08/07/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 20, 2017

CHRISTOPHER M. HEATH v. STATE OF TENNESSEE

Appeal from the Circuit Court for Williamson County

No. CR099064 Joseph Woodruff, Judge

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No. M2016-01906-CCA-R3-PC

___________________________________

Petitioner, Christopher M. Heath, was convicted of driving under the influence (“DUI”),

fifth offense, and second offense driving on a cancelled, suspended, or revoked driver’s 

license. He received an effective sentence of fifteen months. There was no direct appeal. 

Petitioner sought post-conviction relief. After a hearing at which Petitioner did not 

appear and did not present any proof, the post-conviction court dismissed the petition. 

Petitioner appeals from the denial of post-conviction relief. After a review, we affirm the 

judgment of the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and 

ROBERT H. MONTGOMERY, JR., JJ., joined.

Matthew J. Crigger, Brentwood, Tennessee, for the appellant, Christopher M. Heath.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;

Kim Helper, District Attorney General; and Carlin Hess, Assistant District Attorney 

General, for the appellee, State of Tennessee.

OPINION

Petitioner was indicted in May of 2013 by the Williamson County Grand Jury for 

DUI; DUI with a blood alcohol content equal to or greater than .08%; DUI with a blood 

alcohol content equal to or greater than .20%; driving on a cancelled, suspended, or 

revoked driver’s license; DUI fifth offense; and second offense driving on a cancelled, 

suspended, or revoked driver’s license. The matter proceeded to trial in August of 2014. 
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At trial, Deputy Mark Livengood of the Williamson County Sheriff’s Office 

testified that he arrived at the scene of a one-car accident where he found Petitioner at the 

scene. Petitioner was standing near the vehicle which was in a ditch with the engine still 

running. The vehicle was discovered to be registered to Petitioner, whose license was 

revoked. Deputy James Gillam, another officer who responded to the call, confirmed that 

there were empty beer cans and an empty liquor bottle inside the vehicle and that 

Petitioner smelled heavily of alcohol. Petitioner was described as unsteady on his feet 

and told Deputy Livengood two or three times that he was “going to jail.” Petitioner 

performed poorly on a finger dexterity test while seated on the hood of Deputy Gillam’s 

vehicle and informed the deputy that he had “more” drinks than the officer could 

“imagine.” 

After signing the implied consent form, a blood alcohol test revealed Petitioner’s 

blood alcohol content was .31. Neither of the officers who responded to the scene 

directly asked Petitioner if he was driving the vehicle when it wrecked, and neither 

officer saw Petitioner behind the wheel of the vehicle. Deputy James Gillam explained 

that there was no one “in the immediate area of the vehicle,” and Petitioner never told the 

officers that anyone else was driving. 

The jury convicted Petitioner of the offenses as charged in the indictment. The 

parties stipulated that the conviction was Petitioner’s fifth offense for DUI and second 

offense for driving on a cancelled, suspended, or revoked driver’s license. The trial court 

merged the convictions for DUI, DUI with a blood alcohol content equal to or greater 

than .08%, DUI with a blood alcohol content equal to or greater than .20%, and DUI fifth 

offense. The trial court also merged the two convictions for driving on a cancelled, 

suspended, or revoked driver’s license. As a result, Petitioner received a total sentence of 

fifteen months to be served at thirty percent for the DUI conviction and a sentence of 

eleven months and twenty-nine days for the driving on a cancelled, suspended, or 

revoked driver’s license conviction. The sentences were ordered to be served 

concurrently.

Trial counsel for Petitioner failed to file a notice of appeal. As a result, there was 

no direct appeal of the convictions. Petitioner filed several pro se motions, including: (1) 

a petition for ineffective assistance of counsel; (2) a motion for a copy of the preliminary 

hearing and trial transcripts; (3) a motion for new trial; (4) a motion for a restricted 

license; and (5) a motion to reduce his sentence. In the pro se petition for ineffective 

assistance of counsel, Petitioner alleged that trial counsel was ineffective for failing to 

subpoena a witness, for failing to inform Petitioner of the right to appeal his convictions, 

and for failing to defend Petitioner to the best of his ability. 

