# FILED

September 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JULY SESSION, 1998

DAVID L. GIBSON, ) ) No. 01C01-9710-CC-00473 Appellant ) ) BEDFORD COUNTY vs. ) ) Hon. CHARLES LEE, Judge STATE OF TENN ESSEE, ) ) (Post-Conviction) Appellee )

For the Appellant : For the Appellee : Curtis H. Gann John Knox Walkup Asst. Public Defender Attorney General and Repor ter P. O. Box 1119 Fayetteville, TN 37

334 Elizabeth A. M arney

Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y John Harwell Dickey Nashville, TN 37243-0493 District Public Defender Will iam M icha el McCown District Attorney General Robert Crigler Asst. District Attor

ney General One Public Square, STE 100 Shelbyville, TN 37160

OPINION FILED: AFFIRMED; DELAYED A PPEAL GRANTED WITH JUDGMENT IN CASE NO

. 01C01-9503-CC-00099 VACATED A ND REINSTATED

David G. Hay

es Judge1 The appellant ’s convict ion stems from the December 1994 attempted murder of Violet Tant, his ex-

wife. Mr. Gibson shot the victi m three times from his car, then exit ed the car and shot her a gain. At trial, the a ppe llant a dm itted th at he shot Ms. T ant b eca use she h ad be en alle ged ly having a n affair with T im Cr aig and h ad sub seque ntly rema rried Dou g Tan t.

2 OPINION

The appellant, David L. Gibs on, appeals the denial of his petition for postconviction relief by

the Bedford County Circui t Court. A jury conv

icted him of attempted first-degree murder and imposed a $50,000 fine. 1 The trial judge sentenced him to twenty-two (22) years and nine (9) months as a range I standard offender. His conviction w as affirmed on direct appeal to this court. See State v. Gibson , No. 01C01-9503-CC-00099 ( Tenn. Crim. App. at Nashvi lle, Jan. 26, 1996). The appellant filed a pro se petition for post-conviction relief in January 1997, which was subsequently amende d after counsel was appointed. Following a heari ng on the merits, the post-conv iction court denied the appell ant’s petition for postconvic tion re lief.

From this denial, the appell ant now appeals as of right asserting ineffectiveness of counsel at trial and on appe al, contending that counsel’s performance was deficient for: (1) failing to gain h is consent to waive th e preliminary hea ring; (2) failing to interv

iew witnesses for ei

ther the defense or the State; (3) failing to subpoena w itnesses for the defense; (4) failing to adequatel y prepare the appellant and the appellant’s son, Eric, for direct and cros s-examination; (5) failing to advi se him of the range of punishment for the i ndicted offenses; (6) failing to advi se him of a plea bargain offer from the pr osecution a few days preceding trial;3 (7) fai ling to

advise him of hi s Fifth Amendment right agains

t selfincrimination; (8) failing to properly communicate with him during the trial; (9) failin g to perfect appellant’s permission

to appeal to the supreme court or to advise him of his pro se rights to appeal wi

th regard to the supreme court.

After a review of the rec ord, we affirm the court’s den ial of post-conviction relief relative to the i neffective assistance of counsel at trial. However, we find appellant’s issue nine (9) , requesting a delay ed appeal of his original c onviction to the supreme court, meritorious. Accordingly, he is granted the right to seek a delayed appeal to the Tennessee Supr eme Court.

I. Delayed A

ppeal

First, we address the appellant’s right to a delayed appeal. The appellant avers that counsel w

as ineffective because he failed to ap ply for permission to appeal to the Tennessee Supreme Court, pursuant to Tenn. R. App. P. 11, or to explain to him his rig hts for filing a pro se petition to the supreme court of this state. In an effort to comply with R ule 14, Tenn. Sup. Ct. R., counse l testified that a copy of the opinion and computer printouts f rom the Court of Criminal Appeals were mailed to the appellant on January 30, 1996, four days after the judg ment was affirmed . Although one of the printouts mailed to the appellant expl ained the procedure of appealing to the supreme court, coun sel never explained specifically how to apply for a pro se permission to appeal. Counsel never filed an application for permission to appeal on behalf of the appellant, nor did he file a motion to withdraw in the C

