Black v. State

• Decision Date: 11 April 1990
• Docket Number: No. C,C
• Citation: 794 S.W.2d 752
• Parties: William Anthony BLACK, Appellant, v. STATE of Tennessee, Appellee. C.A. 89-270-III.
• Court: Tennessee Court of Criminal Appeals

Page 752

794 S.W.2d 752

William Anthony BLACK, Appellant, v. STATE of Tennessee, Appellee.

No. C.C.A. 89-270-III.

Court of Criminal Appeals of Tennessee at Nashville.

April 11, 1990.

Permission to Appeal Denied by

Supreme Court July 2, 1990.

Thomas H. Ware, Nashville, for appellant.

Charles W. Burson, Atty. Gen. & Reporter, Linda Ann Hammond, Asst. Atty. Gen., and D. Paul DeWitt, Asst. Dist. Atty. Gen., Nashville, for appellee.

OPINION

JONES, Judge.

This is an appeal as of right from the judgment of the trial court denying post-conviction relief following an evidentiary hearing.

The appellant was convicted of rebellion with the intent to escape. He was subsequently sentenced to life in the Department of Correction. This Court affirmed his conviction, ¹ and the Supreme Court denied his application for permission to appeal. ² He entered a plea of guilty to the offense of attempted escape, which arose out of the same occurrence.

On May 2, 1988, the appellant filed a petition for post-conviction relief with the clerk of the trial court. An amended petition, which was adopted by counsel, was filed in the cause on October 31, 1988. The trial judge dismissed the petition following an evidentiary hearing.

ISSUES PRESENTED FOR REVIEW

The appellant raises four issues for our review. He contends that (a) Tenn.Code Ann. Sec. 39-5-712, which proscribes the offense of which the appellant stands convicted, is unconstitutional, (b) his constitutional right not to be placed in jeopardy twice for the same offense was violated, (c) the evidence was insufficient to support his conviction, and (d) his constitutional right to the effective assistance of counsel was violated.

STANDARD OF APPELLATE REVIEW

When the petitioner in a post-conviction proceeding is granted an evidentiary hearing to ventilate the grounds raised in his petition, the trial judge's findings of fact and conclusions of law are afforded the weight of a jury verdict. Consequently, this Court is bound by the trial judge's findings of fact unless we conclude that the evidence contained in the record preponderates against the judgment entered in the cause. ³

Where, as here, the petitioner seeks to vitiate a conviction on the ground counsel was ineffective in his representation, the petitioner must establish by a preponderance of the evidence (a) the services rendered or advice given by counsel fell below "the range of competence demanded of attorneys in criminal cases", ⁴ and (b) the unprofessional conduct or errors of counsel "actually had an adverse effect on the defense". ⁵ If the petitioner fails to establish either factor, he is not entitled to relief on this ground. ⁶

Since the trial judge found the appellant failed to establish that he was entitled to post-conviction relief, we review the record for the purpose of determining whether the trial court's findings of fact preponderate against the judgment entered by the trial judge. ⁷ In doing so we are bound by certain well-established rules of appellate review. First, this Court cannot reweigh or reevaluate the evidence; nor can we substitute our inferences for those drawn by the trial judge. Second, questions concerning the credibility of the witnesses, the weight and value to be given their testimony, and the factual issues raised by the evidence are resolved by the trial judge, not this Court. Third, the appellant has the burden in this Court of illustrating why the evidence contained in the record preponderates against the judgment entered by the trial judge. With these rules in mind, we will proceed to consider the merits of the appellant's contentions.

CONSTITUTIONALITY OF TENN.CODE ANN. Sec. 39-5-712

The appellant contends that Tenn.Code Ann. Sec. 39-5-712, the statute which proscribes the offense of rebellion, is unconstitutional because it embraces more than one subject. The trial court concluded that this ground was waived when it was not raised as part of the appellant's appeal as of right following his conviction.

The opinion of this Court, ⁸ affirming the appellant's conviction, reflects that the appellant raised the constitutionality of this statute as an issue on direct appeal. ⁹ In that appeal, the appellant contended that the statute was unconstitutionally vague and the statute did not relate to any legitimate end of government. The appellant did not attack the constitutionality of this statute on the ground advanced in this proceeding.