Post-conviction counsel was appointed and an amended petition was filed. In the 

amended petition, the following were raised as allegations of ineffective assistance of 
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counsel: (1) trial counsel’s failure to subpoena Kenneth Parker “within a reasonable 

amount of time prior to trial”; (2) trial counsel’s failure to discuss the right of appeal with 

Petitioner; and (3) trial counsel’s failure to file a motion for new trial. 

Post-conviction counsel introduced a copy of a subpoena issued for witness 

Kenneth Parker to appear at the post-conviction hearing and an affidavit from trial 

counsel as an attachment to the amended petition for post-conviction relief. In the 

affidavit, trial counsel stated that he was appointed to represent Petitioner at trial. Trial 

counsel explained that the case was set for trial three different times. The first setting 

ended in a mistrial as a result of statements made by Petitioner’s sister in the presence of 

prospective jurors. Petitioner failed to appear at the second setting of the trial. On the 

third trial date, Petitioner was convicted. Trial counsel explained the following with 

regard to Mr. Parker’s appearance:

Approximately a week prior to the first setting of the trial, Mr. 

Kenneth Earl Parker . . . willingly came to my office and during my

interview of him, stated that he was the one that was driving the vehicle in 

question and at the time in question as it relates to [Petitioner’s] February 

25, 2013 arrest for DUI. 

Mr. Parker willingly attended the first setting of the trial with the 

intent to testify on behalf of [Petitioner]. During a pretrial hearing the 

Court ruled to exclude his testimony based on the fact that [Petitioner] 

failed to timely [file a] notice of alibi. . . . 

Prior to the second setting of the trial, I requested a subpoena for Mr. 

Parker. . . . I personally served Mr. Parker with the subpoena prior to trial 

at my office. Mr. Parker remained in contact with me and willingly 

participated in calls and met with me in preparation for the second trial 

date.

Mr. Parker was present and prepared to testify at the second setting 

of the trial.

Prior to the third setting, I was no longer able to get in contact with 

Mr. Parker. It was relayed to me indirectly that he was refusing to testify 

on [Petitioner’s] behalf. I did not request a subpoena for Mr. Parker until . . 

. 2 days before the trial was set to begin.

I was unable to otherwise secure the attendance of Mr. Parker at 

trial.
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Upon [Petitioner’s] convictions . . . , I failed to advise [Petitioner] 

regarding his right to an appeal and that the State would pay for the costs 

and attorney’s fees for an appeal if he is found to be indigent. 

I failed to file a timely motion for a new trial on behalf of 

[Petitioner].

At the hearing on the petition for post-conviction relief, Petitioner did not present 

any evidence. In fact, Petitioner himself did not even appear at the hearing. According 

to post-conviction counsel, Petitioner “travels around” working construction and has “to 

rely on others for transportation” because he does not have a driver’s license. Postconviction counsel argued that the petition did not “raise any substantial questions of 

facts or events to which the Petitioner participated,” so it was unnecessary for Petitioner 

to testify or even appear at the hearing. Counsel for the State objected to “going 

forward” with the hearing without Petitioner present, arguing that Tennessee Code 

Annotated section 40-30-110(a) required the appearance of Petitioner at the hearing on 

the petition.

Post-conviction counsel explained that he originally intended to present the 

testimony of trial counsel and the testimony of the “key material witness,” Mr. Parker. 

Post-conviction counsel attempted to subpoena Mr. Parker on July 1, 2016, in advance of 

the July 19, 2016 hearing on the petition. The subpoena came back unserved and the 

officer wrote on the subpoena that Mr. Parker “was avoiding service.” Post-conviction 

counsel asked the post-conviction court for a continuance and to “issue a capias and set a 

material witness bond for Mr. Parker.” The State asked the post-conviction court to 

dismiss the petition with prejudice on the basis that Petitioner was not present. The 

parties argued at the hearing about whether Petitioner’s attendance was actually required 

by Tennessee Code Annotated section 40-30-110(a). 

