### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs D ecem

ber 14, 200 4 at Knoxvil le
KEVIN TROY GREE R v. STATE OF TE NNESSEE
Appeal from the Criminal Court for Davidson County No. 2001-D-2196 Steve Dozier, Judge

No. M2003-03057-CCA-R3-PC - Filed February 23, 2005

The petitioner, Kevin Troy G reer, appeals the dismissal by the Davidson County Criminal Court of his petition for post-conviction relief and request for a delayed a ppeal. After

review of the record, we affi rm. Tenn. R. App. P. 3; Judg ment of the Crim inal Court is Affirme d.

J AMES C URWOOD W ITT , J R ., J., delivered the opi nion of the court, in which G ARY R. W ADE , P.J., and A LAN E. G LENN , J., joined. Dwight E. Scott, Nashville, Tennessee, for the Appellant, Ke vin Troy Gree

r.
Paul G. Summers, Attorney General & Reporter; Preston Shipp, Assistant Attorney General; Victor S. Jo hns on, III, District Attorney Gene ral; and Ryan

Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

The petitioner stands convicted of one count of Class C aggravated assault and one count of Class D aggravated a ssault, see Tenn. Code Ann. § 39-13-102(a)(1), (a)(2), (d)(1) (2003), and is presently serving

an effective incarcer

ative sentence o f 10 year s. A Davidson County jury found the petitioner guilty of

those offenses based on evidence that on Aug ust 22, 2001, the petitioner walked into the Nashville Rescue Mission brandishing a knife, strode up to the chaplain, and asked, “What

about if I stick this in y

our heart?” After the chaplain and the security super

visor escorted the petitioner outside, the petitioner made threatening, stabbing gestures with his knife, and
a mission residentwho saw what was happening tried to subdue the pe titioner. During the resulting altercation, the petiti oner st abbe d both the mission resident and the chaplain. The petitioner, a Range I I mult iple offe nder, did not testif y a t trial.

The petitione

r’s def ense cou nsel file d a tim e ly motion for new trial, alleg ing prosecutorial misconduc

t and the c ourt’s fa

il ure to charge the jury

on assault as a lesser included-2-

offense. It is undisputed that the petitioner instructed his counsel to abandon the motion. A t the scheduled hearing date for the new tria l motion, couns el conveye d to the court that the petitioner “doesn’t w an na proceed any

further on his case.” The trial court then personally addresse d the petitione r as follows:
THE COURT: All right. Mr. Greer, Ms. Foreman’s stated here, and you’ve

heard her, that y

ou were not wanting to be heard on any motion for new trial, which would then also – y our case would not be pro ceeding

any further , in terms o f any

higher appeal.
So, this sentence that’s been imposed f

or y ou to serv e would be served and there would not be any further court action.

Is tha t yo ur wishes ?
THE DEFENDANT: Yes, sir, Your Honor.

THE COURT: All right. And you u nderstand that there won’t be any appe al at

any hig her court, won’t be any

ruling on any motion for

new tria l?
THE DEFENDANT: Yes, sir.

THE COURT: All r

ight. All right. T hat’s wha t we’ll do, strike you r motion for new tri al; and th at judgm ent will be come fin al.

The appeal presently

before this court arises from what the state argue d to the pos tconvictioncourt was “buy er’s regret”; that is, the petitioner’s “hardheaded decision” not to pursue the previous ly f

iled new t rial motio n and not to

appeal h is convic tion. Whate

ver cha racte ri zation might be apropos, the record

before us reflects that less than six months after withdrawing his motion for new trial, the petitioner filed a pro se petition for post-conviction relief a lle ging primarily ineffective assistance of counsel and claiming that he did not appeal his underly ing conviction because he “f elt th at co

unse lor ha

d aba ndone d [h is] de fens e[, ] and [he] was worried about the outcome of the appeal, at that time.”

The post-conviction court appointed counsel to repre sen t the petit ioner; po stconvictioncounsel filed a petition for a delayed a

ppeal, claiming that trial counsel was ineffective for not p ursin g t he pet itioner’ s appella te righ ts, and an amendme

nt to the or

iginal pro se

petition asserting counsel’ s ineffe ctivene ss in failing to allow the petitioner to testify in his own defense. At the post- convicti on eviden tiary hearing , the peti

tioner’s counsel w

ithdrew t he amend ment. Only two witne sses testi fied at th e post-c onviction hearing : the petit

ioner an d his former counsel. Former counsel testified that she filed a motion for new trial. She affirmed that she-3-

forwarded

a writte n copy of the moti on to the pe

titioner a nd spoke in

person to

him a bout th e motion. Eve n so, t he petitioner insist ed that th e motion be

“stricke n.” Counse l said that

she also explained to the pet itioner th e resulti

ng adve rse consequences a

nd his appe llate rig

hts; neverth eless, the petitioner informed counsel that he did not wish to “proceed any more.”

T he petitioner testified and admitted waiving his right to take an appeal. Hi s explanatio n was ramb ling and large ly d

isjointed, such as c ounsel ha d “refu sed to ord

er some witnesses,” would not “ even tal k to [him] abou

t this issue ,” was “

try ing to move too fast,” and had “abandoned

[him], during the times of [his ] trial.” A t one point , he said, “[O]n the str ength that I fe lt t ha t sh e h ad ab an doned

me , w hy wo uld Iwa nna go ba ck up w ith he r?”

