# FILED
October 15, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE SEPTEMBER SESSION, 1998

RONALD BR

ADFORD WA

LLER,) ) No. 03C01-9702-CR-00054 Appellant ) ) HAMILTON COUNTY vs. ) ) Hon. DOUGLAS A. MEYER, Judge STATE OF TENN ESSEE, ) ) (Post-Conviction) Appellee )
For the Appellant : For the Appellee : Ronald B. Waller, Pro Se John Knox Walkup S.T.S.R.C.F. #205287 Attorney General and Repor ter Rt #4, Box 600 Pikeville, TN 37367 Ellen H. Pollack Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493
William H. Cox III District Attorney General C. Leland Davis Asst. District Attor

ney General Suite 300, Courts Building Chattanooga, TN 37402

OPINION FILED: REMANDED
David G. Hay

es Judge1 The appellant ’s convict ions ari se from the January 9, 1991, murder of Chat tanooga residen t Harold J ewell. The appellant h ad acc epted a r ide with M r. Jewell wh ile hitchhiking on I75. The two m en proc eeded to a hotel an d then to M r. Jewell’s B eaver C reek a partm ent. Allegedly, Mr. Jewel l made homosexual advances towards t he appellant . A struggl e ensued, resulting in th e appe llant beating M r. Jewell an d virtually sever ing Jewe ll’s neck w ith a bread knife. Before leavi ng the apartment, the appell ant gathered some money, prescripti on medication, and som e jew elry of t he vic tim’s . He th en lef t the a partm ent a nd dr ove to his m othe r’s re side nce in Port Ritch ie, Florida in the victim’s C hevrolet Im pala. See State v. Waller , No. 03C01- 9212- CR00429 (Tenn . Crim. A pp. at Kno xville, Oct. 6, 1 993), perm. to appeal de nied , (Tenn. Feb. 7 , 1994).
2 On direct appeal , the appel lant argue d that t he evidence was i nsuffici ent to support the verdicts; that h e was prejudice d by the del ayed admission of alleged ho mosexual conduct on the part of t he deceased; that his convi ctions for

first degree murder and especial ly aggr avated robbery violate double jeopardy; and that consecutive sentencing was not prope r. 2 OPINION
The appellant, Ronald Bradford Waller, appeals the Hamilton County Criminal Court’s dis missal of his petition for post-conviction relief. In A pril 1992, the appellant was convic

ted of two counts of first degr ee murder, one count of especially aggr

avated robbery, and one co unt of theft of property over one thousand dollars. 1 These convictions resul ted in the imposition of a sentence o f life plus twenty-three year

s. This court affirmed the appellant’ s convictions and sentenc es on direct appeal, finding his allegations without

merit. 2 State v. Waller , No. 03C01- 9212-CR-00429 (Tenn. Crim. Ap p. at Knoxville, Oc t. 6, 1993), perm. to appeal denied , (Tenn. Feb. 7, 1994). He is currently confined at Southeas tern Tennessee State Regional Correct ional Facility in Pikeville.

After review of the vol uminous record before this cour t, we remand to the trial court for further proceedings consistent with this

opinion.
Background
On May 10, 1996, the appellant filed a petition for post-conv iction relief. Within the appellant’s ninety-one page pro se petition, he raises ten g eneral grounds for post-conviction rel ief; specifically, he enumerat es over ninety separ

ate grounds upon which relief should be granted. Although the trial court subsequently3 The appellant ’s pro sebrief i s fift y-one pages i n length. Counsel’s br ief is thirt y-nine pages. 3 appointed counsel, the case proc eeded on the pro se

petition without amendment. An evidentiary hearing was held on the petition on November 13, 1996, and January 27, 1997. On March 17, 1997, the tr ial court denied the appellant post-conviction relief. Although no specific findings of fact were recited by the trial court, the trial court’s o rder dism issing the petition provides in its entire ty: 1. It is not double jeopardy for a defendant to be found guilty of premeditated murder and felony murder. 2. There

was no proof of i mproper grand j ury pr

oceedin gs, den ial of a speedy trial, prosecut

orial misconduct, abuse of disc retion/lack of control over proceedings, miscarriage of justi ce, and judicial conspira cy. 3. The issue of reasonable doubt/insufficient evidence was predetermined by the Court of Criminal Appeals on direct appea l. 4. The proof shows that petitio ner received effective ass istance of counsel from Hank Hill. But, assuming for the sake of discussion, that he did not, there is no show ing of any reasonable probabi lity that the result would have been different. 5. The effect of other errors, even considered cum ulatively, are harmless. The appellant filed a timely noti ce of appeal of the trial court’s ruling. After the appellant’s brief was filed on January 30, 1998, but pr ior to the case being docketed for appellate revie w, post-convicti on counsel was permitted t o withdraw by this court due to a conflict created by her acceptance of a positio n with the public defender’s office, who had represent ed the appellant at trial. See Waller v. State , No. 03C01-9702-CR-00054 (Tenn.Crim. App. at Knoxvi lle, Feb. 20, 1998). The State filed its response to the appellant’s brief on April 17, 1998. By order dated June 16, 1998, this court order ed that the transcript of the appel lant’s trial be consolidated with the pr esent record for purposes of this appeal. See Wall er v. State , No. 03C01-9702-CR-00054 ( Tenn. Crim. App. at Knoxvi lle, Jun. 16, 1998). On June 22, 1998, this court ordered that the appellan t’s pro se brief be filed as a supplement to the brief submitted by counsel. 3 See Waller v. State , No. 03C01-4

9702-CR-000545 (Tenn. Crim. App. at Knoxville, Jun. 22, 1998).

