# FILED
June 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9704- CR-00149 ) Appellant/

Cross-Appelle e, ) ) SEVIER COUNTY V. ) ) ) HON. BEN W. HOOPER,II I, JUDGE STEW ART W . PAIT, ) ) Appe llee/Cros s-Appe llant. ) (POST -CON VICTIO N)

FOR THE APPELLEE FOR THE APPELLANT CROSS-APPEL LANT : CROSS-APPELLEE : STEW ART W . PAIT, pro se JOHN KNOX WALKUP #135240, S.T.S.R.C. F., Unit 12 Attorney General& Reporter Route 4, Box 600 Pikevil le, TN 37367 TIMOTHY F.BEHAN Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 ALFRED C.SCHMUTZER, J R. District Attorn ey Ge neral STEVEN E. HAWKINS Assistant Distri ct Attorney General 125 Cou rt Avenue, Ro om 301 -E Seviervi lle, TN 37862 OPINION FILED ________________________ JUDG MEN T DIS MISS ING P ETIT ION F OR P OST -CON VICT ION R ELIEF IS AFFIRMED; ORDER GRANTING A NE W SENTENCING HEARIN G AND SETTING ASI DE PRIOR JU DGMENT DISMI SSING PETI TION FOR POSTCONVICTION RELI EF IS REVERSED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The case befo re thi s Court i s a consol idati on of two appe als. Th e first is the State ’s extraordi nary appeal f iled purs uant to Rule 10 of t he Tennessee Rules of Appe llate Proced ure, seeking review of th e trial court’s a ttempt to set aside its previous orde r denying pos t-conviction relief to Petitioner, Stew art W. Pait, and its attemptto gran t Petition er a ne w sen tencin g hea ring. T he se cond is Petitio ner’s appeal of the trial court’s origi nal dismissalof his petition fo r post-co nviction relief. In this appeal , the State argues that the tri al court was without j urisdic

tion when i t set aside its prior orde r of dismis sal of Pe titioner’s pos t-conviction petition. Th e State further submits that

the t rial cour

t erred i n its order

allowin g a new sentence for Petitioner. Finall y, the State argues that the tri al court c orrect ly denie d Petitio ner’s petiti on for pos t-conv iction re lie f in it s first order. We find t hat the trial court was without jurisdi ction to

set aside i ts ini tial j udgment and that Petition er’s pe titi on for post-convi ction rel ief was properly dismissed.

Pet itioner

was c onvicte d of so licitation to com mit first d egree murd er in th e Sevier County Circui t Court. On September 2, 1991, this Co urt affirm ed Pe titioner’s convicti on. See State v. Stewart W. Pai t , C.C.A . No. 03-C-01- 9103-CR-00076, Sevier Count y (Ten n. Cr im. Ap p., Kno xville, Se pt. 3, 19 91). P etitione r waive d his right to file a R ule 11 ap plication to th e supre me co urt.
Thereafter, Petiti oner fil ed a petit ion for post-convi ction reli ef on April25, 1994, and a mendedthat pe ti ti on on Sept ember 11, 1996 . On January 31, 1997, t he trialcourt conducted a heari ng on Petiti oner’s petition for post-convi ction rel ief and considered Petiti oner’s numerous cl aims in the followingthree categories: ex post-3-

facto sente ncing , ineffec tive ass istanc e of co unse l, and p rosec utoria l mis condu ct. The trialcourt fou nd fro m the evidence t hat the off ense for whic h Petiti oner was convictedoccurred on Novem ber 3, 1989, a nd that Petitioner w as lawfully sentenc ed in accordance wit h the CriminalSentencing Reform Act of 19 89. The court also found that Peti tioner’ s sentence was properly en han ced and that t he jury i nstructi ons given were proper. The trialcourt fur ther found t hat Petitioner received th e effective assistance of counsel, that there was no pro s ecutorialmisconduct, t hat the trial judge sentenced Petitioner wi thin Range I, and that ther e was no prejudice regarding the range of puni shment notice f iled by t he State. The t rial cour t then dis missed Petitione r’s petition for p ost-con viction relief.