ourt of Criminal Appeals. The onl y other correspondence w ith the

appellant was in a letter dated October 10, 1996, well after the time for permission to appeal had expired.4 We cannot ignore the fact that this appellant w as entitled to petition the supreme court for review of his conviction of attempted fir st-degree murder. Pursuant to Pinkston v. State , 668 S.W.2d 676, 677 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1984), this cour t provi ded that , “unil ateral termina tion of a direct appeal following

first-tier review

entitles a prospectiv

e appellant to relief in the form of a delayed appeal.” See also Miles v. State , No. 03C01-9701-CC-00029 (Tenn. Crim. App. at Knoxv ille, Oct. 3, 1997); Patrick v. State , No. 02C01-9409-CC00194 (Tenn. Crim. App. at Jacks on, Feb. 15, 1995), perm. to appeal denied , (Tenn. July 3, 1995). Nor can we overlook the fact that the record reflects that the appellant did not receive appropriate protection of his rights to appea l pro se to the supreme court. The minimum requi rements to assure that an appell ant’s due process rights are pr

otected on appeal are defined in Rul e 14, Tenn. Sup. Ct. R. See State v. B rown , 653 S.W.2d 765, 766-67 (Tenn. Crim. App. 1983); State v. Luster , No. 02C01-9409-CR-00205 (Tenn. Crim. App. at Jackson, July 19, 1995 ).

The post-conviction court found that the appellan t’s attorney failed to advise him of his right to appeal to the Tennessee Supreme Court from the Cour t of Criminal Appeals. The court further found tha t the appellant’s right to supreme court review of his conv

iction was not properl

y protected under Rule 14,Tenn. Sup. Ct. R. Moreover, the proof in the r ecord was undisputed that the appellant was denied the opportunity of review by the supreme c ourt through no f ault of his own. Al though finding a factual basis for rel ief, the post-conviction c ourt opined that it lacked the authority to vacate and reinstate the Court of Crimi nal Appeal’s judgment. Specifically, the post-c

onviction court observ

ed:
[T]his Court is not empower ed to grant the Defendant a delayed appeal from the . . . Court of Cri minal Appeals’ decision. I t can, however, make a finding of fact that the re is a due pr ocess probl em, and the Court so finds. . . . [u]pon the appeal . . . of th e Court’s decision . . . the Court of C riminal Appeals can reins tate their judgment

. . . . I can grant delayed appeals on appeals that could be taken f rom this Court. I do not believe I have the power to set aside the judgment of2 But see Miles v. Sta te , No. 03C 01-970 1-CC -00029 (Tenn . Crim. A pp. at Kno xville, Oct. 3, 1997) ; State v. Luster , No. 02C01-9409-CR-00205 ( Tenn. Crim. App. At Jackson, July 19, 1995) (permitting post-conviction and direct appeals to proceed simultaneously). 5 the Court of [Criminal] Appeal s . . . and then reinstate thei r judgment for that purpose. While the trial court’s position w as correct under prior law, the 1995 Post-Conv iction Procedure Act expressl y provides the tri al courts with the author ity to grant a delayed appeal for second tier appellate review. See Tenn. Code Ann. § 40-30- 213(a) (1997); Tenn. Sup. Ct. R . 28 § 9(D). See also Mendez v. State , No. 01C01- 9703-CC-00076 (Tenn. Crim. Ap p. at Nashville, Jun. 30, 1998). The State does not oppose the relief sought by the appellant. The appellant should be allowed to seek review by the s upreme court on a delayed basi s.

