable Seth Norman, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
William A. Lane John Knox Walkup
3236 Dilton Mankin Road Attorney General & Reporter
Murfreesboro, TN 37127 425 Fifth Avenue, North
Nashville, TN 37243-0493
Timothy Behan
Assistant Attorney General
425 Fifth Avenue, North
Nashville, TN 37243-0493
Victor S. (Torry) Johnson, III
District Attorney General
222 Second Avenue, North
Suite 500
Nashville, TN 37201-1649
Thomas B. Thurman
Deputy District Attorney General
222 Second Avenue, North
Suite 500
Nashville, TN 37201-1649
OPINION FILED: ________________________________
REMANDED
L. T. LAFFERTY, SENIOR JUDGE
OPINION
The appellant, Joe L. Utley, appeals as of right from a judgment of the Davidson
County Criminal Court denying his petition for post-conviction relief. The petitioner alleges
that trial and appellate counsel rendered ineffective assistance in several areas. After a
through review of the record, we REMAND to the trial court with instructions to enter a
findings of fact and conclusions of law.
BACKGROUND
The petitioner was found guilty, by a Davidson County jury, of felony murder and
especially aggravated robbery. The petitioner received a life sentence and a concurrent
twenty-year sentence. This Court affirmed the appellant’s convictions on direct appeal.
State v. Utley, 928 S.W.2d 448 (Tenn. Crim. App. 1995), per. app. denied (Tenn. 1996).
The petitioner and three others, Derrick Carey, Eric Brown, and Donald Walton,
robbed the Las Palmas Restaurant in Nashville, taking $500. An employee, Raphael
Magna, was shot when he did not answer as to where the safe was located. A co-
defendant yelled “Five-O,” meaning the police were arriving. Officer Dennis Hamm of the
Nashville Police Department arrested the petitioner who was running behind a building two
hundred yards from the restaurant. Because the petitioner fit the description of one of the
suspects, he was taken back to the restaurant where two patrons identified him from his
build and clothing.
At the time of his arrest, the petitioner informed Officer Hamm he had just gotten off
a bus and was looking for a phone to call his father. However, John Cannon, Metro Transit
Authority, testified no buses ran at that time in the vicinity of Harding and Antioch. The
accomplice, Eric Brown, testified for the state and related how all four men planned to rob
Applebee’s Restaurant. However, due to heavy police presence, the four men selected
Las Palmas instead. The four men had stolen a car to use in the robbery and the petitioner
was to remain in the car as the driver, but Brown saw him in the rear of the restaurant.
Brown fired a shot to get everyone’s attention and when he heard the police were coming,
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both he and the petitioner exited through the back door.
POST-CONVICTION PROCEEDINGS
Upon the petitioner filing a petition for post-conviction relief, the trial court entered
a preliminary order appointing counsel to represent the petitioner’s claims of ineffective
assistance of counsel at the trial and appellate levels. As to trial counsel, the petitioner
raises two issues: (1) trial counsel failed to object to the charge on “reasonable doubt” and
(2) trial counsel failed to obtain a copy of the transcript of the juvenile court transfer
hearing. As to appellate counsel, the petitioner complains appellate counsel (1) failed to
provide a copy of the transcript of the motion to suppress the identification of the defendant
by two state witnesses for appellate review and (2) failed to allege a sufficiency of evidence
claim and the unconstitutionality of Tennessee’s felony murder statute.
This Court reviews claims of ineffective assistance of counsel under the standards
of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) wherein
the burden is on the petitioner to establish (1) that counsel’s performance was deficient,
and (2) that, but for the deficiency, there is a reasonable probability that the result would
have been different. Also, in Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our
Supreme Court held that attorneys in Tennessee should be held to the general standard
of whether the services rendered were within the range of competence demanded of
attorneys in criminal cases.
The Post-Conviction Procedure Act requires trial judges to enter findings of fact and
conclusions of law on all issues presented. Tenn. Code Ann. § 40-30-211(b). However,
in the instant case, there are no findings for this Court to review. When a trial court enters
findings of fact and conclusions of law, the trial court’s decisions are conclusive on appeal
unless the evidence preponderates otherwise. Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim. App. 1994) per. app.
dismissed (Tenn. 1995).
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In the instant case, there appears to be some confusion as to whether the petitioner
talked to appellate counsel about what issues were to be presented for appeal. Also,
appellate counsel admitted he may have been deficient in failing to provide a transcript of
the motion to suppress the identification of the petitioner for appellate review.
This case, therefore, is remanded for the trial court to set forth written findings of
fact and conclusions of law, pursuant to Tenn. Code Ann. § 40-30-211(b) regarding the
petitioner’s claims of ineffective assistance of counsel.
________________________________________
L. T. LAFFERTY, SENIOR JUDGE
CONCUR:
___________________________________
PAUL G. SUMMERS, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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