# FILED
September 09, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT JACKSON JUNE 1996 SES SION

JERRY DORSE Y, ) ) Appellant, ) No. 02C01-9508- CR-00218

) ) Shelby Cou nty v. ) ) Honorab le W . Fred Axley, Judge ) STATE OF TENNESSEE, ) (Post-Conv iction) ) Appellee. )

DISSENTING OPINION
I respectfully

disagree w ith the resul ts reached in the majority opinion. I believe that a remand is unnecessa ry in that the denial of post-conviction relief should be affirmed on the merits

.

As a startin g point, I bel ieve that th e record is incomplete in a fashion that precludes us from barring the third post- convicti on petition as u ntimely fil ed. At the beginning of the evidentia ry heari ng, the follow ing exc hange occurr ed between the appellant’s counsel and the tr ial court:

COUNSEL: Just for the re cord, Your Honor, Mr . Dorsey had initially filed a pro se petit ion forpost -co nvi cti on r eli ef, which the first one w as dismissed without a he aring. He filed an amende d post-convictio n reli ef, which was given a new number; and that jacket has since been unable to be found. He fi led thi s one, whi ch was tec hnically beyond the years; but t h e court allowed us to proceed under the th ird number but under the act ual second filing . If thatmakes any sense. THE COURT: Y es. Sure. The state made no comment relative to this exc hange.1 I doubt thatthi s court may properl y r equir e such a l imit ati on. I f th e resul t of the hear ing were t o “reope n” t he fi rst case, i t i s wit hin t he tr ial court ’s di screti on to det ermine whethe r ju sti ce requi res accepti ng an amendm ent t o the cl aims. 2

It is apparent that a proceed ing occurred in the trial court in which it determined that the third petiti on could be maintai ned. However, that proce eding is not in the recor

d on appeal. Ord inarily , if the record on appeal fails to include the proceeding fro m which a t rial court enters a part icular ord er, we presume that the tri al court’s ruling was correct. I see no reason why the presumption does not control in this case, even though the issue of th e statute of limitation s was raised in this appeal by this court. Under

the presumption, the trial court’s rel ating the thi rd petition bac k to the second petition that was fil ed on September 19, 1989, removes the statute of limitat ions as a viabl e issue.

It follows, as well , that a remand for a hearing re lative to the first postconvicti on case is unc alled for. In fact, I note that the s tate’s respons ive pleadi ng in the trial cour t asserts that the first “p etition was not, in real ity, a peti tion for post-conviction relief but merel y a req uest for record s to explor e possible avenues for relief, w hich the State was not

required to furnish to the p etitioner.”If such is tr ue, a hearing upon
rema nd, l imit ed on ly to th e fir st pe titio n, wou ld be an ef for t in f util ity. 1 In any event, the appellant’s substantive compla ints were presented in an evidentiary hearing that is in the record before us. In this regard, the appellant asserts (1) that his guilty pleas were entered as a res ult of the ineffective assistance o f counsel, (2) that his pleas were not voluntari ly entered, and (3) that t he trial cour t erred in not

allowi ng him to be present at the second evi dentiary he aring in which hi s trial att orney testi fied.

The trial cour

t entered detail ed findings of fact and conclusions of law. Relativeto the ineffective assistance o f counsel, the tr ial court stated, in perti nent part, the fo llowing: Petitioner cla ims that counsel failed to file various

discover ymoti ons which would have assisted i n the3 preparation o f h is case. Pr oof offered at the post-conv iction hearing indicates that [counsel] had unrestric ted access to t he State’s evidence due to the Stat e’s open-file pol icy on disc overy. Thus, formal written motions requesting discovery w ere unnecessary . [Counsel] t estified that he conduc ted a thorou gh inv estigation of Petitioner’s f ile and reported his findin gs to Petitioner . Additionall y, [counsel ] testified that after a le ngthy di scussion w ith the Dist rict Attor ney’s office, h e determined that the State had v irtually an air-ti ght case. Discover y in this case was thorough, pr oper, and complete. Petitioner

alleges counsel failed to meet w ith him and keep him abreast of trial stra tegy. [Counsel] te stified he met with members ofPeti tion er’s f amil y, visited Petitioner once in jail, and met with Petitioner ev ery time t he case was