From a procedural aspect, we note at this juncture that the appellant in th is appeal seeks relief in tw o different directions: (1) from the supreme court for second tier appellate review

of his original conv

iction and (2) for a new trial pursuant to postconviction relief. Our ruling in this case will have the effect of permitting two appeals to be entertained at the same time, i.e. , a Rule 11 application to appea l from the original convicti on and a Rule 11 application for pe rmission to appeal from our rul ing denying post-convi ction relief. A petition for p ost-conviction reli ef, complaining of the original convic

tion and sentence, may not be maint ained while a direct ap peal of the same conviction and sentenc e is being prosecuted. See Laney v. State , 826 S.W.2d 117, 118 (Tenn. 1992); Jones v. State , 453 S.W.2d 433, (Te nn. Crim. App.), cert. denied , (Tenn. 1970); Crain v. State , 451 S.W.2d 695 (Tenn. Crim. App.), cert. denied , (Tenn. 1970); Hunter v. State , 443 S.W.2d 532 (Tenn. Crim. App.), cert. denied , (Tenn. 1969). See, e.g. , Tenn. Code Ann. § 40-30-202(a) and (c) (1997). 2 Because a post-convicti on petition may not be filed unti l the final judgment of the highest court has been entered, see Tenn. Code Ann. § 40-30-202, the ins tant petition for post-convic

tion relief was filed premat urely and should have bee n dismissed accordingly. Moreover, if the appell ant’s Rule 11 application for6

permission to appeal from his or iginal conviction is granted and the ultimate ho lding by the supreme court is fav orable to the appellant, this court’s time has been was ted on an appellate issue whic h is rendered moot. See Laney , 826 S.W.2d at 118.

In those situations wher e an appellant seeks post-conv iction relief both in the form of a new trial and a delay ed appeal, we believe th e better procedure is for the trial court to grant the delayed appeal, when w arranted, and dismiss the col lateral attack upon the conviction without prejudice. W e are cognizant of the statutory provision which c

ontemplates the filing of only one petition for post-convi ction relief from a single judgment. Tenn. C ode Ann. § 40-30-202(c). This statute provides that if a petition has been resol ved on its merits, a subs equent petition must be summari ly dismisse d. Tenn C ode Ann. §§ 40-30 -202(c); 40-30-20 6(b). Con versely, we interpret this to mean that those petitions not resol ved “on their merits”

are not subject to dismissal. Id. This procedure would allow the appellant to pursue his post-conviction rel ief after rev iew from the

supreme cour

t. The order of the supreme court denying an applic ation for permission to appeal pur suant to Rule 11 shall be deemed a final judgment and the petiti on for post-conviction r elief must be filed within one year of the date of this order; otherwis

e, the petition is barred. Tenn. Code Ann. § 40-30-202. How ever, due to the posture of the appe llant’s appeal before this court seeking re dress in th e form of a delayed appeal a nd a new tri al, we have elected to address each of these issues in turn.

II. Ineffective A

ssistance of Counsel

Again, the appellant assert s that he was denied effective representation at the trial level becaus

e of his counsel’s failure to ( 1) gain his consent in w aiving the preliminary hearing ; (2) interview witnesses for either th e State or defense; (3) subpoena witnesses for the defense; (4) prepare him and his son for direct and cross-examination; (5)

advise the appellant of the ra nge of punishment for the7

indicted offenses; (6) advis e the appellant of a plea bargain offer from the prosecution a few days pr eceding trial; (7) ad

vise him of his Fifth Amendment ri ght against self-incrimination; and (8) properly communicate with appellant dur ing the trial.

The proof at the post-convicti on hearing consisted sole ly of the testimony of the appellant and his trial counsel. After hearing the testimon y of both witnesses, the trial court entered extensive findings of fact and conclusions of law, which, in relevant part, include: . . . Mr. Dearing ha

s exhibited in his tes

timony a working knowledge of the State’s case against hi s client. He had a trial strategy which

was forcefully put forward dur ing the course of the trial . . . . [I]t is obvious to the court that he did investigate this case fully and did discuss this matter with his client as well as the witnesses. So on that factual issue the Court will find that the facts are th at Mr. Dearing co nducted an effe ctive inves tigation of this ca se well abo ve that which would be necessary under Baxter v. Rose , that he did talk with his cli ent abou t trial str ategy. . . . [T] he court does not find any shortcomings with h is performance. . . . [W]ith regard to the witness Craig that Mr. Dear