A ground for relief is deemed to have been waived when "the petitioner knowingly and understandingly failed to present it for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented." ¹⁰ There is a statutory presumption, rebuttable in nature, that a ground for relief not raised in a prior proceeding was waived by the petitioner. ¹¹

The petition, as amended, does not allege a legal excuse as to why the mandate of Art. II, Sec. 17 was not advanced in support of the appellant's theory on direct appeal. Also, neither the appellant nor the appointed attorney was questioned about this ground during the evidentiary hearing. Consequently, there is no evidence contained in the record which addresses the question of waiver.

In his brief, the appellant states: "... appellant would show unto the Court that the 'waiver' of this averment was not a voluntary, knowing and intelligent waiver of his rights, but is a further illustrative showing of his contention in averment IV herein, that being he was denied effective assistance of counsel, both at trial, and on his direct appeal." The fallacy of the argument is two-fold. First, as previously indicated, there is no evidence in the record to support this argument. Second, the record is void of evidence that the services rendered by counsel in the appellate court fell below the "range of competence demanded of attorneys in criminal cases." ¹² Also, the appellant has failed to illustrate how the failure to advance this particular argument enured to his prejudice. ¹³

Contrary to the appellant's contention, the statute does not violate Art. II, Sec. 17. Simply stated, the statute proscribes a rebellion with the intent to (a) kill the warden, (b) kill any other prison official or officer, or (c) escape. A statute which recites that the offense proscribed can be committed in different ways is not unconstitutional.

This issue is without merit.

DOUBLE JEOPARDY VIOLATION

The appellant contends that his convictions for the offense of rebellion with the intent to escape and an attempt to escape violates the Double Jeopardy Clause contained in the United States and Tennessee Constitutions. The appellant candidly admits in his brief that this ground was not raised in the trial court or in his appeal as of right following his conviction. The trial judge properly found that this ground had been previously waived.

We parenthetically note that the appellant's convictions for rebellion with the intent to escape and an attempt to escape do not violate the double jeopardy provisions of either the United States or Tennessee Constitutions. The offense of attempted escape is not a lesser included offense of rebellion with the intent to escape.

This issue is without merit.

INSUFFICIENCY OF THE CONVICTING EVIDENCE

The appellant contends that the evidence adduced during his trial was insufficient to sustain his conviction. He concedes that this issue was not raised in his appeal as of right following his conviction. For this reason, the trial judge found that the appellant had waived this ground.

It has long been established that the sufficiency of the convicting evidence is not cognizable in a post-conviction proceeding. ¹⁴ Thus, the trial judge properly held that the appellant was not entitled to post-conviction relief on this ground.

We parenthetically note that the convicting evidence was sufficient for a rational trier of fact to find the appellant guilty of the offense of rebellion with the intent to escape beyond a reasonable doubt. ¹⁵

This issue is without merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

The appellant contends that he was denied his constitutional right to the effective assistance of counsel because the attorney who represented him: (a) failed to properly investigate the facts and circumstances surrounding the offenses alleged in the indictment, (b) failed to seek a severance of defendants, (c) failed to assert a viable defense, (d) failed to properly prepare and argue the motion to suppress the appellant's statements to prison officials, (e) permitted the appellant to stand trial while he was under the influence of a narcotic substance, and (f) pled the appellant guilty to attempted escape without the appellant's consent. The trial judge found that the appellant failed to establish the services rendered by trial counsel fell below the range of competence demanded of attorneys or that the conduct of counsel had an adverse effect on his defense. We agree.

The only evidence that trial counsel failed to properly investigate the facts was the conclusory statement of the appellant. However, the appellant conceded that he didn't remember everything that occurred before and during the trial. On the other hand, trial counsel testified he had several conversations with the appellant. Three of these conversations took place at the prison. He also had conversations with the appellant before and after several court appearances. Counsel also talked to witnesses, obtained the statements of several inmates, and a diagram of the guild where the crime occurred. The appellant did not provide counsel with the names of any witnesses.

When a petitioner contends that trial counsel failed to discover, interview, or present witnesses in support of his defense, these witnesses should be presented by the petitioner at the evidentiary hearing. As a general rule, this is the only way the petitioner can establish that (a) a material witness existed and the witness...