Opinion
No. E2008-00084-CCA-R3-PC.
Assigned on Briefs December 16, 2008.
Filed March 17, 2010.
Direct Appeal from the Criminal Court for Knox County; No. 84850; Kenneth F. Irvine, Jr., Judge.
Judgment of the Criminal Court Affirmed.
Albert J. Newman, Jr., Knoxville, Tennessee, the appellant, Chad Howard Brooks.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Randall E. Nichols, District Attorney General; Leon Franks, Assistant District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, J., delivered the opinion of the court, in which Joseph M. Tipton, P.J., and Norma McGee Ogle, J., joined.
OPINION
Petitioner, Chad Howard Brooks, appeals the post-conviction court's dismissal of his post-conviction petition without an evidentiary hearing. After a thorough review we affirm the judgment of the post-conviction court.
I. Background
According to the transcript of the guilty plea submission hearing which is included in the record, Petitioner entered pleas of guilty on August 9, 2005, to aggravated assault, a Class C felony, and aggravated kidnapping, a Class B felony. Petitioner was sentenced as a Range I, standard offender to concurrent sentences of three years for his aggravated assault conviction and ten years for his aggravated kidnapping conviction, for an effective sentence of ten years. It appears that no direct appeal was taken from this determination.
Petitioner filed his first pro se petition for post-conviction relief on September 12, 2005. A copy of this petition is not included in the record. At some point after he filed his first post-conviction petition, Petitioner wrote his counsel as follows:
This concerns me coming back to court on my charges. I've thought it over and do not want to bring it back to court. So if you could take me off the docket I'd thank you. I don't think I could get any time dropped off my sentence anyway, but I thank you always.
A hearing on this petition was held on November 17, 2005, a transcript of which is included in the record. During the hearing, the following brief colloquy occurred:
[PETITIONER'S COUNSEL]: Your Honor, [Petitioner] has written me a letter asking that the Court dismiss his post-conviction petition.
[THE STATE]: Could I see that? I (simultaneous speech).
[PETITIONER'S COUNSEL]: Your Honor, I would put on the record that I have advised [Petitioner] of all of the ramifications. He understands that he cannot refile, your Honor, and we'd ask the Court to dismiss it.
THE COURT: All right. Dismissed.
[THE STATE]: So he's dismissing his post-conviction petition?
[PETITIONER'S COUNSEL]: Uh-huh.
[THE STATE]: Works for me.
The record does not contain the post-conviction court's order disposing of the post-conviction petition although we glean from the record that one was filed on November 18, 2005.
Within one year of the date of the entry of his pleas of guilty, Petitioner filed a second pro se petition for post-conviction relief on June 27, 2006, alleging, among other grounds for relief, the ineffective assistance of counsel. Counsel was appointed, and the post-conviction court conducted a hearing on Petitioner's petition on December 14, 2007. At the hearing, Petitioner's counsel acknowledged that Petitioner's first post-conviction petition had been dismissed with prejudiced and stated that Petitioner "was also aware of that." Petitioner argued, however, that under Tennessee Code Annotated section 40-30-109(c), he had the right to voluntarily withdraw his post-conviction petition without prejudicing his rights to refile. The post-conviction court found that Petitioner:
voluntarily dismissed [his first post-conviction petition] and understood at the time it was dismissed with prejudice. Took no effort to challenge that ruling, and it's final. I don't think it is appropriate for me to come in and change it. So this petition you filed is going to be dismissed. . . .
On appeal, Petitioner challenges the post-conviction court's summary dismissal of his second petition for post-conviction relief. Relying on Cazes v. State, 980 S.W.2d 364 (Tenn. 1998), Petitioner argues that although his second post-conviction petition contains no new grounds for post-conviction relief, the State failed to show that the filing of his second post-conviction petition was in bad faith or constituted an abuse of the post-conviction process. The State acknowledges that pursuant to Tennessee Code Annotated section 40-30-109(c), a petitioner can withdraw a petition for post-conviction relief at any time before a hearing without prejudice to any rights to refile another petition within the one (1) year statute of limitations. T.C.A. § 40-30-109(c) The State contends, however, that Petitioner's first post-conviction petition was dismissed with prejudice at his request. The State submits that the correspondence between Petitioner and his counsel indicated Petitioner's desire to abandon his right to post-conviction relief.
Petitioner's argument based on the State's failure to show that the filing of his second post-conviction petition was not an abuse of power is misplaced. The case in Cazes was governed by the now repealed Post-Conviction Act, Tennessee Code Annotated sections 40-30-101 — 124 (1990). Cazes, 980 S.W.2d at 365. Under prior law, a trial court could permit a petitioner to withdraw a post-conviction petition at any time prior to entry of a judgment. See T.C.A. § 40-30-115(a) (1990) (repealed). Therefore, "the permitted withdrawal of a post-conviction petition [did] not necessarily preclude the later filing of another petition for post-conviction relief" within the longer three year statute of limitations then in effect. Cazes, 980 S.W.2d at 365. In Cazes, the trial court permitted the petitioner to voluntarily withdraw two post-conviction petitions. When the petitioner requested permission to withdraw his third post-conviction petition, the trial court instead dismissed the petition with prejudice. Id. Upon review, our supreme court held that:
the dismissal with prejudice of a post-conviction petition will bar any subsequent petition for post-conviction relief predicated on grounds in existence prior to the dismissal. The rationale is simple: post-conviction relief is a statutory remedy offered by the legislature; it is not a constitutional right. Those who abuse the process cannot be heard to complain when access to the remedy is denied.