ing spoke with and made a tactical decision not to call him, that is not a question that in the court’s mind affects the effectivene ss of Mr. Dearing as an attorne y. The facts of this case were ov erwhelming. You had a victim who survived a vic

ious and near fatal attack upon her person who identified the def endant a s the perp etrator s o the onl y defens e he had, if any, was not guilty of w

hat I’m charged with; I’m guilty of something else. To be successful in an ineffective as sistance of counsel claim the defendant must show the attorney ’s performance was deficient.The defendant has not done that toda y in any respect whatsoever. The Court finds that . . . the trial strategies that counsel for the de fense made during the course of the tr ial were the appropri ate trial strategies; that he was prepared after having investigated the matter.

With regard to the defendant’s testifying , the defendant . . . has inconsistent positions. I wanted to tell my entire story. Then he says . . . my attorney made me get up there. Well, I don’t think you could have tied Mr. Gibson with a team of mules to have kept him off that witnes s stand. . . . He wanted his forum to tell the w orld how s

orry his ex-wife h ad been to him.8 However, even so putting the petitioner on the witness stand was the correct tr ial strategy if the j ury could develop som e sympathy with him. To have a client who say s my passions were s

o overwhelmed that caused me to shoot this woman four times and then for that person not to get on the witness s

tand to explain that to the j ury would have been incompetent. The trial strategy was correct. The Court finds that Mr. Dearing did advise the defendant of his rights. The Court finds that there was no offer . . . commu nicated of 12 years.

. . . Mr. Dearing said ther

e was no offer and the court makes that finding of fact. In short the defendant has failed to car ry his burden of proof with regard to the trial preparations and performance of cou nsel.

Since appellant’s petition was filed on January 22, 1997, it is governed by provisions of the 1995 Post-Conviction Procedure A ct. Thus, at the post-convi ction hearing, the appellant bears the burden of estab lishing his allegations contained in the petition by

clear a nd convincing

eviden ce. Tenn . Code An n. § 40-3 0-210(f) (1997). Findings of fact and conclusions of law made by the post-conviction court are given the wei ght of a jury verdi ct. Davis v. State , 912 S.W.2d 689, 697 (Tenn. 1995). Unless the eviden ce contained in the record pr eponderates against the judgment, this court is bound by those findings on appeal

. Id. This court may not reweigh or reev

aluate the evidence or subs titute its inferences for those drawn by the trial court. Black v. State , 794 S.W.2d 752, 75 5 (Tenn. Crim. App. 1990).

To succeed in a challenge for i neffective assistance of counsel, the appellant must demonstrate that counsel’s representation fell below the range of competence demanded of attorneys in crimina l cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 2064 (1984), the appellant must est ablish (1) deficient repr esentation and (2) prejudice resulting fro m the deficiency. See also State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied , 493 U.S. 874, 110 S.Ct. 211 (1989).9 In the case at bar, the post-c onviction court found that the appellant failed to carry his burden of proof of cl ear and convincing ev idence with regard t

o the trial preparations and performance of coun sel. We conclude that there is no evidence contained within the rec ord that preponderates agains t those findings.

Based upon the foregoing, w e affirm the post-conviction c ourt’s denial of post-conviction reli ef relative to the ineffectiv e assistance of counsel at tri al, but the record preponderates a sufficient basis for relief in order to allow the appellant to seek review of this c

ourt’s judgment by the s upreme court in a delayed appea l. Therefore, we vacate our j udgment filed on January 26, 1996,in State v. Gibson , No. 01C01-9503-CC-00099, and reenter it, effective as of the date of the release of this opinion, for the sole pur pose of reinstating the time al lowed to obtain permissi on to appeal to the Tennessee Supreme Cour t in the above styled c

ase.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

______________________________ PAUL G. SUMMERS, Ju dge

______________________________ JERRY L. SMITH, Jud ge