Lovin v. State

• Decision Date: 23 April 2009
• Docket Number: No. E2006-01883-SC-R11-PC.,E2006-01883-SC-R11-PC.
• Parties: Christopher LOVIN v. STATE of Tennessee.
• Court: Tennessee Supreme Court

286 S.W.3d 275

Christopher LOVIN v. STATE of Tennessee.

No. E2006-01883-SC-R11-PC.

Supreme Court of Tennessee.

September 3, 2008 Session.

April 23, 2009.

Jason D. Demastus, Chattanooga, Tennessee, for the appellant for the purpose of oral argument only; Christopher Lovin, Wartburg, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Mark A. Fulks, Senior Counsel (on appeal); and William Paul Phillips, District Attorney General; and John W. Galloway, Jr., Assistant District Attorney General (at trial), for the appellee, State of Tennessee.

Wade V. Davies and Anne Passino, Knoxville, Tennessee, for the Amicus Curiae, Tennessee Association of Criminal Defense Lawyers.

OPINION

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which JANICE M. HOLDER, C.J., WILLIAM M. BARKER, CORNELIA A. CLARK, and GARY R. WADE, JJ., joined.

This appeal involves the procedure to be followed when a prisoner desires to discharge retained counsel and to represent himself on appeal from the denial of a petition for post-conviction relief. The prisoner was convicted of first degree murder in the death of his infant son. After his conviction was affirmed on appeal, the prisoner filed a petition for post-conviction relief in the Criminal Court for Claiborne County. He became dissatisfied with the lawyer his parents retained to represent him in the post-conviction proceeding. After the trial court dismissed his post-conviction petition and the case was appealed to the Court of Criminal Appeals, the prisoner attempted to discharge his retained lawyer and to represent himself before the appellate court. However, his retained lawyer declined to withdraw because the Court of Criminal Appeals had denied the prisoner's motion to dismiss his retained counsel. Thereafter, the Court of Criminal Appeals affirmed the denial of the prisoner's petition for post-conviction relief, and the prisoner filed a Tenn. R.App. P. 11 application. We granted the prisoner's application for permission to appeal to determine whether the prisoner had effectively discharged his retained lawyer and whether the Court of Criminal Appeals should have permitted him to represent himself on appeal from the denial of his petition for post-conviction relief. We have determined that the prisoner effectively discharged his retained lawyer and that the lawyer should have notified the Court of Criminal Appeals that he desired to withdraw from the case because he had been discharged. Because the retained lawyer failed to inform the Court of Criminal Appeals that he had been discharged, we vacate the judgment affirming the denial of the prisoner's petition for post-conviction relief and remand the case to the Court of Criminal Appeals for further proceedings consistent with this opinion.

I.

Caylis Lovin was born three months prematurely. On October 16, 2000, when he was only four months old, Caylis died as a result of either a violent shaking or a severe blow, either of which was sufficient to kill him. A Claiborne County jury convicted his father, Christopher Lovin, of first degree murder in the perpetration of aggravated child abuse. Mr. Lovin, who was represented by two public defenders at trial, was sentenced to life in prison with the possibility of parole. The Court of Criminal Appeals affirmed the conviction. State v. Lovin, No. E2002-01231-CCA-R3-CD, 2003 WL 22462532 (Tenn.Crim. App. Oct.31, 2003) (No Tenn. R.App. P. 11 filed).

Mr. Lovin filed a pro se petition for post-conviction relief and a "memorandum of law and supporting facts" on April 7, 2004. Later, on November 12, 2004, he filed a pro se amendment to his petition for post-conviction relief and a supporting memorandum of law in which he alleged that he had not received effective representation from the public defenders who represented him at trial.¹ Mr. Lovin also asserted that he was indigent and requested the trial court to appoint a lawyer to represent him in the post-conviction proceeding. The trial court appointed a lawyer to represent Mr. Lovin, and on December 6, 2005, the appointed lawyer filed an amended post-conviction petition that also included an ineffective assistance of counsel claim.²

Mr. Lovin's father, acting on his son's behalf, thereafter retained J. Liddell Kirk, a lawyer practicing in Knoxville, to represent Mr. Lovin in the post-conviction proceeding. Mr. Kirk filed a second amended petition for post-conviction relief on Mr. Lovin's behalf on July 13, 2006.³ While the proceedings in the trial court were pending, the relationship between Mr. Lovin and Mr. Kirk began to sour because Mr. Lovin became concerned about the infrequency of their communications and Mr. Kirk's disinclination to raise issues that Mr. Lovin thought should be raised. Accordingly, on August 2, 2006, just nine days before the hearing on his post-conviction petition, Mr. Lovin filed a pro se amendment to his original post-conviction petition expanding on one of his claims regarding the ineffectiveness of the public defenders who had represented him.

