693 S.W.2d 921 | Tenn. Crim. App. | 1985
OPINION
Michael T. Garrard appeals the dismissal of a petition for post-conviction relief without an evidentiary hearing by the Honorable Sam E. Boaz, sitting by designation in the Montgomery Criminal Court. The appellant was convicted of rape in 1975 and sentenced to serve seventy (70) years imprisonment. His conviction was affirmed on appeal.
This is defendant’s fourth petition for post-conviction relief. Mr. Garrard filed his first petition on September 5, 1978. Relief was denied after an evidentiary hearing and no appeal was taken. The second petition was filed October 10, 1980. Relief was denied, appeal was taken, then dropped, apparently because appellant filed a civil action in Federal District Court
There are nine issues presented for review on this appeal. Issues 1 through 3 contend there was error in the method of designation of Judge Boaz by the Chief Justice, and because the trial judge was allowed to preside over these proceedings when there was no allegation of incompetent trial counsel. Issue 4 alleges that counsel appointed to represent appellant at the post-conviction proceedings was incompetent. Issues 5 through 9 allege error in the dismissal of the petition, and dismissal of appointed counsel, without an evidentia-ry hearing.
T.C.A. § 40-30-103 provides for designation of a judge to preside over post-conviction hearings. The Chief Justice designates any judge, “except the judge who presided at the criminal trial in which the conviction occurred, unless the issue of incompetent trial counsel is raised.” The Post-Conviction Procedure Act is a wholly statutory procedure. The designation of a hearing judge is purely an administrative function and nothing more. There was no constitutional deprivation.
There is no constitutional right to counsel at post-conviction proceedings. Legislation provides for appointment of counsel where a petition is inartfully drawn or inarticulate in stating a claim. See T.C.A. § 40-30-107. There was no constitutional deprivation.
In his order dismissing the post-conviction petition the trial court stated his familiarity with the case, that he had reviewed the petition, as well as all previous petitions and appellate records, that the findings of fact contained in his memorandum were made without the necessity of an evidentiary hearing because they were matters of official court record. He concluded that all matters raised in the petition had previously been determined. Where there is evidence in the record to sustain the findings of fact by a trial court they are conclusive unless the evidence preponderates against the trial court’s judgment. See Clenny v. State, 576 S.W.2d 12 (Tenn.Cr.App.1978), cert. denied 441 U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d 1050 (1979).
The primary ground presented in the petition dismissed below concerns the charging of parole possibilities at appellant’s trial in accordance with T.C.A. § 40-2707 (T.C.A. § 40-20-107), as the statute existed at that time.
In a split decision in Farris v. State, 535 S.W.2d 608, 612 (Tenn.1976), a majority of the Supreme Court held that Section 2 of Chapter 163 of the Public Acts of 1973, was void because the questioned section of the Act was broader than its caption and for that reason violated Article 2, Sec. 17, of the Constitution of Tennessee. Farris did
We conclude that the appellant was not entitled to post-conviction relief in this case and affirm the judgment of the trial court.
. Garrard v. State, Montgomery County, No. 15335, Tenn.Cr.App. Nashville, September, 1976; cert. denied 11/1/76, per curiam.
. Garrard v. Gasaway, et al. No. 82-3050 (M.D.Tenn.1982).
. Garrard v. State, Montgomery County, No. 82 — 197—III, Tenn.Cr.App. filed April 6, 1983, at Nashville.