### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

une 27, 2001
CLIFTON D. WALLEN v. STATE OF TENNESSEE
Appeal from the Criminal Court for Hawkins County No. 7733 James E. Beckner, Judge

No. E2000-02052-CCA-R3-PC July 25, 2001

The summary dismissal of the petition for post-conviction relief is affirmed because the petitioner failed to adequately allege ineffective assistance of counsel based uponconflict of interests and the claim of incompetency to stand trial is waived.

Tenn. R. App. P. 3; Judgm ent of the Crimina

l Court Affirme

d.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J OSEPH M. T IPTON and R OBERT W. W EDEMEYER , JJ., joined. Kristi M. Davis, Knoxville, Tennessee, for the Appellant, Clifton D. Wallen.

Paul G. Summers, Attorney General & Reporter; Patricia C. Kussman, Assistant Attorney General; C. Berkeley Bell, District Attorney General, for the Appellee, State of Tennessee.
OPINION

The petit ioner, Clifton D. Wallen, appeals the Hawkins County Criminal Court’s summary dismissal of his petit ion for post-conviction relief. After a jury trial, the petitioner was convicted in the trial court on July 11, 1997 of being an habitual motor vehicle offender and of evading arrest, Class E felonies, for which he received Range I, consecutive two-year sentences in the Department of Correction. This court affirmed the convictions an

d sentences, and

our supreme court denied permission to appeal. See State v. C lifton D. Wallen , No. 03C01-9710-CC-00461 (Tenn. Crim. App., Knoxville, Mar. 17, 1999), perm. app. denied (Tenn. 1999). The petitioner filed
a timely post-conviction petition, and the lower court dismissed it without conducting an evidentiary hearing. Based upon our review of the record, the briefs, and the applicable law, we affirm the dismissal of the petition.

The post-conviction pe

tition claims the fol

lowing: The state failed to give notice of its intent to enhance the petitioner’s sentence; the indictment was void because of the allowance of
an amendment; the petitioner was denied counsel during his preliminary hearing; he was entrapped;1 The post-con viction co urt r uled only that the state’ s motion to di smiss the petiti on “is well

taken and the [petition] . . . is here by dism issed.”

2 We are awar e that, in State v. Bradfiel d, 973 S.W.2d 937, 945 (Tenn. Crim. App. 1997), this court held that
a pro se defendant m ay not collaterally challen ge the effectiveness o f his elbow cou nsel. Because the prese nt issue is decided on a procedural basis, we do not determine whether a conflict -of-interes

ts-based claim of ineffecti

ve assistance applies to e lbow co unsel.
-2- his sentences violat

e principles of du

e process; and he

was incompetent to

stand trial. The petition also claims t hat the petitioner ’s elbow counsel r

endered ineffe

ctive assistance

by failing to investigate

and prepare fo r trial, fai ling to explain strategies and defenses to the petitioner, and f ailing to object to eviden ce during trial. T

he petition also sta

tes, without elabor

ation, that “[t] h e courts where [sic] aware that a conflict existed between the petitioner and [counsel]. The court refus ed to ap point a new counsel to represent the defendant.” In his appellate brief, however, the petitioner restricts his grounds for post-conviction relief to only tw o – that the petitioner received ineffective assistance of counsel “in that he was not appointed a new attorney when he advised the trial court of his confl

ict with [counsel] ” and that, due to a brain condition, th

e petiti oner wa s incompetent

to stand trial. The petitioner asserts on appeal that the petitione r stated a colora ble claim for relief on

these two issues,

and the trial cour

t erred in summari

ly dismissing these c

laims. Also, he argues that the trial court erred in making neither findings of fact nor conclusions of law. 1

I
First, with respect to the claim of conflict, we note that ine ffective assistance of counsel may result when an attorney’s performance is affected by a conflict of interests. Strickland
v. Washington , 466 U.S. 668, 692, 104 S. Ct. 2052, 2067 (1984). In such a situation, preju dice is presumed, but only “if the defendant demonstrates that counsel ‘actively represented conflicti ng interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’” Id

. A mere “potential conflict of interest” serves as no basis for a claim of ineffective assistance of counsel. Michael Allen Hamlin v. State , No. M1999-00936-CCA-R3-PC, slip op. at 4 (Tenn. Crim. App., Nashville, Mar. 13, 2000). To establish the claim based upon conflict of interests, the conflict must be actual and significant, not irrelevant or “merely hypothetica l.” Howa rd Clifton Kirby v. State , No. 03C01-9303-CR-00074, slip op. at 4 (Ten n. Crim . App., Knoxville, Sept. 28, 1994), perm. app. denied

(Tenn. 1995).