At the conclusion of the hearing, the post-conviction court discussed the issue of 

whether Petitioner’s attendance at the hearing was required by Tennessee Code 

Annotated section 40-30-110(a). The post-conviction court determined that according to 

the statute, “if the Petition raises substantial questions of fact as to events in which the 

petitioner participated, then the petitioner shall appear and give testimony at the 

evidentiary hearing.” The post-conviction court commented:

[T]he fact of the matter is the right to pursue post[-]conviction relief 

is one that is not constitutionally required. It is granted by Statute. 

Petitioners who seek that remedy have to turn square corners with the State 

as it relates to the procedures applicable to post[-]conviction matters.

. . . .
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I don’t see any alternative granted by the Statute for a Petitioner to 

raise substantial questions of fact as [to] events in which the Petitioner 

participated and then simply decide not to show up at the hearing. I don’t 

think the Statute gives me any discretion in respect to that because it says, 

“the Petitioner shall appear and give testimony.”

But even if I did have discretion, based upon the facts of this case, I 

don’t think I would exercise my discretion for the benefit of the Petitioner 

in this particular setting. Not based upon the facts that I’ve had presented 

to me today, the record as a whole, I find that . . . the Petitioner’s failure to 

appear is voluntary. And as such, I think his Petition is due to be dismissed 

because he has raised substantial questions of fact as to events in which he 

participated. And notwithstanding the mandatory provisions of the Statute 

he is not here and has offered no . . . reasons why he’s not here. And so for 

those reasons, I’m ordering that the Petition be dismissed.

In a written order entered on July 26, 2016, the post-conviction court dismissed 

the petition for relief on the basis that Petitioner was not present at the hearing and his 

presence was required by Tennessee Code Annotated section 40-30-110(a). Petitioner 

filed an untimely notice of appeal on September 9, 2016. 

Analysis

A. Untimely Notice of Appeal

Prior to resolving any of the underlying issues presented by Petitioner on appeal, 

this Court must determine whether the interests of justice necessitate the waiver of timely 

filing of the notice of appeal. Petitioner acknowledges that his notice of appeal, filed 

forty-five days after the order dismissing the petition for post-conviction relief, is 

untimely. Petitioner “does not have an excuse for failing to file a notice of appeal on 

time” but argues that “justice” would be served by resolution of his issues on appeal and 

that there would be no prejudice to the State as a result of waiving the timely filing of the 

notice of appeal. The State, citing State v. Roy Thomas Rogers, No. W2015-00988-CCAR3-CD, 2016 WL 1045352, at *2 (Tenn. Crim. App. Mar. 15, 2016), no perm. app. filed,

contends that Petitioner’s “failure to identify a reason for the delay militates against a 

waiver in the interest of justice.” This Court does not endorse or encourage the untimely 

filing of a notice of appeal. However, we recognize that the notice of appeal is not 

jurisdictional. See Tenn. R. App. P. 4(a). Additionally, Petitioner, unlike the defendant 

in Roy Thomas Rogers, has asked this Court to waive the timely filing of the notice of 

appeal. In this case, we waive the timely filing of the notice of appeal in order to resolve 

Petitioner’s issues.
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B. Post-Conviction Standard of Review

Post-conviction relief is available for any conviction or sentence that is “void or 

voidable because of the abridgment of any right guaranteed by the Constitution of 

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to 

prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations 

by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d 

152, 156 (Tenn. 1999). On appeal, this Court will review the post-conviction court’s 

findings of fact “under a de novo standard, accompanied with a presumption that those 

findings are correct unless the preponderance of the evidence is otherwise.” Fields v. 

State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State, 

960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh or re-evaluate the 

evidence presented or substitute our own inferences for those drawn by the trial court. 

Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the weight and 

value to be given to testimony, and the factual issues raised by the evidence are to be 

resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing Henley, 960 

S.W.2d at 578). However, the post-conviction court’s conclusions of law and application 

of the law to the facts are reviewed under a purely de novo standard, with no presumption 

of correctness. Fields, 40 S.W.3d at 458.

