# FILED

December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE NOVEMBER 1997 SESSION

RICKY LEE WOMAC, ) ) C.C.A. No. 03C01-9608- CR-00294 Appellant, ) ) McMinn County V. ) ) Honorable Mayo L. Mashburn, Judge ) STATE OF TENN ESSEE, ) ) (Post-Conviction) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: Ricky Lee Womac, Pro Se John Knox Walkup Northeast Correctional Center Attorney General & Reporter P.O. Box 5000 Mountain City, TN 37683 Peter M. Coughlan Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 Jerry N. Estes District Attorney General 203 E. Madison Avenue P.O. Box 647 Athens, TN 37371

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMM ERS, Judge

O P I N I O N-2- The appellant, Ricky Lee Wom ac, was convicted of facilitation to commit first degree murder. On di rect appeal his convic tion was affirmed by this Court. Thereafter, the appellant filed a petit ion seeking post-conv iction relief. The trial court summarily dismis sed the petition without an evidentiary hearing finding the allegations, even if tak

en as true, did not state a cl aim upon which relief coul d be granted. A

pproximate ly forty-

seven days

after the tri al court’s

dismissal

became final, the appellant filed a notice of appeal to this C ourt. Upon r

eview, w e affirm.

The state argues that the appell ant did not timely file his notice of appeal in accordance with T.R.A.P. 4(a). Therefore, the state conte nds this appeal is time barred. We agree that the appellant did not timely file his notic e of appeal. However, we see no prejudice accruing to the state in considering the appellant’s allegations. Therefore, in the interest of justice, we waive the appellant’s untimely filing. State v. Mullins , 767 S.W.2d 668 (Tenn. Crim. App. 1988).

The appellant alleges that he r eceived ineffective assis tance of counsel. Specifically, he claims that his trial counsel communicated to him throu gh his mother, failed to investigate allegations that he had been be aten by jail officials, and failed to pursue claims of an il legal investigat ion of the crime scene.

It is well settled that a clear but patently nonmer itorious petition may be dismissed summarily. Martucci v. State , 872 S.W.2d 947 (Tenn. Crim. App. 1993). A petition which is unclear to the extent that it cannot be so dismiss ed requires the appointment of couns el. Id. at 949. If the appointed counsel determines that the appellant has a valid ground to proceed, he or she should file an amended petition. Id. Tenn. Code Ann. § 40-30-206(f) stat es that:

Upon receipt of a petition in pr oper form, or upon receipt of an amended petition, the court sha ll examine the allegations o f fact in the petition. If the facts alleged, taken as true, fail to show that the petitioner is entitled to relief or fail to show that the claims for relief have not been waived or previously1 Although the tri al transcript i s not before us, we note that the post-con

viction hearing j udge also presided over the appel lant’s trial . In his writt en order dismissing the appel lant’s petit ion, he stated that he had

reviewed the 1,411 page reco rd of the appellant ’s trial. He found that the appellant’s att

orney filed 16 pret rial motions on the appe llant’s behalf. Furthermore, he stated t hat the appellant’s att

orney “demonstrated a degree o f preparation equal t

o or above any defense attor ney this Court has encountered in 10 years of try

ing criminal cases.” -3- determined, the petition shall be dismissed. The order of dismissal shall set forth the court’s conclusions of law. Tenn. Code Ann. § 40-30-206 (Supp. 1996 )
Upon review of the petition, we find that the appellant’s petition is artfu lly drafted. It alleges unambiguous claims as well as the facts to support the se claims. Therefore, it is proper for summary disposition if the trial court correctly determines that the claims do not allege grounds upon w hich relief can be granted.

The appellant’s allegation regarding his alleged beating by jail officials occurred after his trial

and convictions. The tri al court was correc t in finding that this allegation is i rrelevant in determini ng whether the appellant received effective trial representat ion. The appellant also alleg es that his trial attorney communicated with him throug h his mother. He does not all ege that his attorney failed to communicate with him; he simply objects to the attorney’s channel of communication. This claim fails to allege any harm or prejudice suff ered by this type of consultation. Nex t, the appellant alleges tha t “although the subject [th e illegal investigation of the crime scene] was presented at trial, counsel refused to pursue the subject in the Court of Criminal Appeals.” This allegation clearly illustrates the appellant’ s dislike of the outcome concern ing this issue, but does not prove that he received ineffective assistance of counsel. 1

Upon consideration of the appellant ’s issues, this Court

finds that the trial court was correct i n summarily disposing of the appellant’s petition. N one of the-4- allegations, even if pr

oven true, would demonstr ate that the appellant receiv ed ineffective assistance of counsel.

AFFIRMED

________________________________ PAUL G. SUMMERS, Ju dge

CONCUR:

______________________________ JOSEPH B. JONES, Presiding Judge

______________________________ J. CURWOOD WITT, JR., Judge