Id. at 365.
Although not applicable to the case before it, the Cazes court observed, however, that under the 1995 Post-Conviction Procedure Act, "a petitioner may withdraw a petition at any time prior to the hearing without prejudice to any rights to refile" within the shorter one-year statute of limitations" which provision "appear[ed] to preclude the issue in [Cazes] from occurring under the new law." Id. at 365 n. 2.
In State v. Christopher Stacy Long, No. E1999-01205-CCA-R3-CD, 2000 WL 794357 (Tenn. Crim. App., at Knoxville, June 21, 2000),no perm. to appeal filed, the petitioner filed his first petition for post-conviction relief on June 18, 1999. Id., 2000 WL 794357, at *1. Thereafter, petitioner's counsel filed a motion to dismiss stating that "`the Petitioner has reviewed with appointed counsel the basis for the petition which he has filedpro se, and concluded, despite his earlier conclusion to the contrary, that the petition lacks merit.'" Id. Within the one-year statute of limitations, the petitioner filed a second post-conviction petition which was dismissed by the post-conviction court upon finding that "the petitioner has filed the exact petition that he filed [previously]." Id.
A panel of this Court reversed the post-conviction's dismissal of the second post-conviction petition observing that:
[t]he trial court's order dismissing the second petition makes absolutely no mention of whether the first petition was dismissed with prejudice. Further, the trial court's order contains no language from which it can be inferred that the first petition was dismissed with prejudice. Any conclusion about whether the first petition was dismissed with prejudice would be pure speculation.
Id. We concluded:
[f]rom the record, it appears that the first petition was dismissed prior to an evidentiary hearing. The State does not argue otherwise. Under the statute as interpreted in Cazes, [Cazes, 980 S.W.2d at 365 n. 2,] Petitioner withdrew his petition without prejudice to any rights to refile, as long as the refiling was done within the original period of the statute of limitations.
Id. at *2.
Unlike the situation presented in Christopher Stacy Long, however, the record in the case sub judice reflects that Petitioner filed his first post-conviction petition and then informed his counsel that he did not wish to pursue his post-conviction claims. The trial court's order dismissing the first post-conviction petition is not in the record. It is clear from the transcript of the hearing conducted on December 14, 2007, and the post-conviction court's order dismissing Petitioner's second post-conviction petition, that his first post-conviction petition was dismissed with prejudice. The following colloquy occurred in open court prior to dismissal of the second petition:
THE COURT: [Petitioner's counsel], do you agree that when [the first post-conviction petition] was dismissed, it was done with prejudice?
[PETITIONER'S COUNSEL]: Oh, yeah, your Honor. [Petitioner] was aware of that. Your Honor, I just hate for him to have made that decision, you know, kind of quickly because he didn't want to really be transported back and forth. But then he got back to the penitentiary and really thought it over, your Honor. And I talk[ed] to him, I said, Well, you know file another one. Maybe the Court might — you know what I mean? — give you a chance to have a hearing. So he — if the Court dismisses it, he'll understand; if the Court grants him a hearing, he'll be grateful.
THE COURT: [Petitioner], your post-conviction rights are pretty important rights. But you have — what we have in this case is a final order that went down. It's not been appealed and not been challenged where it was dismissed with prejudice. And I think that's going to be controlling in this case, that you had that opportunity and, for your own reasons, decided you were going to waive that right. And certainly recognize that almost any right can be waived if you do it with — you, know knowingly and voluntarily. And you did it with the assistance of counsel. You did it in open court with it being explained to you.
An accused may waive his right to post-conviction review.Serrano v. State, 133 S.W.3d 599, 604 (Tenn. 2004);see also Pike v. State, 164 S.W.3d 257, 262 (Tenn. 2005) (observing that "courts have long recognized the right of competent defendants to make decisions concerning their available legal remedies"). In Serrano, our supreme court observed:
[a]s with the right to appeal, there is no constitutional duty to provide post-conviction relief procedures. Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992). Rather, the right to post-conviction relief is created by statute. See T.C.A. §§ 40-30-102, -103, -104 (2003). "When there is no constitutional or statutory mandate, and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy." Schick v. United States, 195 U.S. 65, 72, 24 S.Ct. 826 (1904). Because we are unable to find a mandate otherwise, we conclude that a petitioner may also waive the right to post-conviction relief.
Serrano, 133 S.W.3d at 604.
Petitioner did not appeal the trial court's order dismissing his first post-conviction petition with prejudice, and the trial court's order became final prior to the filing of his second pro se post-conviction petition. Absent the first order of dismissal being in the record, we must presume that it was with prejudice based on what is in the record regarding dismissal of the second pro se petition for post-conviction relief. Based on our review, we conclude that the post-conviction court did not err in summarily dismissing Petitioner's second post-conviction petition. Petitioner is not entitled to relief on this issue.
CONCLUSION
After review, we affirm the judgment of the post-conviction court.