C. Petitioner’s Decision Not to Appear or Testify at the Evidentiary Hearing

In denying relief, the post-conviction court specifically found that Petitioner’s 

refusal to attend the hearing and testify as to the basis for his claims of ineffective 

assistance of counsel led to the failure to meet the burden of proof and, ultimately, was 

the basis for the dismissal of the petition. Petitioner argues on appeal that his presence 

was not required at the hearing on the petition for post-conviction relief because “the 

petition did not raise substantial questions of fact as to events in which [he] participated.” 

The State disagrees, arguing instead that Petitioner’s presence was mandatory under the 

statute and that he failed to sustain his burden to support a grant of post-conviction relief 

without presenting evidence on his behalf.

The right to post-conviction relief is not a constitutional right; it is a creature of 

statute. See T.C.A. § 40-30-101 et seq; see also Serrano v. State, 133 S.W.3d 599, 604 

(Tenn. 2004) (citing Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992)). To initiate the 

process, a petitioner is required to file a written petition with the clerk of the court in 

which the conviction occurred, including “all known claims for relief and a full 

disclosure of the factual basis of each claim for relief.” Keough v. State, 356 S.W.3d 366, 

370 (Tenn. 2011) (emphasis in original). The petitioner also must verify under oath the 

claims and factual allegations of the petition. T.C.A. § 40-30-104(d)-(e). The petitioner 

is required to present clear and convincing proof of all factual allegations at an 
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evidentiary hearing on the petition. T.C.A § 40-30-110(f). Embedded within the Postconviction Procedure Act is a provision which “contemplates that the petitioner’s 

testimony will be necessary to satisfy this burden of proof.” Keough, 356 S.W.3d at 370

(citing T.C.A. § 40-30-110(a)). Specifically, Tennessee Code Annotated section 40-30-

110(a) provides:

The petitioner shall appear and give testimony at the evidentiary hearing if 

the petition raises substantial questions of fact as to events in which the 

petitioner participated, unless the petitioner is incarcerated out of state, in 

which case the trial judge may permit the introduction of an affidavit or 

deposition of the petitioner and shall permit the state adequate time to file 

any affidavits or depositions in response the state may wish.

See also Tenn. Sup. Ct. R. 28 § 8(C)(1)(b) (“Petitioner shall testify at the evidentiary 

hearing if the petition raises substantial issues of facts, unless petitioner is incarcerated 

out of state.”).

“All that due process requires in the post-conviction setting is that the defendant 

have ‘the opportunity to be heard at a meaningful time and in a meaningful manner.’” 

Stokes v. State, 146 S.W.3d 56, 61 (Tenn. 2004) (quoting Mathews v. Eldridge, 424 U.S. 

319, 333 (1976)). Our supreme court had held that if a petitioner is “given the 

opportunity to present proof and argument on the petition for post-conviction relief,” he 

has received a full and fair hearing. House v. State, 911 S.W.2d 705, 712 (Tenn. 1995). 

This Court has determined that a petitioner who chooses “not to avail himself of that 

opportunity” can “effectively [waive] his right to a post-conviction proceeding.” David 

Avery v. State, No. M2011-02625-CCA-R3-PC, 2012 WL 6570737, at *5 (Tenn. Crim. 

App. Dec. 17, 2012), perm. app. denied (Tenn. Mar. 20, 2013).

Of course, in order to establish ineffective assistance of counsel, a petitioner must 

demonstrate that counsel’s representation fell below the range of competence demanded 

of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under 

the two prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a 

petitioner must prove that counsel’s performance was deficient and that the deficiency 

prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408 (Tenn. 2002). Because 

a petitioner must establish both elements in order to prevail on a claim of ineffective 

assistance of counsel, “failure to prove either deficient performance or resulting prejudice 

provides a sufficient basis to deny relief on the claim.” Henley, 960 S.W.2d at 580. 

