Hellard v. State
| Decision Date | 08 March 1982 |
| Citation | 629 S.W.2d 4 |
| Parties | William Ray HELLARD, Petitioner-Appellee, v. STATE of Tennessee, Respondent-Appellant. |
| Court | Tennessee Supreme Court |
William P. Sizer, Asst. Atty. Gen., Nashville, for respondent-appellant; William M. Leech, Jr., Atty. Gen., Nashville, of counsel.
James L. Weatherly, Jr., Nashville, for petitioner-appellee.
This is a proceeding for post conviction relief in which the prisoner, Hellard, attempts to have his conviction for armed robbery set aside upon allegations that his trial counsel, Mr. William Morrell, in his representation of the petitioner did not measure up to the standard of competence for counsel as set out by this Court in Baxter v. Rose, Tenn., 523 S.W.2d 930 (1975). The trial court sustained the petitioner's insistence, holding that the Baxter standard was applicable to this case and that Mr. Morrell, in his representation of the defendant, "did not measure up to the standards required by Baxter." The Court of Criminal Appeals in a two-to-one decision affirmed the judgment of the trial court. We granted the State's application for permission to appeal.
On May 19, 1975, this Court released its opinion in Baxter v. Rose, supra, wherein the "farce and mockery" standard of competence for counsel in criminal cases was replaced by a new and stricter standard requiring that the advice given and services rendered by an attorney in a criminal case must be "within the range of competence demanded of attorneys in criminal cases."
At the end of the Baxter opinion, we stated:
"From this day forward we will apply the standards, guidelines and criteria herein set forth." 523 S.W.2d at 939.
The first question for our determination is whether the Baxter standard should be applied to this case. Petitioner Hellard's conviction occurred on November 9, 1974; our opinion in Baxter was released on May 19, 1975; and, Hellard's conviction was affirmed by the Court of Criminal Appeals in an opinion released July 10, 1975. No application was made to this Court by Hellard for certiorari review. Throughout his trial and direct appeal Hellard was represented by attorney William Morrell whose competence he now challenges in this post conviction proceeding. In the criminal proceedings, no claim was made in the trial court or in the Court of Criminal Appeals that Mr. Morrell was failing to give Hellard competent representation. This, of course, is not surprising since Mr. Morrell was representing Hellard in both of those courts.
In State v. Robbins, Tenn., 519 S.W.2d 799 (1975), we discussed in some detail the principles to be employed in determining whether changes by this Court in its interpretation of constitutional law should be given retroactive application or should be applied in a "wholly prospective manner." Pertinent to this case is the following quotation from our opinion in Robbins, to wit:
State v. Robbins, Tenn., 519 S.W.2d at 800-801.
In the Baxter case we were free, in the interest of justice, to make the Baxter rule prospective only; the constitution "neither prohibits nor requires retrospective effect." Linkletter v. Walker, supra; Cumberland Capital Corp. v. Patty, Tenn., 556 S.W.2d 516, 538 et seq. We acknowledge that our departed brother Henry's language near the end of the opinion in Baxter that "from this day forward we will apply the standards, guidelines and criteria herein set forth" could be interpreted as a declaration that the new standard for attorney competence in criminal cases adopted in the Baxter case was to be restricted to cases tried after the release of the Baxter opinion. The truth is, however, that such exclusively prospective application of the Baxter rule was not our intention. Mr. Justice Henry loved to "turn a phrase" and his "from this day forward" language was merely his way of stating that this Court would apply the new Baxter standard to any cases brought before it raising the competence issue, irrespective of whether the case was tried before or after the announcement of the Baxter opinion.
The Baxter opinion contains no analysis of the question whether the rule therein adopted should be given a retroactive or prospective application. The first of the Linkletter-Robbins principles, i.e., that a change in the law will be given effect to cases still in the trial or appellate process at the time such change is announced is obviously inappropriate for the issue before the Court in this case because the nature of the issue, competence of counsel at trial, is such that it almost never will be raised during the trial or in the direct appeal process by the alleged incompetent attorney himself. Such issues are almost invariably raised only in post conviction proceedings after the original judgment has become final. Indeed, the issue cannot adequately be developed by pleadings and evidence until some appropriate post conviction proceeding is begun with counsel other than the alleged incompetent counsel of the defendant.
The second Linkletter principle in determining whether to apply a change in the law to judgments which have become final, when such judgments are collaterally attacked, depends upon a weighing of certain policy factors, such as, whether the application of the new rule will likely enhance the integrity and reliability of the fact-finding process of the trial and whether, on the other hand, application of the new rule is not likely to materially enhance the integrity of the fact-finding process of the trial, coupled with the probability that wholesale unsettling of final judgments of conviction will occur. Applying these principles to the instant case there can be no doubt that the impairment of the fact-finding function of the trial is substantial if the defendant is denied the benefit of counsel whose representation is reasonably competent under the Baxter rule; on the other hand, we know judicially from our experience since Baxter was decided in 1975 that retroactive application of the Baxter rule has not and is not likely to result in the wholesale unsettling of final judgments of conviction.
Therefore, our conclusion is that the Baxter standard for competency of counsel in criminal cases should be applied whether the initial trial and conviction occurred prior to or after May 19, 1975, the date of the release of the Baxter opinion. 1
Although the Supreme Court of the United States has rather consistently refused to apply newly announced constitutional principles retroactively when these principles do not enhance the integrity of the fact-finding process, it has, on the other hand, quite consistently given retroactive effect to newly announced constitutional principles which deal with subjects that affect the integrity of the fact-finding process. 2 It appears that the right to counsel, as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States, is so fundamental and affects the integrity of the fact-finding process at trial so substantially that, almost without exception, courts have required retroactive application of cases announcing changes in the law with respect thereto. Indeed, it has been said that effective assistance of counsel is a defendant's most fundamental right for it affects his ability to assert any other right he may have. United States v. Butler, 504 F.2d 220, 223 (D.C.Cir.1974). Retroactivity is necessary when the old rule "substantially impairs its (the trial's) truthfinding function and so raises serious questions about the accuracy of guilty verdicts in past trials." Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971).
Authorities with respect to the issue whether or not to give retroactive application to decisions dealing with the effective assistance of counsel support the position we have taken in favor of retroactivity. The U. S. Court of Appeals for the District of Columbia replaced the farce and mockery rule with a rule requiring reasonably competent assistance of counsel in United States v. DeCoster, 487 F.2d 1197 (D.C.Cir.1973). One year later, in deciding whether to give DeCoster retroactive application, the court, in United States v. Butler, 504 F.2d 220 (D.C.Cir.1974), decided that the...
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