# FILED February 10, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON AUGUST SESSION, 1998
ZIP GILLE SPIE, ) C.C.A. NO. 02C01-9703-CR-00088 ) Appe llant, ) ) ) SHELBY COUNTY VS. ) ) HON. J OHN P. C OLTON STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conv icti on)

FOR THE APPELLANT : FOR THE APPELLEE : PAMELA J. DREWERY JOHN KNOX WALKUP 416 E. L afayette S t. Attorney Generaland Reporter P. O. Box 3267 Jackson, TN 38303 DOUGLAS D. HIMES Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 WILLIAM L . GIB BONS Distri ct Attorney General ROBERT CARTER Assistant Distri ct Attorney 201 Poplar Avenue Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION Appellant

Zip Gill espie was found guil ty of second degree murderand was sentenced as a R ange II multip le offen der to th irty years in prison . In this appe al, Appellant

challe nges the po st-con viction c ourt’s den ial of his peti tion for post-conv iction relief

as well as t he trialcourt’s determinati on of his sentence, presen ting the follow ing issue s for review : 1) whether the post-convict ion court e rred in proceedi ng to an evidentiary hearing on Appell ant’s pro s e petiti on; 2) wheth er the p ost-co nviction court e rred in c onclu ding th at App ell an t receive d effec tive ass istanc e of co unse l at trial; 3) whether thepost-convi ction court err ed in fai ling to determine whether Appellant waived his ri ght to counselat his sentencing heari ng; and 4) whether t he trialcourt err ed in determi ning Appellan t’s sentence.
After a revi ew of therecord, we affi rm the j udgments of the cour

ts bel ow.

I. FA CTS

On November 5, 1991, Appellant was indicted for second degr ee murder. Subseq uently, the Shelby C ounty P ublic De fender’s O ffice was a ppointe d to represent

him. A tri al ensue d and Ap pellant was convicte d of second degree murder. Counse l for Appellant filed a timely m otion for a new trial. Tw o days later, Ap pell ant filed a mo tion to p rocee d pro s e and the trial c ourt gr anted his reques t. The Ap pellant then filed a pro se “petit ion for new tr ial ,”but

at t he t ime of sente ncing , he with drew h is pro s e mo tion an d relied on the motio n filed b y his formercounsel. The t rial cour t overrul ed the motion an d the Appellant f iled a timely, p ro se n otice o f appe al.-3- In the initial app eal ofthe convic tion thi s Court remanded the case to t he trialcourt for

app oi ntmen t of couns el on direc t appea l. State v. Gilles pie , 898 S.W.2d 738 (Tenn. Crim. App. 1994). Counsel was appointed and t he ap pea l proceeded, with theso le issue bei ng whether ther e was suffi cient evi dence of self-defense to warran t an acqu ittal. State v. Zip G illespie , No. 02C01- 9302- CR00024, 1995 WL 454030, at *2 (Tenn. Cri m. App., Jackson, Aug. 2, 1995 ). This Court held th at this is sue had no merit and af firmed the j udgment of the t rial court. Id. at *4.

On September

18, 199 5, Ap pellant file d a pro se peti tion for post-convi ction relief, presenting a myriad of al legations . Counsel was appoi nted , and evidentiary hearing s were h eld on Ju ne 27, Ju ly 19, and July 22, 1 996. The post-convi ction court found that after removing “mere rhetoric”from the twen tytwo overlappi ng a nd repetit ive clai ms in Appellant ’s pro se pet ition, the petition basic ally made three all egations t hat Appellant had recei ved ineffective assistance of couns el at trial: 1) trialcounsel fai led to i nvestigate witnesses and call them on Appellant ’s be half, 2) trial couns el failed to arg ue a the ory of selfdefense, and 3) couns el failed to present certain phy sical ev idence support ing the claim of self-d efens e. On Septe mbe r 6, 199 6, the p ost-co nvic tion court denied the petition, fi nding that Appellant had fail ed to prove t he allega tions in his petiti on by clear and co nvincing evidenc e. Specifically, the court found that trial counsel had inves tigated witnes ses a nd m ade le gitima te strate gic de cision s in not calling certa in witness es, coun sel had c arefully articu lated a the ory of selfdefen se at tri al, and counselwas not defi cient i n the decisi on to refr ain from introducin g certain p hysical evid ence in th e 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 t hat failed to make a colorabl e claim when the petiti oner was given both the aid of counsel and a reasonable opportunit y to amend the petiti on 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). -4- II . PROCE EDING ON THE PRO SEPETI TION
Appellant

contends that

the post-convicti on c ourt erred in procee ding to th e evidentiary hearing on the pro se petit ion. Speci fically, Appell ant clai ms that the pro se petiti on was so inade quate th at the cou rt should h ave requ ired coun sel to amend the petition before pr oceeding to t he e videntia ry hearing. How ever, Appellant

fails to cite any authori ty that supports t his content ion. Appell ant relies only on Swanso n v. State , 749 S.W.2d 731 (Tenn. 1988) and Martuc ci v. State , 872 S.W.2d 947 (Tenn. Crim. App. 1993). However, this rel iance is misp laced. These decisionsheld that it is improper

for a po st-con viction c ourt to s umm arily dismiss a pro se pe tition tha t prese nts a c olorab le claim without t he appointment of counsel to amend thepetiti on under former Tennessee Code Annotated §§ 40- 30-101 etseq. 1 In this ca se, Ap pellan t’s petitio n was not su mm arily dismissed. Indeed, the post-conviction court appointed counsel to r epresent Appell ant at the evidentiary hearing which las ted for thre e days. Further, t he cour t heard testimony

from six witnesses, i nc luding testi mo ny from Ap pellant on all three da ys of the hearing. T he court spec ifically ad vised A ppella nt that h e wou ld be able to testify as to all of his a llegations . At the co nclu sion of his redirect testim ony, Appellant an d his counse l engaged in th e following colloquy:

Q: [Appe llant’s couns el] All right. Mr. Gill espie, so we’ve gone over al l the things t hat you wanted to get in? A: [Appellant] Yes , sir.-5- T his was clearl y not the t ype of summary dismi ssal wit h which th e Swanson and Martucci courts w ere con cerned . This issu e has n o merit.