As previously noted, Petitioner was not present at the evidentiary hearing. A 

similar situation presented itself to this Court in Donald Ragland v. State, No. W2012-

00743-CCA-R3-PC, 2013 WL 967769, at *4 (Tenn. Crim. App. Mar. 8, 2013), perm. 

app. denied (Tenn. July 12, 2013). In Donald Ragland, the petitioner raised allegations 
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of ineffective assistance of counsel and was actually present at a post-conviction hearing 

but refused to testify. On appeal from the denial of post-conviction relief, the petitioner 

argued that the post-conviction court erred by not forcing him to testify. Id. at *4. This 

Court determined:

[t]he Petitioner’s argument runs contrary to both the letter and the spirit of 

the Post-Conviction Procedure Act. The Post-Conviction Procedure Act 

places a high burden on the petitioner to prove all allegations of fact by 

clear and convincing evidence. As such, it requires a petitioner to testify ‘if 

the petition raises substantial questions of fact as to events in which the 

petitioner participated.’ [T.C.A.] § 40-30-110(a). This requirement is a 

logical extension of the burden that petitioners prove their factual 

allegations by clear and convincing evidence and it is designed to prevent 

petitioners from attempting to circumvent that burden by withholding 

evidence only they can provide. A petitioner may refuse to testify and risk 

the consequences of such a decision. However, a petitioner’s knowing and 

voluntary decision not to testify at a[n] evidentiary hearing does not 

invalidate the entire post-conviction proceedings. To hold otherwise would 

require this [C]ourt to depart from sense and reason.

Donald Ragland, 2013 WL 967769, at *4. We find this reasoning persuasive. 

Here, post-conviction counsel attached to his amended petition merely an affidavit 

of trial counsel and a return on an unserved subpoena for a witness who, allegedly, would 

have exonerated Petitioner. There was no live testimony offered, and Petitioner was not 

present at the hearing. The post-conviction court ultimately determined that the petition 

should be dismissed on the basis of Petitioner’s failure to appear or testify at the hearing 

as mandated by Tennessee Code Annotated section 40-30-110(a). Now, on appeal, 

Petitioner is chiefly complaining about trial counsel’s failure to provide an alibi witness 

at trial—certainly a “substantial question of fact as to events in which [Petitioner] 

participated.” T.C.A. § 40-30-110(a). The trial transcript, included in the record on 

appeal, contained testimony only from witnesses for the State, none of whom claimed to 

see Mr. Parker at the scene of the accident. Petitioner did not testify at trial or at the postconviction hearing that he was not the driver of the car. In addition, he failed to present 

any witnesses at the post-conviction hearing to indicate otherwise.1

To grant Petitioner’s requested relief on such thin post-conviction proceedings, 

particularly when Petitioner is to prove all allegations of fact by clear and convincing 

 

1 We acknowledge Petitioner’s argument that the post-conviction court improperly failed to grant 

a continuance to allow Petitioner to secure the attendance of Mr. Parker. We will address this issue 

below.
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evidence, would require this Court to “depart from sense and reason.” Donald Ragland, 

2013 WL 967769, at *4. The record does not preponderate against the post-conviction 

court’s determination that by failing to testify or present any evidence at the hearing with 

regard to the alibi witness, Petitioner has failed to satisfy his burden. 

Likewise, the only proof at the hearing with regard to trial counsel’s failure to file 

a motion for new trial is the mere affidavit of trial counsel attached to the amended 

petition for post-conviction relief. We acknowledge that, in some cases, counsel’s failure 

to file a timely motion for new trial may be “so deficient that it becomes presumptively 

prejudicial.” Wallace v. State, 121 S.W.3d 652, 657 (Tenn. 2003) (citing United States v. 

