451 S.W.2d 722 | Tenn. Crim. App. | 1969
OPINION
David Parker appeals from the judgment of the Circuit Court of Carroll County dismissing his Petition for Writ of Habeas Corpus filed under the Post-Conviction Procedure Act of 1967 after an evidentiary hearing. He was represented by court-appointed counsel in this hearing.
The record reflect David Parker was convicted in the Circuit Court of Carroll County on November 4, 1965. He was convicted of committing the offense of murder in the second degree, receiving a sentence of confinement to the State Penitentiary for a period of not less than ten nor more than eighteen years. He was represented in this trial by two attorneys, both court appointed.
Petitioner filed his Petition for Writ of Habeas Corpus on September 6, 1968. On September 13, 1968, the
An evidentiary hearing on the petition and supplemental amended petition was had on September 28, 1968, in the Ciruit Court of Carroll County. In the hearing petitioner testified and in substance related that witnesses were not called in his behalf by his court-appointed attorneys; that there was no motion for a new trial made and no appeal requested by his attorneys; that he asked his attorneys to appeal his conviction; that the trial judge told him he could not file a motion to appeal; that if he did he would deny it; and that his attorneys advised him it would be useless to appeal his conviction. On cross-examination he admitted that he did not know whether witnesses he had claimed his attorneys did not subpoena knew anything about the case. His son, Howard Parker, had furnished him with the names of the witnesses. Howard Parker was called and related that he visited his father in jail and gave him the names of some witnesses he had heard about. Two of these witnesses were called, Eddie P. Edwards and Argo Flake. Both related they knew nothing about the facts of petitioner’s case.
The Attorney General called the trial judge and he emphatically denied telling petitioner he would deny his motion for appeal if he made one, denied telling petitioner he could not appeal and denied telling petitioner he would not grant him an appeal. He further related that
Petitioner’s assignments of error are three.
1. The petitioner was never at any time advised of his constitutional rights, either before, during, or after trial, nor was he ever formally arraigned.
2. The petitioner’s appointed counsel did not file a motion for a new trial or perfect an appeal of the criminal case even though the defendant desired appellate review of the case, nor did anyone advise him he could have the Bill of Exceptions without cost and that counsel was appointed to appeal the case if the appellant so desired.
3. The defendant was not permitted to speak in his own behalf at sentencing, nor was counsel permitted to make any statement in his behalf at that time.
The trial court entered a memorandum and order in which he made a finding of fact and law adverse to petitioner’s contention. In the trial court memorandum and order petitioner’s three assignments of error upon which he relies in this Court were carefully considered by the trial court and found to be meritless. With this we agree.
To summarize petitioner’s contentions, they come down to this question: Was he denied appellate review? Petitioner relies upon Nelms v. State, 219 Tenn. 727, 413 S.W.2d 378 and State ex rel. Green v. Henderson, 220 Tenn. 551, 421 S.W.2d 86, as his authorities to sustain his contention. A review of these reveals to us that there was negligence involved in each cited case which was “State action” and therefore imputable to the State. We do not have that situation here in this case under this record involving these proven facts and circumstances. In order for a denial of appeal to have existed in this case there must have been a denial. There is no denial in this record of defendant’s right to appellate review.
Under the factual situation proven in this record and found to be so by the trial judge, we find: (1) Petitioner was represented by competent, capable attorneys, (a)
The trial court found in the record as a matter of law and fact there was no denial of petitioner’s rights accorded him under our law.
Findings of fact by the trial court are conclusive unless this Court finds the evidence preponderates against the lower court’s judgment. State ex rel. Hall v. Meadows, 215 Tenn. 668, 389 S.W.2d 256; State ex rel. Johnson v. Mainard, 188 Tenn. 501, 221 S.W.2d 531; Gray v. Johnson (6th Cir., 1965), 354 F.2d 986; Bates v. Meadows (6th Cir., 1966), 358 F.2d 674. We do not find the evidence preponderates against his findings.
The burden of proving petitioner’s charges was on the petitioner. State ex rel. Kuntz v. Bomar, 214 Tenn. 500, 381 S.W.2d 290; State ex rel. George v. Bomar, 216 Tenn. 82, 390 S.W.2d 232. He has not carried that burden in this record.
The Attorney General and petitioner both cite
“* * * The facts of this case, that is the case before us, show that petitioner neither desired nor. requested an appeal.”
State ex rel. Doyle, supra, clearly holds that there can be an oral waiver of appeal. The trial judge found as a fact that he (petitioner) orally advised counsel that he did not wish to appeal. Petitioner waited almost four years before making known that he desired an appeal. We have presented here, under the factual situation proven in this record and found by the trial judge, an oral waiver of the right to appeal. There was no unconstitutional denial of that right.
Therefore, the assignments of error are overruled and the judgment of the trial court is affirmed.