Opinion
C.C.A. No. W1999-01781-CCA-R3-CD.
February 2, 2000.
Appeal from Dyer County, Hon. LEE MOORE, Judge.
AFFIRMED
For the Appellant
Franklin Dan Rickman, pro se.
For the Appellee
Paul G. Summers, Attorney General Reporter, Patricia C. Kussmann, Assistant Attorney General, C. Phillip Bivens, District Attorney General.
OPINION
Petitioner Franklin Dan Rickman, pro se, appeals as of right from the dismissal of his post-conviction by the Dyer County Circuit Court. At the post-conviction hearing Petitioner argued that he received ineffective assistance of counsel when he entered a guilty plea to one count theft, more than $1,000, and one count of felony escape. Petitioner also alleged sentencing errors. The post-conviction court denied the petition in a written order. On appeal, Petitioner now argues (1) the trial court erred in its determination that Petitioner's trial counsel was effective; (2) the trial court erred when it continued Petitioner's post-conviction hearing; (3) the trial court erred in its determination that Petitioner waived all issues in the post-conviction petition that were not raised in the post-conviction proceeding; and (4) petitioner received ineffective assistance of counsel in the post-conviction process. Because the record in this case does not contain any transcripts of the post-conviction proceedings, we are precluded from reviewing the judgment of the post-conviction court. In addition, Petitioner's claim that his post-conviction counsel was ineffective is not a valid ground for post-conviction relief. As a result, we affirm the post-conviction court's denial of the petition.
I. Procedural History
Petitioner stole a pick-up truck, and while incarcerated for the theft, on February 3, 1998, he escaped from the Dyer County Jail. He was subsequently recaptured, and on February 9, 1998, Petitioner was indicted by a Dyer County grand jury on one count of theft, more than $1,000, and one count felony escape. On February 27, 1998, he entered a guilty plea to both charges. The trial court sentenced Petitioner, as a Range II offender, to four (4) years for the theft, and (2) years for the escape. Petitioner was on probation for two prior convictions at the time that he committed the crimes at issue, and the trial court revoked Petitioner's probation on both priors. Petitioner's effective sentence for the two priors and the two new crimes was seven (7) years; the two prior sentences were four (4) years and (1) year, to be served consecutively, and Petitioner's escape sentence was to be served consecutive to all sentences.
Petitioner filed a pro se petition for post-conviction relief on June 24, 1998. Petitioner raised five grounds for relief: (a) unlawfully induced guilty plea; (b) involuntarily entered guilty plea; (c) coerced confession; (d) confession based on violation of the privilege against self-incrimination; and (e) ineffective assistance of counsel. Counsel was appointed for Petitioner, and the post conviction hearing was scheduled for September 24th, 1998. On that day, however, Petitioner's trial counsel failed to appear as a witness, and the hearing was continued to October 29, 1998. After the hearing on October 29, the post-conviction court denied the petition in a written order on November 10, 1998.
Petitioner filed a pro se notice of appeal on December 10, 1998. In early May, 1999, Petitioner appears to have filed simultaneous pro se motions in the Dyer County Circuit Court and this Court requesting the appointment of counsel to assist with his post-conviction appeal. On May 5, 1999, an order was entered by the Circuit Court confirming that Petitioner's original post-conviction counsel would represent Petitioner on appeal. Because Petitioner's pro se motion in this Court requested an extension of time to file a brief, or in the alternative the appointment of counsel for the appeal, on May 5, 1999, this Court granted the extension of time and denied the appointment of counsel. Post-conviction counsel subsequently filed a motion to withdraw, and was relieved of any duty regarding the appeal by order of this Court on July 14, 1999.
II. Post-conviction hearing
The post-conviction hearing occurred on October 29, 1998. The post-conviction court denied the petition in a written order on November 10, 1998. In the order the court summarized the case and the proof:
Petitioner in his petition for post-conviction relief alleged several different grounds for relief. At the time of the hearing, however, he indicated that he was pursuing only his claim of ineffective assistance of counsel and some problem he was having with the paperwork regarding his sentence. . . . At the post-conviction hearing, Petitioner indicated that when these cases started he was being represented by Mr. Tod Taylor (sic) of the Public Defender's office. He indicated that [trial counsel], Public Defender, came to see him on the morning of his trial. He stated that [trial counsel] came to see him on the morning the case was set for trial on February 27, 1998. It was clear from the proof that February 27, 1998, was the date scheduled for an appearance for Petitioner. He stated that no one else came to talk to him. Petitioner testified that he told the Public Defender that he wanted to go to trial. He indicated that [trial counsel], his attorney, told him that he could do nothing for him at trial. He stated that [trial counsel] told him he was looking at a 12 year sentence. He indicated that he told [trial counsel] he wanted another attorney to represent him, but [trial counsel] indicated that he would not get anyone else. He also claimed that [trial counsel] had alcohol on his breath that morning and his eyes were dilated as if he had been smoking crack cocaine. Later on the same day, he indicated that he settled his case for an effective seven year sentence at 35%. He stated, however, that the documents showed an effective six year sentence at 35%. He also admitted having had a probation violation at the same time.