Cronic, 466 U.S. 648 (1984)). That is, “when ‘counsel entirely fails to subject the 

prosecution’s case to meaningful adversarial testing,’ the process becomes 

‘presumptively unreliable’ and proof of actual prejudice is not required.” Id. (quoting 

Cronic, 466 U.S. at 659). In Wallace, the Tennessee Supreme Court determined that 

counsel’s failure to file a timely motion for new trial constitutes “abandonment . . . at 

such a critical stage of the proceedings” and results in “the failure to preserve and pursue 

the available post-trial remedies and the complete failure to subject the State to the 

adversarial appellate process.” Id. at 658. However, the court “declin[ed] to adopt a per 

se rule regarding a trial counsel’s failure to file a motion for new trial,” instead adopting

the following test to determine when counsel’s deficiency is presumptively prejudicial: 

“[A] petitioner in a post-conviction proceeding must establish that he or she intended to 

file a motion for new trial and that but for the deficient representation of counsel, a 

motion for new trial would have been filed raising issues in addition to sufficiency of the 

evidence.” Id. at 659. 

Ordinarily, we would have no hesitation in concluding that trial counsel’s failure 

to file a motion for new trial on behalf of Petitioner was deficient performance, satisfying 

the first prong of the Strickland test. In this case, however, the only proof of trial 

counsel’s failure to file the motion was an affidavit from trial counsel attached to the

petition. Although “[a]ffidavits . . . available to the petitioner supporting the allegations 

of the [post-conviction] petition may be attached to it,” T.C.A. § 40-30-104(e), it is wellestablished that affidavits are generally inadmissible at evidentiary hearings:

An affidavit is ordinarily not admissible to prove facts in issue at an 

evidentiary hearing, because it is not subject to cross examination and 

would improperly shift the burden of proof to the adverse party. . . . 

Affidavits are generally not competent evidence unless provided by statute.

. . . As a general rule, a party is not permitted to create an issue of fact by 

submitting a[n] affidavit whose conclusions contradict a prior deposition or 

other sworn testimony.
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State v. Amy Jo Blankenship, No. M2002-01878-CCA-R3-CD, 2004 WL 508500, at *4 

(Tenn. Crim. App. Mar. 16, 2004) (quoting 3 Am. Jur. 2d Affidavits § 19 (2002))

(finding appellant’s affidavit alleging that the public defender’s office had coerced her 

into pleading guilty failed to fulfill her burden of establishing why her guilty pleas should 

be withdrawn pursuant to Tennessee Rule of Criminal Procedure 32(f)), perm. app. 

denied, (Tenn. Oct. 11, 2004); see also Kenneth Bartley v. State, No. E2011-01603-CCAR3-PC, 2013 WL 967737, at *15 (Tenn. Crim. App. Mar. 11, 2013) (determining the trial 

court improperly admitted and considered an affidavit as evidence at a post-conviction 

hearing), no perm. app. filed; State v. Ricky Brandon and Jimmy W. Brandon, No. 

M2002-00073-CCA-R3-CD, 2002 WL 31373470, at *3 (Tenn. Crim. App. Oct. 15, 

2002) (determining affidavits of appellants alleging facts supporting their ineffective 

assistance of counsel claims failed to fulfill their burden of proving the factual allegations 

by clear and convincing evidence), perm. app. denied (Tenn. Feb. 24, 2003). 

Furthermore, “affidavits are incapable of credibility assessment, which is oftentimes 

pivotal in determining ineffective assistance of counsel claims.” Amy Jo Blankenship, 

2004 WL 508500, at *4; Ricky Brandon, 2002 WL 31373470, at *3. Therefore, we will 

not consider the information contained in trial counsel’s affidavit in determining whether 

Petitioner established deficient performance for the failure to file a motion for new trial. 

Consequently, Petitioner is unable to establish the first prong of Strickland and is not 

entitled to post-conviction relief.

Furthermore, Petitioner also fails to establish that, but for trial counsel’s deficient 

performance, his motion for new trial would have contained issues in addition to 

sufficiency of the evidence. Wallace, 121 S.W.3d at 659. In his brief to this Court, 

Petitioner asserts that his “late-filed pro se motion for a new trial and request for 

transcript of the evidence demonstrate that [Petitioner] was desirous of seeking an appeal 

of his convictions and would have done so, but for the deficient representation of 

counsel.” Petitioner does not allege on appeal that he would have raised any issues other 

than sufficiency, instead pointing to the mere fact that he filed a motion for new trial as 

proof that he was desirous of seeking an appeal. The motion for new trial filed by 

