Gibson v. StateGibson v. State
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The appellant, David L. Gibson, appeals the denial of his petition for postconviction 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, 1996 WL 29313 (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;
(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
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 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
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,
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a
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.
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 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 felly 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 hedid 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. 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.
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, 80 L.Ed.2d 674 (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. 1989), cert. denied, 493 U.S. 874, 110 S.Ct. 211, 107 L.Ed.2d 164 (1989).
In the case at bar, the post-conviction court found that the appellant failed to
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.
PAUL G. SUMMERS, Judge, JERRY L. SMITH, Judge, concur.
Notes
. 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 again. At trial, the appellant admitted that he shot Ms. Tant because she had been allegedly having an affair with Tim Craig and had subsequently remarried Doug Tant.
. But see Miles v. State, No. 03C01-9701-CC-00029, 1997 WL 607504 (Tenn. Crim. App. at Knoxville, Oct. 3, 1997); Luster v. State, No. 02C01-9409-CR-00205, 1995 WL 422798 (Tenn. Crim. App. At Jackson, July 19, 1995) (permitting post-conviction and direct appeals to proceed simultaneously).