He testified that had he gone to trial he was going to subpoena Investigator Jim Porter as a witness. He did not indicate, however, how Investigator Porter's testimony would have helped his case. He also wanted to ask for a bond reduction but was advised by the Public Defender that the court might increase his bond.
After his guilty plea he was sent to a correctional facility in Memphis.
He indicated on cross-examination that he first appeared for arraignment on February 17, 1998. He entered his guilty plea on February 27, 1998. He identified his signature on the form entitled "Plea of Guilty and Waivers of Jury Trial and Appeal" form for Case Nos. C98-54 and C98-55. He identified all the hand writing on the back of this particular form. He indicated that he pleaded guilty to five years and two years at 35%. He stated that Nashville could not calculate his time with the record showing difference (sic) sentences. When he talked to his counselor at Turney Center, he found out about the conflicting sentences.
Petitioner indicated that he was not fighting the escape charge but was fighting the theft over $1,000.00 and serving as a multiple offender. He did not think he should be considered a Range II offender. He, however, did admit having had two prior Class E felony convictions. He admitted that he was a Range II offender from these prior convictions. He stated again that his complaint was that he wanted to go to trial. Petitioner did indicate that he had read the transcript of his guilty plea. He did admit that when [trial counsel] told him that he would be leaving Dyersburg immediately, he was satisfied and wanted to pursue the plea. He seemed to have a feeling that [trial counsel] worked for the District Attorney General's office and that they paid him.
When Petitioner was cross-examined about statements that he made in the "transcript of guilty plea and sentencing," he stated that on the day that he entered his plea that he was not telling the presiding judge the truth. He was not pursuing other issues that he had mentioned in his confession including an allegation of coercion of the confession (sic). He was simply proceeding with his claim of ineffective assistance of counsel. He did admit that he had a conversation with [trial counsel] on February 27, 1998, and told [trial counsel] that he wanted to get out of Dyersburg as soon as possible. On the day of the guilty plea, he thought he was getting a five year and a two year sentences for an effective seven year sentence. Petitioner rested his case at the end of his testimony.
The State introduced former Public Defender, [trial counsel]. [Trial counsel] was present at the guilty plea hearing on February 27, 1998. He indicated that Petitioner plead guilty and was sentenced to four years on the Theft Over $1,000.00 charge as a Range II offender. He indicated that this sentence was to run concurrently with sentences and probation revocations in Dyer and Lake counties. He also plead guilty in Case No. C98-55 and was sentenced to two years as a Range II offender. This sentence was to run consecutively with all prior sentences. [Trial counsel's] notes showed that he had a conversation with the Petitioner on February 26, 1998. The only question that Petitioner had at that time was how quickly he could get to the penitentiary. He wanted [trial counsel] to talk to the District Attorney General and the Sheriff about getting him out of Dyersburg. [Trial counsel] indicated that he did not recall the Petitioner ever requesting a trial or being dissatisfied with him. He testified that Petitioner got the minimum sentence as a Range II offender in both cases and the probation violations ran concurrently with his first sentence.
The post-conviction court disposed of the petition as follows:
CONCLUSION
The record in this case, including the transcript of the guilty plea and the sentencing hearing held on February 27, 1998, make it quite clear that Petitioner under oath answered questions indicating that he was aware of the probation violations and revocations. Petitioner indicated under oath that he had discussed these matters with [trial counsel]. He indicated that [trial counsel] had answered all of his questions. He indicated that he was not being forced or coerced into entering a plea of guilty but that he was doing so of his own free will. He admitted signing the "Plea of Guilty and Waivers of Jury Trial and Appeal." He admitted that his attorney, [trial counsel], had done everything he had asked him to do and that he was satisfied with the way he had been represented.