On the same day he filed his amended pro se petition, Mr. Lovin filed a motion entitled a "Motion to Proceed Pro Se in Seeking Post-Conviction Relief and to Allow Present Counsel ... to Remain as Co-Counsel." In this motion, Mr. Lovin complained that he had not authorized either the appointed counsel or Mr. Kirk to amend his original post-conviction petition and that, despite his requests, Mr. Kirk had failed to meet with him to discuss several issues of importance. Concerned about the possibility of waiver, Mr. Lovin wrote, "[p]etitioner needs to preserve all issues not raised or that counsel would refuse to raise[,] ... which he cannot do unless he is allowed to proceed as counsel with [his attorney] assisting as co-counsel." However, Mr. Lovin expressly noted that he did "not seek to dismiss or replace present counsel," and that he was "in no way ... attempting to relieve" his attorney of his obligations.

The trial court did not rule on Mr. Lovin's motion prior to the post-conviction hearing that was held on August 11, 2006. Mr. Lovin broached the subject of self-representation to the trial court during the hearing and again expressed concern about waiving any of his ineffective assistance of counsel claims.⁴ The trial court expressed a willingness to allow Mr. Lovin to proceed pro se "if that arises." Later in the proceeding, the trial court permitted Mr. Lovin to present orally the ineffective assistance of counsel issues that Mr. Kirk had considered frivolous and had refused to raise.

The State called one of the public defenders who represented Mr. Lovin at trial to respond to the allegations of ineffective assistance of counsel. He testified that, contrary to Mr. Lovin's allegations, he had consulted with a medical expert but that no reasonable expert would have disagreed with the State's witnesses. He also testified that Mr. Lovin was examined and found to be competent, that a second EMT's testimony, which Mr. Lovin claimed would corroborate his theory of events, would not have added exculpatory evidence, and that he had decided not to pursue the theory that the child's mother inflicted the injuries because Mr. Lovin requested him not to and because the theory was not consistent with the evidence. On cross-examination, the public defender testified that the second EMT's testimony would have been consistent with the defense's position that the child was severely congested. He also testified that, in the face of strong physical evidence of intentional injuries, he had chosen not to pursue the theory that the mother inflicted the injuries as a strategic move, believing it preferable to rely on one theory rather than to "shotgun it." The public defender also remembered some minor inconsistencies between Mr. Lovin's testimony and that of the child's mother but could not recall whether, during cross-examination, he had asked the State's witnesses questions about possible injuries resulting from the improper administration of CPR or of the child's medicine.

The trial court entered an order on August 11, 2006, denying Mr. Lovin's petition for post-conviction relief. On September 7, 2006, Mr. Kirk filed a notice of appeal on behalf of Mr. Lovin.

By this point, the professional relationship between Mr. Lovin and Mr. Kirk had disintegrated. Mr. Lovin was displeased with the lack of communication between them, Mr. Kirk's refusal to raise issues that Mr. Lovin believed he had promised to raise, and finally, Mr. Kirk's refusal to withdraw from the case both in the trial court and on appeal. On October 26, 2006, less than two months after the filing of the notice of appeal, Mr. Lovin filed a motion in the Court of Criminal Appeals to dismiss Mr. Kirk as his lawyer and to represent himself on appeal. Mr. Lovin asserted in this motion:

2. That during the entire representation of Appellant Counsel refused and refuses to properly communicate with him including failing to provide the appellant with copies of relevant documents that counsel has filed on his behalf including any and all documents allegedly filed in the post-conviction court and in this appeal;

3. That all communications between appellant and counsel have completely ceased to exist and in light of the fact that counsel seems to ignore the appellant and appellant's best interest in regards to the case and issues herein appellant desires that he be dismissed from the case and that appellant be allowed to proceed pro se herein this appeal.

Accordingly, Mr. Lovin requested the Court of Criminal Appeals to dismiss Mr. Kirk, to strike any brief that Mr. Kirk may have filed on his behalf, and to grant him a thirty-day extension of time within which to prepare and file his own brief. Unbeknownst to Mr. Lovin, the record of the post-conviction proceedings had not yet been filed with the Court of Criminal Appeals when he filed his motion.

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