The collective iss ues raised by the a ppellant in the two briefs allege constitutional error r

equiring revers

al based upon: (1) fatal var iance between indictment and proof; (2) var ious claims of double jeopardy ; (3) numerous claims of prosecutorial misconduct; (4) various alleg ations of the trial court’s failure to maintain control over the court room; (5) approx imately thirty-tw

o grounds alleging ineffective assistance of counsel; (6) the cumulat ive error of all due process violations; (7) deni al of equal protection of the law ; (8) unconstitutional des truction of grand jury records ; and (9) an unconstitutional reasonable doubt jury i nstruction.

Analysis
Without reaching the merits of the appellant’ s petition, we find it nec essary to remand this cause to the trial court as the posture of this c ase, the lack of adequate findings of fact and conclusions of la w by the trial cour

t, and the State’s failure to respond to the supplemental brief pr event us from completing any kind of meaning ful revie w.
First, the trial cour

t failed to enter any discer nible findings of fact and conclusions of law as r equired by Tenn. Code Ann. § 40-30-211 (1996 Supp.). In particular, the court’s

findings are merely co nclusions without any factual support, the court failed to address all issues raised by the appellant, and the court’s or der suggests the presence of er rors in the record w

ithout specifically namin g them. See supra Background . Tenn. Code Ann. § 40-30-211 prov ides that “[u]pon dispositi on of every petition, the co urt shall enter a final order, and . . . shall set forth in the order . . . all grounds presented , and shall state the findings of fact and conclusions of law with regar

d to each such ground .” (Emphasis added). The duty to enter5

findings of fact and conclusions of la w as to each ground all eged is mandatory as the appellate courts may onl y review the findi ngs of the trial court. See Brown v. State , 445 S.W.2d 669, 671 (1969). Not only do the t rial court’s findings facilitate appellate review, but , in many cases, are neces sary for such revie

w. See Tate v. State , No. 02C01-9108-CR-00170 (Tenn. Crim. App. at Jackson, May 20, 1992 ), perm. to appeal denied , (Tenn. Sept. 14, 1992).
In the absence of oral findings, the failure of the trial court t o include its findings of facts in its order dismissing the petitio n requires revers al of the order. Brown , 445 S.W.2d at 671; State v. Higgins , 729 S.W.2d 288, 290- 291 (Tenn. Cr

im. App. 1987). Moreover, w here questions of law ar e presented negating the need for the finding of fact, the trial cour t must still show all

grounds presented and the conclusions with regard to each of them. Little v. State , 469 S.W.2d 537, 538 (Tenn. Crim. App. ), perm. to appeal denied , (Tenn. 1971). In the present c ase, the trial court failed to enter any findings of fact as they relate to the appellant’s v arious claims for relief. See supra Background . Additionally, the tr ial court failed to enter conclusions of law as to all grounds presented. Id . Where the trial court fails to make “a clear and detailed findi ng of fact,” either orally or on the record, the appellate court is “at a c omplete loss to know the bas is of the trial judge’s decision and judgment; assignments of error [now issues] and appellate review are seriously frustrated if not completely thwarted by lack of a definitive finding of fact by the t rial judge.” Brooks v. State , No. 03C01-9507-CR-00204 ( Tenn. Crim. App. at Knoxvi lle, Oct. 9, 1996) (cit ing Brown , 445 S.W.2d at 671).

To further f rustrate our review of the proceedings before us, we ack nowledge the disarrayed presentati on of issues created by the s upplementation of the appellant’s pro se

brief to the record. The tw o briefs cannot be reconciled. The pro
se brief not only expands the grounds alleged in cou nsel’s brief but also prov ides duplicitous and often confusing ar gument when compared to counsel ’s brief. As6

illustration, the pro se

brief al leges t

wo gro unds not

allege d in coun sel’s b rief, neglects two ground s alleged in counsel’s brief, and, specifically,to the claim of ineffective assistance of counsel, raises five additiona l grounds not alleged in counsel ’s brief. We no te that t he bette r procedu re, faci litating a ppellat e review, would be to submit only one merged brief addressing all issues.

For these reasons, this c ause is remanded solely for the purpose of permitting the trial c

ourt to enter its findings of facts and conclusions of law a s to each ground alleged in the appe llant’s petition. No further filings or supplemental pleadings by either par ty shall be permitted at the post-conviction lev el. Once the trial court enters its

order, the appellant may be appointed counsel for purposes of appeal, if he so desires. Irr espective of his position regarding counsel, onl y one brief to this court will be permitted. The briefs previously filed by the parties in this appeal will not be consi dered.
Accordingly, the judgment of the trial court is reversed and remanded in order to permit the trial court to revisit the grounds raised by the appellant in his original petition, and, thereafter, enter findings of fact and c onclusions of law as required by the Post-Conviction Act. Purs uant to Tenn. R. App. P. 29(a), onc e the record ha s been fi led with th e clerk of this court , the app ellant sh all have th irty days in which to file his appel late brief.

____________________________________ DAVID G. HAYES, Jud ge7

CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ JOSEPH M. TIPT ON, Judge