FILED

February 10, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1998

ZIP GILLESPIE, ) C.C.A. NO. 02C01-9703-CR-00088

)

Appellant, )

)

) SHELBY COUNTY

VS. )

) HON. JOHN P. COLTON

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

PAMELA J. DREWERY JOHN KNOX WALKUP

416 E. Lafayette St. Attorney General and Reporter

P. O. Box 3267

Jackson, TN 38303 DOUGLAS D. HIMES

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

WILLIAM L. GIBBONS

District Attorney General

ROBERT CARTER

Assistant District Attorney

201 Poplar Avenue

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

Appellant Zip Gillespie was found guilty of second degree murder and was

sentenced as a Range II multiple offender to thirty years in prison. In this appeal,

Appellant challenges the post-conviction court’s denial of his petition for

post-conviction relief as well as the trial court’s determination of his sentence,

presenting the following issues for review: 

1) whether the post-conviction court erred in proceeding to an evidentiary

hearing on Appellant’s pro se petition;

2) whether the post-conviction court erred in concluding that Appellant

received effective assistance of counsel at trial;

3) whether the post-conviction court erred in failing to determine whether

Appellant waived his right to counsel at his sentencing hearing; and

4) whether the trial court erred in determining Appellant’s sentence.

After a review of the record, we affirm the judgments of the courts below.

I. FACTS

On November 5, 1991, Appellant was indicted for second degree murder.

Subsequently, the Shelby County Public Defender’s Office was appointed to

represent him. A trial ensued and Appellant was convicted of second degree

murder. Counsel for Appellant filed a timely motion for a new trial. Two days

later, Appellant filed a motion to proceed pro se and the trial court granted his

request. The Appellant then filed a pro se “petition for new trial,” but at the time

of sentencing, he withdrew his pro se motion and relied on the motion filed by his

former counsel. The trial court overruled the motion and the Appellant filed a

timely, pro se notice of appeal.
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In the initial appeal of the conviction this Court remanded the case to the

trial court for appointment of counsel on direct appeal. State v. Gillespie, 898

S.W.2d 738 (Tenn. Crim. App. 1994). Counsel was appointed and the appeal

proceeded, with the sole issue being whether there was sufficient evidence of

self-defense to warrant an acquittal. State v. Zip Gillespie, No. 02C01-9302-CR00024, 1995 WL 454030, at *2 (Tenn. Crim. App., Jackson, Aug. 2, 1995). This

Court held that this issue had no merit and affirmed the judgment of the trial

court. Id. at *4.

On September 18, 1995, Appellantfiled a pro se petition for post-conviction

relief, presenting a myriad of allegations. Counsel was appointed, and

evidentiary hearings were held on June 27, July 19, and July 22, 1996. The

post-conviction court found that after removing “mere rhetoric” from the twentytwo overlapping and repetitive claims in Appellant’s pro se petition, the petition

basically made three allegations that Appellant had received ineffective

assistance of counsel at trial: 1) trial counsel failed to investigate witnesses and

call them on Appellant’s behalf, 2) trial counsel failed to argue a theory of selfdefense, and 3) counsel failed to present certain physical evidence supporting

the claim of self-defense. On September 6, 1996, the post-conviction court

denied the petition, finding that Appellant had failed to prove the allegations in his

petition by clear and convincing evidence. Specifically, the court found that trial

counsel had investigated witnesses and made legitimate strategic decisions in

not calling certain witnesses, counsel had carefully articulated a theory of selfdefense at trial, and counsel was not deficient in the decision to refrain from

introducing certain physical evidence in the case. 
1

There is nothing in th e curren t version o f the statute that require s a pos t-conviction court to

require a men dme nt of a pro se com plaint befo re it can pro ceed to an eviden tiary hearing. See Tenn.

Code Ann. § 40-30 -202 (1997). In addition, the Tennessee Su preme C ourt has upheld the dismissa l of a

pro se petition that failed to make a colorable claim when the petitioner was given both the aid of counsel

and a reasonable opportunity to amend the petition after counsel was appointed, and no amended petition

was pre pared o r filed. Gable v. State, 836 S.W .2d 558, 559–60 (Ten n. 1992).

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II. PROCEEDING ON THE PRO SE PETITION

Appellant contends that the post-conviction court erred in proceeding to the

evidentiary hearing on the pro se petition. Specifically, Appellant claims that the

pro se petition was so inadequate that the court should have required counsel to

amend the petition before proceeding to the evidentiary hearing. However,

Appellant fails to cite any authority that supports this contention. Appellant relies

only on Swanson v. State, 749 S.W.2d 731 (Tenn. 1988) and Martucci v. State,

872 S.W.2d 947 (Tenn. Crim. App. 1993). However, this reliance is misplaced.

These decisions held that it is improper for a post-conviction court to summarily

dismiss a pro se petition that presents a colorable claim without the appointment

of counsel to amend the petition under former Tennessee Code Annotated §§ 40-

30-101 et seq.1 In this case, Appellant’s petition was not summarily dismissed.