[Trial counsel] is an experienced criminal defense attorney. We simply have a situation here where the Petitioner now disputes his sworn testimony given on February 27, 1998. Under the circumstances, the Court does not feel that the Petitioner has carried his burden of proof in proving the necessary elements by a preponderance of the evidence. Petitioner has failed to show the counsel's performance was deficient or that he was prejudiced to the extent that there was a reasonable probability that, but for counsel's unprofessional errors, the result of a trial would have been different. The Petitioner has also failed to establish by a preponderance of the evidence that "but for his counsel's errors, he would not have plead guilty and would have insisted on going to trial. (sic)
The Petitioner has failed to show by a preponderance of the evidence that he did not understand what he was doing when he was pleading guilty. In fact, the transcript of the guilty plea and sentencing hearing shows quite clearly that the Petitioner knew very well what he was doing in entering his plea and that the plea was made knowingly, voluntarily, and understandably. The proof also shows that at the time he was satisfied completely with the manner in which he had been represented by the Public Defender, [trial counsel].
Defendant's petition for post-conviction relief is denied.
III. Analysis
Petitioner's request for post-conviction relief is governed by the Post Conviction Procedure Act of 1995. See Tenn. Code Ann. § 40-30-201, Compiler's Notes (1997).
In order to obtain post-conviction relief a petitioner must allege that his conviction or sentence is void or voidable because of an abridgement of a constitutional right. Id. § 40-30-203. If granted an evidentiary hearing, the petitioner has the burden of proving the allegations by clear and convincing evidence. Id. § 40-30-210(f). The trial judge's findings of fact and conclusions of law in a post-conviction proceeding are afforded the weight of a jury verdict. Black v. State, 794 S.W.2d 752, 755 (Tenn.Crim.App. 1990). Consequently, this Court is bound the trial judge's findings of fact unless we conclude that the evidence preponderates against the judgment entered by the post-conviction court. Caruthers v. State, 814 S.W.2d 64, 67 (Tenn.Crim.App. 1991).
This standard of review, however, is conditioned upon the ability of this Court to meaningfully review the issues presented on appeal. Because a post-conviction appeal is governed by the Tennessee Rules of Appellate Procedure, see Tenn. Code Ann. § 40-30-216 (1997), when a party seeks appellate review of an issue, the party has a duty to prepare a record which conveys a fair, accurate and complete account of what transpired with respect to the issue on appeal. Tenn.R.App.P. 24(b). State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)). When the record is incomplete, and does not contain a transcript of the proceedings relevant to the issue presented for review, or portions of the record upon which the party relies, an appellate court is precluded from considering the issue. Id. at 561 (citing State v. Roberts, 755 S.W.2d 833, 836 (Tenn.Crim.App. 1988)). Rather, the appeals court must conclusively presume the ruling of the trial court on the issue was correct. State v. Griffis, 964 S.W.2d 577, 593 (Tenn.Crim.App. 1997); State v. Richardson, 875 S.W.2d 671, 675 (Tenn.Crim.App. 1993).
Here, we have no transcript of the initial post-conviction proceeding on September 24, 1998, and we do not have a transcript of the post-conviction hearing on October 29, 1998. As a result, we are precluded from considering three of the issues that are now raised by Petitioner. We must conclusively presume that the trial court correctly determined Petitioner's trial counsel to be effective; that the trial court did not err when it continued Petitioner's post-conviction hearing; and that the trial court did not err when it ruled that Petitioner waived all issues in the post-conviction petition that were not raised in the post-conviction proceeding. While this court has often given pro se litigants more leeway in complying with procedural rules, we cannot bend the rules until they break. Petitioner has not carried his burden, and we may not address the issues.
Finally, Petitioner's last argument is that his post-conviction counsel was ineffective. Relief is only available in a post-conviction proceeding if the petitioner's conviction or sentence is void or voidable because of an abridgement of a constitutional right. Tenn. Code Ann. § 40-30-203 (1997). There is no constitutional right to counsel in a post conviction proceeding, and thus there is no constitutional right to an effective counsel in a post-conviction proceeding. House v. State, 911 S.W.2d 705, 712 (Tenn. 1995). As a result, Petitioner's claim does not rise to a constitutional level, and is not a cognizable ground for post-conviction relief.
III. Conclusion
We thus affirm the post-conviction court's denial of the petition. We are first precluded from reviewing the judgment of the post-conviction court because there are no transcripts of the post-conviction proceedings. Second, Petitioner's claim of ineffective assistance of post-conviction counsel is not a cognizable ground for post-conviction relief.
_____________________________________ THOMAS T. WOODALL, Judge