III . INEFFE CTIVE ASSI STANCE OF COUNSEL
Although Appellant’ s Brief i s somewhat un clear o n this poi nt, Appell ant basic ally contends that the pos t -convict ion court’ s denial of relief was error because Appellant had in fact r eceived ineffective assistance of coun sel at tria l. In post-convi ction proceedings, t he App ellant b ears the burden of proving t he allegati ons raised in the pet ition by clear and conv incing evi dence. Tenn. Code Ann. § 40-30 -210(f) (1997). See also Scott v. Sta te , 936 S.W.2d 271, 272 (Tenn. Cri m. A pp. 19 96). M oreov er, the tr ial cou rt's findin gs of fa ct are c onclu siv e o n appea l unle ss the evid ence p repond erates a gainst the judgm ent. Tidwell v. State , 922 S.W .2d 497 , 500 (T enn. 19 96). T he bur den of establ ishing t hat the evidence prepon derates otherwis e is on the petitioner. H enley v. State , 960 SW .2d 572, 579 (Tenn. 199 7).

This Cou rt reviews a claim of i neffective assistance of counsel un der the standardsof Baxter v . Rose , 523 S.W.2d 930 (Tenn.1975), and Strickland v. Washington , 466 U.S. 66 8, 104 S. Ct. 20 52, 80 L. Ed.2 d 674 (1 984). The petiti onerhas the burden or provi ng that (1)the attorney’s performance was deficient, and (2) thedefici ent performance resulted i n prejudice to the defendant
so as to d eprive him o f a fair trial. Strickl and , 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State , 938S.W.2d 3 63, 3 69 (Te nn. 199 6). The test in Tennessee for determiningwhether couns el p rovide d effec tive ass istanc e is wh ether h is performance was withi n the rang e of co mpe tence dem ande d of atto rneys in-6-

cr iminal cases. Baxter , 523 S.W.2d at 936. The pet itioner must overcome th e presumption that couns el's con duct fa lls within the wid e rang e of ac cepta ble professiona l assistan ce. Strickl and , 466 U.S. at 689, 104 S. Ct. at 206 5; Alley v. State , 958 S.W .2d 138, 149 (Tenn. Crim . App. 1997 ).

In this cas e, App ellant h as faile d to es tablish that the evid enc e preponderatesagainst the post-convicti on court’s findingthat Appell ant receiv ed effective assistan ce of cou nsel at t rial. In deed, in h is brief, App ellant fails to make any argument that trial counsel ’s performance was deficient or that Appellant

was somehow prejudicedthereby. Nor does Appe llant’s b rief con tain
a ny arg ume nt that

chall enges the p ost-con vict ion cour t’s f inding s. Ind eed, we hold that after a revi ew of the recor d and the pleadi ngs, there i s substanti al evidence to support the post-convi ction co urt ’s fi nding that Appellant r eceived effective assi stance of counsel. This issue i s meritless.

IV. FAI LURE TO ADDRES S LACK OF COUNSE L AT SENT ENCING
Appellant

conte nds th at the p ost-co nviction court c omm itted rev ersible
error in failing to dete rmine w hether h e waived his right to co unsel at h i s sentencing hearing. The State argues t hat A ppellant has waived thi s issue because he fail ed to raiseit inhis direct appeal. We agree.

When viewing t he assortment of claims contai ned i n Appe llant’s postconvicti on petiti on, it i s diffi cult to determine whether he everasked the court to consider

this claim. H oweve r, even if he d id, th e court c orrectly de clined to address this issue b ecaus e it has be en waive d. See Tenn. Code Ann. §§-7-

40-30-206 (g), -210(f). Th ese pro visions of t he Post -Conviction Procedure Act provide, in perti nent part, that “[a] grou nd for re lief i s waived if the petit ioner perso nally or throug h an attorney failed to present it for determination i n any proceeding before acourt of com peten t jurisdic tion in w hich th e grou nd co uld have been p resente d.” Ten n. Cod e Ann. § 40-30-206 (g). Further, “[t ]here is a rebutta ble presum ption that a groun d for relie f not rais ed in a court of competent jur isdict ion in which th e groun d could h ave bee n prese nted is wa ived.” Tenn
. Code Ann. § 40-30 -210(f). In this case, there is no good reason for the fail ure of Appellant

and his appointed coun sel t o raise this i ssue in Appellant’s di rect appeal. I ndeed, no reason i s given. Ther efore, t his issue has

been waived.

Even if this issue had not been waived, Appellant cannot seek revi ew of the le n gth of a se ntenc e in a p ost co nviction proce eding unles s the s enten ce is illegal. See Andre a Jone s v. St ate , No. 02C01-9603-CR-00084, 1997 WL 68330, at *1 (Tenn. Cri m. App., Jackson, Feb. 20, 1997) (citingTenn. Code Ann. § 40- 35-401(a) (1989)). Indee d, App ellant c once des in his bri ef that “ post-convi ction is not the proper ve hicle for asking for a review of sentence.”

According ly, the j udgments of t he cou rtsbelow are A FFIRMED.

____________________________________ JERRY L . SMI TH, J UDGE-8-

CONCUR:

___________________________________ DAVID H. WELLES , JUD GE

___________________________________ JOHN K. BYERS, SENIORJUDGE