Petiti oner timely filed his notice of app eal from the trial court ’s orde r on February 12, 199 7. On February 25, 1997, Petiti oner then fi led a motion r equesting thatthe trial c ourt ru le on all i ssues in his petiti on and to reconsi der the sentenc ing is sue. On April 14, 1997, some fift y-five (55) days after the order was entere d dismissing the post-convicti on petiti on, the trialcourt attempted to set asi de its pri or judgment and ordered that Petiti oner was entitled to be res entenced pursuant to the rulingsin State v. Pearson , 858 S.W.2d 879 (Tenn. 1993) and State v. Slate , C.C. A. No. 03C01-9511-CC-00352, Sevi er County (Ten n. Cri m. App., Knoxvi lle, Oct . 18, 1996). It is from t his order t hat the State appeals. The Petitioner’ s appeal of the tri al court’s origina l dism is s al of hi s post-convi ction pet ition, and the State’ s Rule 10 extraordin ary appe al were c onsolida ted for ap peal.

I. Juri sdicti on-4-

On Janu ary 31, 1 997, the tr ial court sp ecifically foun d that no e x post facto problem existed s ince Petit ioner committed his cri me after November 1, 1 989, and because he was convicted and sentenced after that date as well. Petiti oner fil ed a notice of

appeal on February 12, 1997. On April14, 1997, t he trialcourt set aside its previous order dism issing Pe titioner’s pos t- convict ion petition. The trial court further ordered that

Petiti oner be granted a new sentencing hearing. The trial court based its d ecision on State v. S late in ordering the rese ntencing of Defen dant. Howeve r, Slate and th e cas e befo re us c an be dis tinguish ed. In Slate , the trial judge was ordered to r esentence defendant based on oursup remecourt’s ruling in State v. Pearson , 858 S.W .2d 879
. Slate , C.C.A. No. 03C0 1-951 1-CC -0035 2, slip op. at 2-3. In Slate , the defenda nt was c onv icted of his cri me i n 198 8. T he s upreme court had prev iously ruled that whe n a defend ant is convicted be fore the effective date of the 1989Sentencing Reform Act, bu t sente nced after N ovem ber 1, 1 989, h is sentence must be calcul ated under both the 1982 Act and the 1989Act. Pearson , 858 S.W.2d 879, 884. The defendant must then recei ve the more favo rable sentence. Id . The defendant i n Slate was resen tenced bec ause the ap pellate court remande d his 1988 convic tio n for resentencing. C.C. A. No. 03C01-9511-CC-00352, slip op. at 1. Therefore, although he was origi nally convicted i n 1988, he was not senten ced un til after the effec tive date of th e 1989 Act. Id
.

In the instant

case, Peti tioner was convicted and s entenced after November 1, 1989. In fact, Pet itioner committed thecrime on November 3, 1989. Therefore, Petition er doe s not g et the b enefit o f dual c alcula tions o f his sen tence , as on ly the 1989 Act applies to his ca se. Neither Slate nor Pearson applies to the case sub judice
.-5- Furthermore, the tri al court no longer had ju risdictio n over the ca se an d cou ld not issue orders affe cti ng the case. When Petit ioner fi led his not ice of appealon February 12, 1997, the trial c ourt los t jurisdic tion an d this Court gained j urisdic tion. State v. Pendergrass , 937 S.W .2d 834 , 837 (T enn. 19 96); Sta te v. Peak , 823 S.W.2d 228, 229 (Tenn. Cri m. App. 1991)

. “Once the tr ial court loses jurisdict ion, it generally

has no power to am end its judgm ent.” Pendergrass , 937 S.W.2d at 837; State v. Moore , 814 S.W.2d 381, 382 (Tenn. Cr im. App. 1991). A judgment entered after a court l oses jurisdiction is vo id. Pendergrass , 937 S.W .2d at 837
. Moreover, the trialcourt lostits jurisdiction to resentence Petitioner as m ore than thirty days had pa ssed sin ce the se ntence was im posed
. Moore , 814 S.W.2d at 383. Based
on the foregoi ng reasons, t he trialcourt waswithout jurisd iction to act a s it did.

II. Deni al of Post- Convicti on Relief

Petiti oner presen ts seven issues in arguing that the trial cou rt erred in deny ing his peti tio n for post-conviction re lief. We will addre ss the issues a s they were categorizedby the trial court and then address any remaining i ssues at the end.

A. Ex Post Facto Sentencing As dis cussed in the jurisdictional argum ent, there is no issue as to ex p os t facto senten cing in this c ase. T h e crim e, the c onvictio n, and the se ntenc ing all occurred after November 1, 1989. Ther e fore, t he only senten cing act t hat appli es to the insta nt case is the 198 9 Act. Th is issue is w ithout me rit.