scheduled in court. Sinc e there wer e n o wi tnesses and Peti tioner had fully explain ed his ver sion of the cri me, [counsel] met w ith Petitioner

as necessary

to keep him updated on de velopments in the case. Petitioner’ s claim that [ counsel] failed t o meet with him and discuss trial developments is base less. Petition er alleges that counsel failed to properly investig ate potential w itnesses. Test imony o ffered at trial indicated that [counsel] was so motivated by the seriousnature of the charges

against Peti tioner that, at his personal expense, [counsel] took t he extraor dinary st ep of hiring a private dete ctive to search for

exculpator

y wi tnesses. The investi gator was unable t o l ocate any such witnesses, a fact [counse l] reported back to his c lient. Accor dingly , Petitioner’ s claim that counsel failed to investig ate is wi thout merit. Pe titioner’s allegatio ns of ineffective as sistance o f counsel are vag ue and unsubstantiat ed. After over eightyears of incarcerat ion, Petitioner seems to be on a fishing ex pedition to find any gr

ounds to overt urn his conv iction. Ma ny of Petitioner’s claims all ude t o the m etho ds whic h sho uld h ave [been] used by couns el. This Cour t will not use hindsi ght when review ing every

tactic used b ythe trial attor ney. See Stat e v. Martin , 627 S.W .2d 139, 142 (Tenn . Crim. App. 1981). This Cou rt fi nds th at [counsel] far exceeded the standard required for effective assistance of counsel; therefore, all Pe titio ner’ s clai ms re lati ng to i nef fec tive assistance of coun sel are w ithout merit and are dismiss ed. The record fully

supports thesedeterminations.

Relativeto the volu ntariness of the g uilty pl eas, the trial court determi ned as follows: A fterreviewi ng the reco rd of Peti tion er’s gu ilty ple a

hearing and the proof offered atthe hearing on the petition for post-convi ction relief, this Court finds Petitioner’s guilty pleas4 constitutionally valid. Boykin v . Al abama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.E d. 2d 274 (19 69 ), establishes the minimum protect ion afforded a defendant, under the united States Consti tution, when t hat defendant enters a gui lty plea . The Court hel d that a guil ty plea would be cons tituti onally v alid only when it w

as entered both voluntari ly and int elligentl y, and then, onl y after the defendant was informed of his const itutionally protected rights. I d. at 243. Tennessee has mandated greater

protection t o criminal def endants entering guilty pleas. The cur rent procedure for acce pting a guilt y plea in Tennessee was est ablished by the Supreme Court of Tennessee i n Stat e v . Mackey , 553 S.W .2d 337 (Tenn. 197 7). The proof offered by Petiti oner is void of any evidence to support a claim that hi s guilty plea was coerced. At t he hearing for post-conv iction rel ief, Petitioner hi m self admitted his guilty plea was made of his own freewill. Simply following Counsel’s experienc ed advice does not r ise t o the level of coercion req uired to overturn a gui lty plea. The mere fact that Petition er may have reconsidered his guilty plea after several year s of incarceration has no beari ng on whether th e plea was voluntari ly entered when it was accepted by this Court. Any claim by Petiti oner thatthe guilty plea was i nvalid i s dismissed. The record fully supports these determinations.

As for the trial court’s refusal to allow the app ellant to be present when his trial attor ney testified, I agree that the trial court erred. In fact, the tria l court in question has been criticized for a similar denial in a previous post-conviction case, in which this court essenti ally hel d that the appella nt’s statutor y rig ht to testify includes the r ight to be present duringother wi tnesses’ rel ated testimony for rebuttal pur poses. See Scot t v. State , 936 S.W.2d 271, 273 (Tenn. Crim. App .), app . denied (Tenn. 1996).

On the other hand, the appellant has failed to show any prejud ice, not even throug h speculation, that occurred to him by the trial cour t’s action. Also, gi ven the fact that the ev identiary hearings i n the present cas e preceded the deci sion in Scott , I would refrain from concludi ng that there has been prejudi ce to the judic ial process

. Under these ci rcumstances, I consider the error to be h armless.5 Under the foreg oing circumstances, I w ould affirm the judg ment of the trial court.

______________________________ Joseph M. Tipto n, Judge