Rhoden v. State

• Decision Date: 21 February 1991
• Docket Number: No. 89-241-III,89-241-III
• Citation: 816 S.W.2d 56
• Parties: Lawtis Donald RHODEN, Appellant, v. STATE of Tennessee, Appellee. 816 S.W.2d 56
• Court: Tennessee Court of Criminal Appeals

Page 56

816 S.W.2d 56

Lawtis Donald RHODEN, Appellant, v. STATE of Tennessee, Appellee.

No. 89-241-III.

816 S.W.2d 56

Court of Criminal Appeals of Tennessee,

at Nashville.

Feb. 21, 1991.

Permission to Appeal Denied by Supreme

Court July 1, 1991.

Stan Allen, Nashville, for appellant.

Charles W. Burson, Atty. Gen., & Reporter, Kymberly L.A. Hattaway, Asst. Atty. Gen., Victor S. Johnson, III, Dist. Atty. Gen., Cheryl Blackburn, Asst. Dist. Atty. Gen., Nashville, for appellee.

OPINION

JONES, Judge.

This is an appeal as of right from a judgment of the trial court denying post-conviction relief. After a thorough review of the facts and the law governing the numerous issues raised by the appellant, the judgment of the trial court is affirmed.

PROCEDURAL BACKGROUND

The appellant was convicted of rape and the use of a minor for an obscene purpose by a jury of his peers. The trial court sentenced the appellant to confinement in the Department of Correction for a term of twenty (20) years in each case. The sentences were ordered to be served consecutively for an effective sentence of forty (40) years. This Court affirmed the appellant's convictions and sentences. ¹ The Supreme Court denied his application for permission to appeal on October 5, 1987.

The appellant filed a pro se petition for post-conviction relief on February 16, 1988, while incarcerated in the State of California. The trial court dismissed the petition without prejudice until the appellant was returned to this State.

The appellant was returned to Tennessee on June 15, 1988. Eight days later, the appellant moved the trial court to reactivate the post-conviction suit he had previously commenced. The trial judge granted the appellant's motion, and the proceedings were reinstituted. The appellant filed an amended and supplemental petition with the assistance of appointed counsel on the 21st day of October, 1988. Later, the appellant moved the trial court for the entry of an order voiding a prior Florida conviction. He also requested a new sentencing hearing.

The record reflects that the evidentiary hearing consumed approximately three days. On March 17, 1989, the trial court entered an order denying the relief sought by the appellant. Thereafter, the appellant initiated this appeal as of right.

SCOPE OF APPELLATE REVIEW IN POST-CONVICTION CASES

When the petitioner in a post-conviction proceeding is granted an evidentiary hearing to ventilate the grounds raised in his petition, the trial court's findings of fact are afforded the weight of a jury verdict. Consequently, this Court is bound by the trial court's findings of fact unless it is established that the evidence contained in the record preponderates against the court's findings or the judgment entered. ²

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 that (a) the services rendered or advice given by counsel fell below "the range of competence demanded of attorneys in criminal cases," ³ and (b) the unprofessional conduct or errors of counsel "actually had an adverse effect on the defense." ⁴ As the United States Supreme Court said in Strickland v. Washington:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. ⁵

If the petitioner fails to establish either prong of this standard, he is not entitled to relief. ⁶ Allegations of ineffective assistance of counsel in the appellate courts are governed by these same standards. ⁷

Since the trial court found that the appellant failed to establish that he was entitled to post-conviction relief, this Court must review the record for the purpose of determining whether the evidence preponderates against the trial court's findings of fact or the judgment the trial court entered. In doing so this Court is bound by certain well-established rules governing appellate review. As this Court said in Black v. State:

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. ⁸

Since the petitioner seeks to vitiate his convictions on the ground he was denied the effective assistance of counsel, this Court must be cognizant of other standards the appellate courts of this State have established. As this Court stated in Vermilye v. State:

First, the standard created in Baxter does not require perfect representation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn.1982). Second, it is not our function to "second guess" trial counsel's tactical and strategic choices pertaining to matters of defense unless these choices are made without knowledge of the relevant facts or the law applicable to the issue. Hellard v. State, supra; State v. Swanson, supra; McBee v. State, 655 S.W.2d 191, 193 (Tenn.Crim.App.1983). See People v. Corona, 80 Cal.App.3d 684, 145 Cal.Rptr. 894 (1978). As the Supreme Court said in Hellard: "... [T]he defense attorney's representation, when questioned, is not to be measured by "20-20 hindsight." 629 S.W.2d at 9. Third, an accused is not deprived of the effective assistance of counsel because a different procedure or strategy might have produced a different result. Williams v. State, supra [599 S.W.2d 276] at 279-280 [ (Tenn.Cr.App.1980) ]; Long v. State, 510 S.W.2d 83, 88 (Tenn.Crim.App.1974)."

⁹

With these rules in mind, this Court will proceed to consider the merit of the appellant's contentions.

CONSTITUTIONALITY OF STATUTE

The appellant contends that the statute proscribing the use of a minor for an obscene purpose is constitutionally infirm. This Court addressed this issue incident to the appellant's appeal as of right. ¹⁰ In ruling this Court said:

Our review of the record reveals the appellant did not file a pre-trial motion attacking the indictment on the ground the statute was unconstitutional. The appellant raised this issue for the first time post-trial in his motion for a new trial.

In this jurisdiction "[d]efenses and objections based on defects in the indictment, presentment, or information" must be raised prior to trial. Tenn.R.Crim.P. 12(b); State v. Farmer, 675 S.W.2d 212, 214 (Tenn.Crim.App.1984), [constitutionality of statute]. When an accused fails to comply with this mandate, he waives the issue. Tenn.R.Crim.P. 12(f). See State v. Farmer, supra, [constitutionality of statute]; State v. Hill, 623 S.W.2d 293 (Tenn.Crim.App.1981), [statute of limitations]. The waiver provision of Rule 12 applies to issues embracing the constitutionality of statutes as well as the constitutional rights of the accused. State v. Farmer, supra; State v. Foote, 631 S.W.2d 470, 472-473 (Tenn.Crim.App.1982) [identification issue]. ¹¹

Since this issue has been waived, it is not cognizable in this proceeding.

It should be noted that the statute in question has never been declared unconstitutional. In addition, the attorneys who represented the appellant expressed the opinion that the statute was not constitutionally infirm.

If this issue had been addressed on the merits, the appellant would not have been entitled to relief from his conviction. The statute is not overbroad or vague, as argued by the appellant on direct appeal and in the case sub judice, given the instructions included in the trial court's charge. ¹²

The trial court charged the jury that the phrase "sexual conduct" included, among other things, "the lewd exhibition of the male or female genitals." [Emphasis added]. This instruction narrowed the conduct that was proscribed by the statute. ¹³ As the United States Supreme Court said in Osborne v. Ohio:

Osborne's overbreadth challenge, in any event, fails because the statute, as construed by the Ohio Supreme Court on Osborne's direct appeal, plainly survives overbreadth scrutiny. Under the Ohio Supreme Court reading, the statute prohibits the "possession or viewing of material or performance of a minor who is in a state of nudity, where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals, and where the person depicted is neither the child nor the ward of the person charged." ¹⁴

This issue is clearly without merit.

SUFFICIENCY OF THE EVIDENCE

The appellant contends that the trial evidence is insufficient, as a matter of law, to support his conviction for using the victim, a minor, for an obscene purpose. This issue is not cognizable in a post-conviction proceeding. ¹⁵ We also find that this issue has been previously determined.

The sufficiency of the evidence was raised by the appellant on direct appeal. Based upon our reading of the record we concluded:

There is sufficient evidence contained in the record from which a rational trier of fact could conclude that the appellant is guilty of the offenses of rape and use of a minor for an obscene purpose beyond a reasonable doubt. ¹⁶

A ground has been previously determined "if a court of competent jurisdiction has ruled on the merits after a full and fair hearing." ¹⁷ A previously determined ground is not cognizable in a...