In the present case, ho wever, the petition does not adequately state a claim of ineffective assistance of counsel. The petition merely asserts that “a conflict existed between the petitioner” and his “elbow” counsel. The allegation is devoid of any meaningful description of the conflict. It eve

n fails to articula

te a conflict of interests, per se. Thus, as pres ented in the post-conviction petition, this claim is unworthy of an evidentiary hearing and was properly dismissed. 2 Whether a post-c onviction claim is

of a type or is prese nted in s uch a way as to make it subject to summary dismissal is generally a matter of-3-

legislative prerogative. Blair v. State , 969 S.W.2d 423, 425 (Tenn. Crim. App. 1997). In creating our current post-conviction relief law, our legislature mandated that a petition for post-conviction relief “shall include allegations of fact supporting each claim for relief.” Tenn. Code Ann. § 40-30- 204(e) (1997). “The petition must contain a clear and specific

statement of all grounds upon which relief is sought, including full disclosure of the factual basis

of those grounds.” Tenn. Code Ann. § 40-30-206(d) (1997) (emphasis added). “ Failure to state a factual basis for the grounds alleged shall result in immediate dismissal of the petition,” although if the petition is filed pro se , the judge, in lieu of dismissal, may order the amendment of the petition. Id . (emphasis added); see R. Tenn. Sup. Ct. 28, § 6(B)(4)(a).

There exists t

he possibility that a pro se petitioner may have a merito rious c laim dismissed beca use the petitioner

was unable to communicate

it effectively in

his or her petition, thus extinguishing the claim forever. . . . This may at times produce what may appear to be a harsh consequence resulting from the restrictions in the [1995 P ost-Conviction Relief] Act. However, the leg islature has establishe d the guidelines for

reviewing post-c

onviction cases.

Blair , 969 S.W.2d at 425. Even though the statute empowers a post-conviction court to order the amendment

of a petition that contains inadequately described grounds for relief, it does not require the court to do so, and post-conviction courts act within their discretion when they dismiss such petitions. Harris v. State , 996 S.W.2d 840, 842 (Tenn. Crim. App. 1999), perm. app. denied (Tenn. 1999).

In the present c ase, we fin d no basis for concluding that the post-conviction court abused its discretion in dismissing the “conflict”-based claim of ineffective assistance of counsel.

II

Neither did the lower cour

t err in summarily dismissing the claim that the petitioner was incompetent to stand trial.

The state argues that this issue was previously determined. See Tenn. Code Ann. § 40-30-206(f), (h) (1997) (a ground for post-conviction relief has been p reviously determined and subject to dismissal when a court of competent jurisdiction has ruled on the merits

after a full and fair hearing). The st

ate refers to

this court’s direct appeal adjudication of the issue of the petitioner’s competency to represent himse lf at trial. See Clifton D. Wallen , slip op. at 12. Apparently basing his direct appeal argument upon the same mental condition that he now uses as a post-conviction ground, the petitioner in his direct appeal claimed that he was not competent to represent

himself. It is unclear, however, whether the petitioner in his direct appeal was attacking his comp

etency to defend a crimi n al case or whether he challenged his competency to waive representation by an attorney. See Clifton D. Wallen , slip op. at 12. During the petitioner’s sentencing hearing, the trial court stated that it had r

igorously examine

d the petitioner in r

esponse to his requ

est to repr esent-4-

himself and that the peti

t ioner “‘demonstrated at all times a clear mind and ability to represent [him]self.’” Id . If the trial court actually r uled that the petiti

oner was compete

nt to waive counsel, then, previously to the post-conviction, it had determined, in effect, his co mpetency to stand t

rial, because competency to waive counsel equates to competency to stand trial. State v. Clyde Turner , No. W1999-00797-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App., Jackson, May 24, 2000).

Because it is difficult to discern the precise issue addressed by the trial court, we are
unsure whe the r a previous determination of the issue has been made. It is of no consequence, however, to this post-conviction proceeding.

If the issue was not pr

eviously determined, it has been waived. It could have been presented for determination at trial and upon direct appeal. See Tenn. Code Ann. § 40 -30-206(f), (g) (1997) (a ground for post-conviction relief has been waived and subject to dismissal when the petitioner “personally or through an attorney failed to present it for determination in any proceeding before a court of competent jurisdict ion”). Clea rly, at the time of trial and the direct appeal, the petitioner knew a bout the mental condition that he later described in his post-conviction petition. He used the condition as a direct appe al basis for chal

lenging his

competency to represent himself. We see no reason wh

y he could not have

previously challe

nged his competency to stand trial. Thus, this issue presents no colorable claim for post-conviction relief. See Harris , 996 S.W.2d at 842.

III

We do find, as the state on appeal has conceded, that the trial court er

red in failing to set forth its findings of facts and conclusions of law. See Tenn. Code Ann. § 40- 30-206(f), - 211(b) (1997). Non-comp liance with the sta

tutory mandate

to state findings of fact and conclusions of law, however, does not require a reversal when the record enables meaningful appellate review. Rickman v. State , 972 S.W.2d 687, 692 (Tenn. Crim. App. 1997). In the present case, the conflict issue is resolved in

this appeal by the language of the petition, and the competency issue is resolved by a review of the petition and this court’s opinion in Clifton D. Wallen . Thus, the record enables meaningful appellate review, and the petitioner is not prejudiced by the la conic nature of the trial court’s order.

IV

In conclusion, we find no reversible error and affi

rm the judgment of th

e trial court.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE