Opinion
No. M2002-02195-CCA-R3-PC.
Assigned on Briefs April 22, 2003.
Filed November 7, 2003.
Appeal from the Criminal Court for Davidson County; No. 94-B-1311; Steve Dozier, Judge.
Affirmed.
Gregory D. Smith, Franklin, Tennessee, Attorney for Appellant, Wayford Demonbreun.
Paul G. Summers, Attorney General Reporter; Helena Walton Yarbrough, Assistant Attorney General; William Edward Gibson, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Joe G. Riley and Norma McGee Ogle, JJ., joined.
OPINION
Wayford Demonbreun Jr. appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief. Claiming he did not receive the effective assistance of counsel at trial and on appeal, he requests a delayed appeal. Because we are unpersuaded that counsel rendered prejudicial ineffective assistance and because a direct appeal is not the appropriate remedy for the claimed errors, we affirm the lower court's denial of the claim.
I. Procedural History
After two mistrials, Wayford Demonbreun Jr. was convicted in his third trial of second degree murder and aggravated assault. See State v. Wayford Demonbreun Jr., No. M1998-00239-CCA-R3-CD (Tenn.Crim.App., Nashville, Mar. 3, 2000) (Rule 20 disposition), perm. app. denied (Tenn. 2000). In the conviction proceedings, the petitioner was represented by a series of several attorneys. Dennis Hughes represented him at his first trial. That proceeding was terminated via mistrial when a state's witness brought to light while on the witness stand that Hughes had attempted to bribe her into exculpating the petitioner. See State v. Dennis J. Hughes, No. M1997-00084-CCA-R3-CD (Tenn.Crim.App., Nashville, Dec. 28, 1999), perm. app. denied (Tenn. 2000). Before the mistrial was declared, the court appointed Michie Gibson to represent the petitioner for purposes of determining whether the petitioner desired to move for a mistrial. After a mistrial was granted on the petitioner's motion, the petitioner retained Gibson, who continued to represent him through the second trial, which resulted in a mistrial occasioned by a hung jury, and the third trial, which resulted in the petitioner's convictions. At some point prior to the third trial, the court declared the petitioner indigent and appointed Gibson as well as the Davidson County Public Defender's office to represent the petitioner. Gibson filed a motion for new trial which raised only the issue of sufficiency of the evidence. The Davidson County Criminal Court's minutes reflect that the motion for new trial was heard and denied, and an order was entered which indicates that the motion was heard and denied and that Gibson and Dykes were allowed to withdraw. The time frame is not clear, but Robert Mendez was appointed to represent the petitioner, perhaps before the motion for new trial disposition. However, Mendez was not taking new criminal cases, and the court relieved him of the appointment. Bill Roberts was appointed to represent the petitioner. Apparently, Roberts did not pursue the petitioner's direct appeal, and this court relieved Roberts and appointed Cynthia Fort, who prosecuted the petitioner's direct appeal.
We have reviewed the appellate record from the petitioner's direct appeal. See Tenn. R.Evid. 201(a); State v. Nunley, 22 S.W.3d 282, 288 (Tenn.Crim.App. 1999), perm. app. denied (Tenn. 2000).
The petitioner then filed a pro se post-conviction petition in which he alleged (1) violations of various constitutional rights in the trial court's alleged failure to obtain the petitioner's consent to a mistrial at the first of the petitioner's trials, (2) that he had not received the effective assistance of counsel from the attorneys who represented him in his three trials, and (3) various instances of prosecutorial misconduct. Counsel was appointed and filed a supplemental petition which focused on the issue of ineffective assistance of counsel, particularly in failing to preserve issues in the motion for new trial and raise those issues on appeal. Following a hearing on the post-conviction petition, the lower court denied relief, which prompted this appeal. In his appeal, the petitioner urges us to grant him a delayed appeal based upon ineffective assistance of counsel, but the thrust of his argument is that his due process rights were violated because he was denied the right to be present at a motion for new trial hearing.
II. Post-Conviction Proceedings in Lower Court
In large measure, the evidence presented at the post-conviction hearing consisted, as it often does, of the petitioner's litany of complaints about the actions of counsel, with counsel's testimony offering a conflicting view of the facts. Much of the evidence at the hearing below was geared toward factual assertions pertinent to the ineffective assistance claim.
However, for purposes of this appeal, the more relevant information involves procedural issues surrounding the petitioner's motion for new trial in the conviction proceedings. That motion was filed by Attorney Gibson and raised sufficiency of the evidence as its only issue. Although court minutes reflect that the motion was heard and denied, the lower court found that no hearing was held. Nevertheless, the conviction was appealed, and this court adjudicated the appeal on its merits.
With respect to the factual issues involved at the post-conviction hearing, the lower court discredited the testimony of the petitioner and accredited that of the petitioner's trial and direct appeal attorneys. We afford the lower court's findings of fact a presumption of correctness, by which we are bound unless the evidence preponderates to the contrary. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001).
The petitioner has declined the opportunity in his brief to set forth specific factual determinations of the lower court and explain why he contends they are unsupported by the evidence. Taking the petitioner's lead, we decline to engage in a lengthy recitation of the evidence presented and a discussion of the reasons that the lower court's findings are supported by the record.
III. Appellate Issues
We now turn to the issues the petitioner has raised in this appeal. He asserts that he had a constitutional right to be present at a motion for new trial hearing. He claims that because there is a question whether the motion for new trial was ever actually heard, he should be allowed a delayed appeal "beginning immediately prior to the filing of the motion for new trial." He casts this claim as one involving his constitutional right to the effective assistance of counsel, as well as one based in his due process right to be present at every stage of the trial. See State v. Muse, 967 S.W.2d 764, 766 (Tenn. 1998) (defendant's right to be present). He also claims that the direct appeal was "a mess" and that "[s]everal potential appellate issues were lost in the confusion" at the post-conviction hearing when the lower court took up the issue whether there had been a hearing on the motion for new trial. We presume this imprecise argument is an attempt to raise the question of competency of trial and appellate counsel in preserving issues for and raising issues on direct appeal.
The Post-Conviction Procedure Act provides that a petitioner may be granted a delayed appeal of his conviction proceedings if he was denied a direct appeal in violation of the state or federal constitutions. Tenn. Code Ann. § 40-30-113(a) (2003). The petitioner in the case at bar seeks this remedy notwithstanding the fact that he has already had a direct appeal of his conviction proceedings, albeit one not to his liking. See generally State v. Wayford Demonbreun Jr. He neither cites any authority nor offers any logic why the direct appeal of his convictions which actually transpired is ineffectual and should be considered nonexistent. While it does appear that the petitioner was denied a hearing on the motion for new trial, he was not denied an appeal, and the issue raised in the appellate proceedings was considered on its merits. The statute authorizing a delayed appeal simply does not apply to this scenario. See State v. Ronald Paul, No. M2002-00810-CCA-R3-CD, slip op. at 2-3 (Tenn.Crim.App., Nashville, Mar. 3, 2003); State v. Kenneth S. Griffin, No. E2000-02471-CCA-R3-CD, slip op. at 3 (Tenn.Crim.App., Knoxville, June 25, 2001), perm. app. denied (Tenn. 2001).
Even though the petitioner has specified his desired remedy to be a delayed appeal, we have considered whether the petitioner's more profitable avenue might be pursuit of the more traditional post-conviction route of having the judgment against him declared void or voidable based upon constitutional errors, thereby allowing him another opportunity to litigate those aspects of the proceedings which were tainted by the errors. See Tenn. Code Ann. § 40-30-111(a) (2003). In this light, we have considered whether the petitioner demonstrated at the post-conviction hearing that he established a claim of ineffective assistance of counsel or that his constitutional rights were denied by the irregularities in his absence at and the lack of a hearing on the motion for new trial.
First, with respect to ineffective assistance of counsel relative to the motion for new trial and direct appeal, the lower court found that the petitioner failed to carry his burden of proof at the post-conviction hearing. The petitioner has made no effort in his appellate argument to convince us that any issues omitted from the motion for new trial or direct appeal would have yielded relief had they been raised, and the record does not support that conclusion. See id. § 40-30-110(f) (2003) (petitioner has burden of proving allegations of fact by clear and convincing evidence); Fields, 40 S.W.3d at 456 (appellate courts must review post-conviction court's findings de novo with presumption of correctness and may not disturb them unless evidence preponderates to the contrary).
It is not entirely clear from the petitioner's brief whether he claims that he was denied due process because of his absence from a hearing on the motion for new trial or because the hearing itself did not take place. It is not necessary for us to sort out the imprecisions of the petitioner's argument, because neither alternative holds merit.
The defendant had no constitutional right to be present at a hearing on his motion for new trial. See Cisco v. State, 160 Tenn. 681, 28 S.W.2d 338 (Tenn. 1930) (motion for new trial not part of trial, constitutional right to be present at trial ends with verdict); see also Percer v. State, 118 Tenn. 765, 775, 103 S.W. 780, 783 (1907) ("Defendant's presence is not necessary during proceedings which are no part of the trial, but merely preliminary or subsequent thereto."), overruled on other grounds by State v. Rogers, 992 S.W.2d 393, 396 (Tenn. 1999); Jones v. State, 2 Tenn. Crim. App. 152, 158, 452 S.W.2d 361, 364 (1964) ("The accused's presence is not required at the hearing of his motion for a new trial[.]").
Likewise, the lack of a hearing itself afforded no constitutional peril to the petitioner. The only issue raised in the motion was sufficiency of the evidence at trial. No evidentiary hearing was required; the only evidence to be considered in resolving that issue had already been presented at trial. Moreover, inasmuch as dismissal or modification to a lesser-included offense, rather than a new trial, is the remedy for a faulty conviction premised upon insufficient evidence, sufficiency of the evidence is not an issue which must be raised in a motion for new trial in order to be preserved for appeal. See generally Tenn.R.App.P. 3(e). To the extent that the petitioner contends that other issues should have been raised by counsel at a hearing, he has raised that issue as one of ineffectiveness of counsel but, as explained above, has failed to prove that he would have prevailed in his motion for new trial or on direct appeal had counsel raised other issues.
For these reasons, we affirm the lower court's dismissal of the petitioner's post-conviction claims.