Indeed, the post-conviction court appointed counsel to represent Appellant at the

evidentiary hearing which lasted for three days. Further, the court heard

testimony from six witnesses, including testimony from Appellant on all three days

of the hearing. The court specifically advised Appellant that he would be able to

testify as to all of his allegations. At the conclusion of his redirect testimony,

Appellant and his counsel engaged in the following colloquy:

Q: [Appellant’s counsel] All right. Mr. Gillespie, so we’ve gone over all the

things that you wanted to get in?

A: [Appellant] Yes, sir.
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This was clearly not the type of summary dismissal with which the

Swanson and Martucci courts were concerned. This issue has no merit.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Although Appellant’s Brief is somewhat unclear on this point, Appellant

basically contends that the post-conviction court’s denial of relief was error

because Appellant had in fact received ineffective assistance of counsel at trial.

In post-conviction proceedings, the Appellant bears the burden of proving the

allegations raised in the petition by clear and convincing evidence. Tenn. Code

Ann. § 40-30-210(f) (1997). See also Scott v. State, 936 S.W.2d 271, 272 (Tenn.

Crim. App. 1996). Moreover, the trial court's findings of fact are conclusive on

appeal unless the evidence preponderates against the judgment. Tidwell v.

State, 922 S.W .2d 497, 500 (Tenn. 1996). The burden of establishing that the

evidence preponderates otherwise is on the petitioner. Henley v. State, 960

SW.2d 572, 579 (Tenn. 1997).

This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975), and Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984). The

petitioner has the burden or proving that (1) the attorney’s performance was

deficient, and (2) the deficient performance resulted in prejudice to the defendant

so as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064;

Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). The test in Tennessee for

determining whether counsel provided effective assistance is whether his

performance was within the range of competence demanded of attorneys in
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criminal cases. Baxter, 523 S.W.2d at 936. The petitioner must overcome the

presumption that counsel's conduct falls within the wide range of acceptable

professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Alley v.

State, 958 S.W.2d 138, 149 (Tenn. Crim. App. 1997).

In this case, Appellant has failed to establish that the evidence

preponderates against the post-conviction court’s finding that Appellant received

effective assistance of counsel at trial. Indeed, in his brief, Appellant fails to

make any argument that trial counsel’s performance was deficient or that

Appellant was somehow prejudiced thereby. Nor does Appellant’s brief contain

any argument that challenges the post-conviction court’s findings. Indeed, we

hold that after a review of the record and the pleadings, there is substantial

evidence to support the post-conviction court’s finding that Appellant received

effective assistance of counsel. This issue is meritless.

IV. FAILURE TO ADDRESS LACK OF COUNSEL AT SENTENCING

Appellant contends that the post-conviction court committed reversible

error in failing to determine whether he waived his right to counsel at his

sentencing hearing. The State argues that Appellant has waived this issue

because he failed to raise it in his direct appeal. We agree.

When viewing the assortment of claims contained in Appellant’s postconviction petition, it is difficult to determine whether he ever asked the court to

consider this claim. However, even if he did, the court correctly declined to

address this issue because it has been waived. See Tenn. Code Ann. §§
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40-30-206(g), -210(f). These provisions of the Post-Conviction Procedure Act

provide, in pertinent part, that “[a] ground for relief is waived if the petitioner

personally or through an attorney failed to present it for determination in any

proceeding before a court of competent jurisdiction in which the ground could

have been presented.” Tenn. Code Ann. § 40-30-206(g). Further, “[t]here is a

rebuttable presumption that a ground for relief not raised in a court of competent

jurisdiction in which the ground could have been presented is waived.” Tenn.

Code Ann. § 40-30-210(f). In this case, there is no good reason for the failure of

Appellant and his appointed counsel to raise this issue in Appellant’s direct

appeal. Indeed, no reason is given. Therefore, this issue has been waived.

Even if this issue had not been waived, Appellant cannot seek review of the

length of a sentence in a post conviction proceeding unless the sentence is

illegal. See Andrea Jones v. State, No. 02C01-9603-CR-00084, 1997 WL 68330,

at *1 (Tenn. Crim. App., Jackson, Feb. 20, 1997) (citing Tenn. Code Ann. § 40-

35-401(a) (1989)). Indeed, Appellant concedes in his brief that “post-conviction

is not the proper vehicle for asking for a review of sentence.” 

Accordingly, the judgments of the courts below are AFFIRMED.

____________________________________

JERRY L. SMITH, JUDGE
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CONCUR:

___________________________________

DAVID H. WELLES, JUDGE

___________________________________

JOHN K. BYERS, SENIOR JUDGE