Petitioner states:

(1) I was not told I could appeal a trial case

(2) ineffective assistance of counsel

(3) my witness was not subpoena to the court room

(4) I would like to testify for myself

(5) I am still in jail for this charg[e] I do not have access to any law book’s 

to help me with this

(6) I was not told about any motion I could file to help me

(7) my witness was allowed in the tr[ia]l

(8) with me in jail I could not go find my witness
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The post-conviction court determined that Petitioner’s pro se motion for new trial 

was not clear and “need[ed] to be flushed out” by testimony from the Petitioner because 

there were “factual assertions” in the petition that were unclear. Specifically, the postconviction court pointed to numbers (6), (7), and (8) in Petitioner’s motion because they 

raised substantial questions of fact as to events in which Petitioner participated. In other 

words, Petitioner was required to appear and testify at the hearing pursuant to Tennessee 

Code Annotated section 40-30-110(a). Implicit in this ruling is a determination that 

Petitioner failed to show that he would have raised issues other than sufficiency of the 

evidence on appeal. See Wallace, 121 S.W.3d at 659. We agree. While we recognize 

Petitioner filed the motion pro se, the statements and allegations contained within the 

motion need explanation. The mere fact that Petitioner filed an untimely pro se motion 

for new trial, without his testimony to explain the motion and the relief sought, did not 

satisfy the burden required under Wallace to establish prejudice. In other words, we 

agree with the post-conviction court that Petitioner has failed to satisfy his burden. 

Petitioner is not entitled to relief on this issue, in large part due to his absence at the 

hearing and his failure to present witnesses to support his position. Petitioner is not 

entitled to relief on this issue.

D. Denial of Continuance

Lastly, Petitioner complains that the post-conviction court erred by failing to grant 

a continuance so the court could issue a capias to secure Mr. Parker’s presence as a 

witness. The State argues that the post-conviction court did not abuse its discretion.

“[T]he granting or denying of a continuance is a matter which addresses itself to 

the sound discretion of the trial judge.” Moorehead v. State, 409 S.W.2d 357, 358 (Tenn.

1966) (citing Bass v. State, 231 S.W.2d 707 (Tenn. 1950)). An abuse of discretion is 

demonstrated by showing that the failure to grant a continuance denied the defendant a 

fair trial or that it could be reasonably concluded that a different result would have 

followed had the continuance been granted. State v. Hines, 919 S.W.2d 573, 579 (Tenn.

1995) (citing State v. Wooden, 658 S.W.2d 553, 558 (Tenn. Crim. App. 1983)). “The 

burden rests upon the party seeking the continuance to show how the court’s action was 

prejudicial. The only test is whether the defendant has been deprived of his rights and an 

injustice done.” State v. Goodman, 643 S.W.2d 375, 378 (Tenn. Crim. App. 1982) 

(citing Baxter v. State, 503 S.W.2d 226, 228 (Tenn. Crim. App. 1973)).

Post-conviction counsel asked for a continuance to secure the attendance of Mr. 

Parker at the hearing. The affidavit of trial counsel, submitted at the hearing, indicated 

that there were issues in securing Mr. Parker’s presence at trial. In fact, trial counsel 

claimed he learned “indirectly” that the witness was “refusing to testify” for Petitioner at 

trial almost two years prior to the hearing on the post-conviction petition. Additionally, 

post-conviction counsel acknowledged that he had attempted to secure Mr. Parker’s 
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presence for approximately four months prior to trial yet waited until the day of the 

hearing to ask for a continuance. The post-conviction court determined that a decision on 

the motion for a continuance was not necessary based on Petitioner’s failure to attend or 

testify at the post-conviction hearing. Because we have determined Petitioner is not 

entitled to post-conviction relief, in great part due to his own failure to attend and testify 

at the hearing, we decline to find that the post-conviction court abused its discretion in 

denying a continuance. Petitioner is not entitled to relief on this issue.

Conclusion

For the foregoing reasons, the judgment of the post-conviction court is affirmed. 

____________________________________

TIMOTHY L. EASTER, JUDGE