Oncross-examination, the petitioner agreed that he had “been th rough the sy stem” many times and had numerous attorney s appointed to represent him. The state concluded by asking the petitione

r, “Only now, aft er y ou’ve ma de y our deci sion and a

re reg retting it, that’s the

first time that you’ve eve

r raised this issue, isn’t

it?” He responded, “I – I don’t regret the decision. It’s just that I’m – I ’m trying to g et something done. I don’t re gret the decision.”

The post-conviction court issued a written order deny ing a d el aye d appeal and any other post-conviction relief. The court credited trial counsel’ s testimony and found no deficien t performance or prejudice entitling the petitioner to relief. On appea l, the petitione

r claimsa general entitlement

to delay ed appe al under

the circ umstance s and arg

ues t hat procedu rally

the postconvictioncourt sho

uld have d ismis sed his ineffective assistan ce of counsel claims without prejudice to preserve his right to seek post-conviction relief a t a later time. We disagree.

The law is settled that the post-conviction petitioner bears the burden of est ablis hing, at the ev ident iary heari ng, his allegations by c lear and convincing evidence. T enn. Code Ann. § 40- 30-110(f) (2003). Evidence is clear and convincing when there is no serious or substantial doubt about the correctness of the conclusions drawn fr om the evidence. Hodges v. S.C. Toof & Co ., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992). An appella te court is bound by the trial court’s findings of fact unless we co nclu de that the evidence in the record preponde rates against those findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

The Post-Conviction Procedure Act provides for a delay ed appeal when

a petitioner has been “denied t

he right to an appeal from the orig inal conviction.” Tenn. Code Ann. § 40-30- 113(a) (2003). Spe cifical ly, the Act r ecites, (a) When the trial judge conducting a hear ing pursuant

to this part finds that t he pet itio ner was denie d the r igh t to an a ppeal from the original conviction in violation of the Constitution of

the United States or the Constitution of Tennessee and that ther e is an ad equate record of the original trial proceeding

available for such review, the judge can:-4- (1) I f a tran script wa s filed, g rant a de layed appe al; (2) If, in the original proceedings, a motion for a new trial was filed and overruled but no transcript was filed, authorize the filing of the transcript in the convicting court; or (3 ) If no motion for a new trial wa s filed in the origina l procee ding, auth orize

such motion to be made before the original trial court within thirty (30) day s. Such motion shall be disposed of by the original trial court as

if the motion had been filed under authority of Rule 59 of the Rules of Civil Procedure.

Id . § 40-30-113(a)(1), (2), (3) (2003).

According

to our supreme court, Code section 40-30-113 indicates “that a defendant may receive a delay

ed appeal where there has been a denia l of the effective assistance of counse l in violation of the Sixth Amendment to the United State s Constitution and article I, section 9 of the Tennessee Constitution.” Walla ce v. Sta te , 121 S.W.3d 652, 656 (Tenn. 2003). That inquiry turns
on a familiar two-prong test: (1) deficient re presentation

and (2) p rejudice resulting from that de fi ci en cy. Strickland v. Washington , 466 U.S. 6 68, 686, 10 4 S. Ct. 2052, 2064 (198 4); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs whe n counsel’s services fall below the ran ge of competence demanded of attorneys in criminal ca ses. Wallace , 121 S.W.3d at 657. Prejudice is the reasonable likelihood that, but for deficient represe ntation, the outcome of the proceedings would have been diff erent. Overton v. State , 874 S.W.2d 6, 11 (Tenn . 1994); but
see Wallace , 121 S.W.3d at 660 (presuming prejudice when counsel’s deficiencies post-trial amount to a complete failure to subject the state’s case to appellate scrutiny ). On review, there is a strong presumption of satisfactory representation. Barr v. Sta te , 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).

Measured

by these standar

ds, it is readily appare

ntthat the petitioner

failed to carry his burden, and the evidence in the record cert ainly does not preponde rate against the post-conviction court’s finding s. In this case, petitioner’s counsel filed a timely motion for new trial; the motion was stricken only at the insistence

of the petitioner, who first was questioned by the trial court. Counsel did not abandon the petitioner by c easing to represent him after trial or, a s in Wallace , cr eat e a “Catch-22 predicament” such that the p etitioner

was unab le to avail h

imself of self-he lp appell ate remedie s. The petitioner has utterly failed to demonstrate deficient represen tation

. See Jonathan D. Tears v. S

tate , No. M2003-02291-CCA-R3-PC, slip op. at 6 (Tenn. Crim. App., Nashville, Nov. 10, 2004) (f

ailure to file writ ten waive r of appe al, as pr

ovided in C rimin al Pr ocedure Rule 37(d), does not violate a constitutional right supportingpost-convictionrelief, provided the record shows that the defendant knew of his right to appeal a nd intended

to waive that right); Rainer v. State , 958 S.W.2d 356, 357 (Tenn. Crim. App. 1997).-5- As for the argument that proce durally th e court should hav e dismisse d his postconvictionpetition without prejudice pending completion of a delay ed appeal, the petitioner was not entitled to a delaye d appeal. Only w hen a delayed a

ppeal is “warr

anted” should the c ourt dismis s the collateral attack on the conviction without prejudice to pre serve the d efendant’s right to seek po st-c onviction relief at a later date. See Gibs on v. State , 7 S.W.3d 47, 49-50 (Tenn. Crim. App. 1998). The post- convicti on court d id not proc edurall

y e rr in its treatment of the petitioner’s action.

Co ns eq ue nt ly, for the foregoing re asons, we affirm the post-conviction court’s denial of a delayed appeal and denial of post-conviction relief.

__________________________________ JAMES CURWOOD WITT, JR., JUDGE