B. Assistance of Counsel-6- In determiningwheth er cou nsel p rovide d effec tive ass istanc e at trial, the court must decide w heth er counse l’s performance was withi n the range of competence de mande d of attorney s in crimin al cases
. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was ineff ect ive at t rial , a petiti oner bears the burden of showi ng that hi s counsel made errors so ser ious that he was not funct ioning as counse l as guaranteed under the Sixth Amendment and thatthe defic ient repr esentation prejudiced the petition er resulting in a failure to produc e a reliable result. Strickl and v. Washington , 466 U.S . 668, 693 , 104 S. C t. 2052, 80 L. Ed . 2d 674 , reh’g denied , 467 U.S . 1267 (1 984); Coope r v. State , 849 S.W.2d 744, 74 7 (Ten n. 1993 ); Butler v. Sta te , 789 S.W.2d 898, 899 (Ten n. 1990). To satisfy the second prong t he petitioner m ust show a reaso nable p robability tha t, but for cou nsel’s unrea sona ble erro r, the fac t finder w ould h ave ha d reas onab le doubt regar ding pe titi oner’s gu ilt. Strickl and , 466 U .S. at 69 5. This reaso nable probab ilitymust be “suff icien t to underm ine confidence in the outcom e.” Harris v. State , 875 S.W .2d 662 , 665 (T enn. 19 94) (citation omitted)

.

When reviewing tri al counsel’s acti ons, this Court should not usethe be nefit of hindsigh t to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s al leged errors shoul d be judged at the time th ey wer e ma de in light of all facts a nd circum stance s. Strickl and , 466 U.S. at 690; see Cooper , 849 S.W.2d at 746.

In determining whether thi s Petiti oner has satisfied t hese require men ts, this Court mu st give t he findi ngs of the t rial cour t the weight

of a jury

verdict , and the judgment of the tria l court w ill not be rever sed unless the evidence contai ned in the-7-

record preponde ra tes agains t the finding s of fact m ade by th e trial court. State v. Buford , 666 S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).

We have revi ewed Petiti oner’s various clai ms and we find that Peti tioner has failed to prese nt any e videnc e that s hows that his attorney represented hi m in any othermanner than com p etently . The tr ial cou rt found that his attorne y “did adeq uately prepare and inv estigate the facts

of the case, did pur

sue a motion for

a change of venue which the tri al court ov erruled when a j ury was selected, that t he Petiti oner never tol d defense attorney that the tape recordi ng introducedat tri al was not him or had been tamp ered w ith, and that all matters complai ned of by Peti tioner
w er e adequately addr essed by [hi s defense attorney].” We agree with the trial court’s findings. F urtherm ore, Petition er has fa iled to show thathe was prejudi ced in any wayby trial coun sel’s tactics. The evidence contai ned in the re cord does not prepon derate against the trial court’s finding tha t Petitioner receive d the effective assistan ce of cou nsel. Th is issue is w ithout me rit.

C. Prosecutorial Conduct Petiti oner did not rai se prosecutori al misco nduc t in his direct a ppea l, and h is failure to do so constitutes a waiver of th is issue. Tenn. C ode Ann . § 40-30-206 (g). Howeve r, even if we deem t his issue as not waived, it is stil l without merit. The t rial court found in i ts order di smissing the post-convicti on petiti on that ther e was no prosecutori al misconduct because the tri al judge sentenced Petiti oner within Range I, and therefore , Petitioner could no t have been affected by the err oneous Notice of Intent to S eek En hance d Punis hmen t. This issu e is withou t merit.
D. Remaining Issues-8- Petition er’s issues regard ing jury instru ctions, the indict ment and the “Morgan” he aring (issues t

wo, three and f

our) are al so waived. Tenn. Code Ann. § 40-30- 206(g).

Petiti oner argues that the trial court erred in allowing the prosecu tor to declare findings of fact and conclusions of law (issues one and s even). These are not issues forpost-convi ction rel iefsince they are not an ab ridgme nt of any co nstitutiona l right. Tenn . Code Ann. § 4 0-30-20 3.

In closing, we find that the t rial cour t was without

jurisdi ction i n settin g aside its previo us ord er dism issing the Pe titioner’s post-c onvictio n peti tion, an d also in ordering a ne w sen tencin g hea ring for P etitione r. W e find th at the tria l court’s original order dism issing Petitioner’s petition for po st-conviction relief was pro per.
Therefore, the judgme nt dismissing the petition for post-c onvictio n relief is af firmed. The order sett ing aside t he judgment dismis sing the post-con victio n petiti on and ordering a new sentencing hearing is reversed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JERRY L. SMITH, Judge

___________________________________ WILLIAM B. ACREE, JR., Special Judge