Christopher M. Heath v. State of Tennessee
M2016-01906-CCA-R3-PC
Tenn. Crim. App.Aug 7, 2017Background
- Christopher M. Heath was convicted after a jury trial of DUI (fifth offense) and second-offense driving on a revoked license; BAC was .31 and the car was found in a ditch with alcohol containers inside.
- Trial counsel failed to file a notice of appeal; Petitioner later filed pro se motions and then a post-conviction petition alleging ineffective assistance (failure to subpoena/alibi witness Kenneth Parker, failure to advise re: appeal, failure to file motion for new trial).
- Post-conviction counsel subpoenaed Parker unsuccessfully; trial counsel submitted an affidavit describing efforts to secure Parker and admitting he failed to advise Heath of the right to appeal and failed to file a timely motion for new trial.
- Petitioner did not appear or present testimony or live evidence at the post-conviction evidentiary hearing; the only submitted proof included trial counsel’s affidavit and an unserved subpoena return.
- The post-conviction court dismissed the petition under Tenn. Code Ann. § 40-30-110(a) because the petition raised substantial questions of fact as to events in which Petitioner participated and Petitioner did not appear and give testimony.
- This Court waived Petitioner’s untimely notice of appeal but affirmed the dismissal, finding Petitioner failed to meet the clear-and-convincing proof burden and that affidavits alone could not substitute for Petitioner’s testimony.
Issues
| Issue | Heath's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Heath was required to appear and testify at the post-conviction evidentiary hearing under § 40-30-110(a) | The petition did not raise substantial factual issues requiring his testimony, so his presence was not mandatory | Section 40-30-110(a) mandates petitioner appear and testify when petition raises substantial factual questions | Court held Heath’s presence was required and his failure to appear justified dismissal |
| Whether Heath proved ineffective assistance for failing to secure/subpoena alibi witness (Parker) | Counsel’s failure to secure Parker prejudiced defense; Parker would have testified he drove the car | No live testimony or Petitioner testimony was presented to corroborate alibi; trial record contained no evidence of Parker at scene | Court held Heath failed to prove ineffective assistance because he offered no live evidence and did not testify; burden not met |
| Whether trial counsel’s failure to file a motion for new trial was presumptively prejudicial | Failure to file a motion for new trial deprived Heath of post-trial remedies and appellate process | Affidavit alone is insufficient proof; petitioner must show he intended and would have raised issues beyond sufficiency | Court held affidavits inadmissible substitute for live testimony; Heath failed Wallace test and relief denied |
| Whether denial of continuance to secure Parker was an abuse of discretion | Court should have continued to issue capias/material witness order to secure Parker | Petitioner's counsel delayed seeking process; absence of Petitioner at hearing made continuance unnecessary | Court held no abuse of discretion; denial harmless because petition failed for lack of Petitioner’s testimony |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (established two-prong ineffective assistance test)
- Wallace v. State, 121 S.W.3d 652 (Tenn. 2003) (test when failure to file new-trial motion is presumptively prejudicial)
- Henley v. State, 960 S.W.2d 572 (Tenn. 1997) (standard for appellate review of post-conviction factual findings)
- Momon v. State, 18 S.W.3d 152 (Tenn. 1999) (petitioner must prove factual allegations by clear and convincing evidence)
- Keough v. State, 356 S.W.3d 366 (Tenn. 2011) (petition must include full disclosure of factual basis for claims)
- Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975) (competence standard for counsel)