# FILED
February 2, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE DECEMBER SESSION, 1998

FRANK C. PE

ASE, )

) No. 03C01-9804-CR-00132 Appellant ) ) HAMILTON COUNTY vs. ) ) Hon. R. Steven Bebb, Judge STATE OF TENN ESSEE, ) ) (Post-Conviction) Appellee )
For the Appellant : For the Appellee : Frank C. Pease, Pro Se John Knox Walkup 8400 Middelbrook Pike, Apt. H-25 Attorney General and Repor ter Knoxville, TN 37923 Ellen H. Pollack Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493
William H. Cox III District Attorney General David Denny Asst. District Attor

ney General City and County Court s Bldg. Chattanooga, TN 37402

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 The appe llant’s petitio ns w ere in itially filed in the c oun ty of co nvictio n, Ha mb len C oun ty, but w ere la ter tra nsfe rred to Ha milto n Co unty to facilita te rev iew d ue to the fa ct tha t Hon orab le Gary Gerbitz

of Hamilton County

was designated by

the supreme court t

o preside over

the procee dings.

2 The appellant’s convictions stem from his conceal ment and sale of woodworki ng equ ipm ent u sed as co llatera l in obta ining a loan f rom Jeff erso n Fin anc ial Se rvice s. In a prior c ivil procee ding, the ap pellant perju red him self by stating that he ha d not disp osed o f the equ ipme nt.

3 Those judges i nclude: Judges Port er, Beckner , Wexler, Gerb itz , Stern and Bebb. Two substitutions were occasioned by retirement; the rem aining designations by the supreme co urt were necessitat

ed by the appel lant’ s actions i n allegi ng judici al misconduct or recusal by the tri al judge fo r conflicts o f interest. 2 OPINION
The appellant, Frank C. Pease, appeals the dismissal of his pro se petition for post-conviction rel ief by the Hamilton County Criminal Court. 1 On December 12, 1994, the appellant entered guilty pleas to the off enses of attempt to commit aggravated perjury

and hindering a secured creditor, both class E feloni es, in the Hamblen County Criminal Court. 2 The court sentenced the appellant to one year on each count to be served concu rrently as a Range Istandard offender. On June 19, 1995, the appellant filed a petition fo r post-conviction relief collaterally attacking his felony convictions in the Hamblen County Crimi nal Court. The appellant’s postconviction hearing w

as scheduled for June 16, 1997, in th e Hamilton County Criminal Court. Because the appellant failed to appea r at his scheduled hearing, his petition was dism issed. The app ellant now appea ls from this rulin g.
After review, we affirm the dismissal.

I. Background
The proceedings before us present a troubled and protracted proc edural history. Six trial judges have participated in varying degrees in these proceedings. 3
In addition, appointment of district attorneys general pro tem have been4 The appellant , on July 17, 1995, fi led a second pet iti on for post- convicti on reli ef, ari sing from a guilty p lea to ass ault, w hich was dism isse d. Th e des ignat ed po st-co nvictio n jud ge on this date, Honorabl e Gary Gerbit z, found t hat the i ssues alleged "were waivedby the pl ea of guilty and do not rise to a cons titutional level." In this pe tition, the appe llant alleged th at the Ha mble n Cou nty general sessi ons judge, Cri minal Court j udges, the Cri minal Court cl erk’s offi ce, members of the district attorney general’s offi ce and num erous criminal defense lawyers “cons pired” to deprive him of his consti

tution al rig hts. 3 necessitated as well as substitutions of defense counsel.
In seeking post-convi ction relief, the appellant contends that his guilty pleas were “inad vertently a nd involun tarily” ent ered and he was deni ed the ef fective assistance of counsel. In support of these grounds, he alleges, among other things, (1) that he was denied i nsulin at the Hamblen County jail the night before he enter ed his guilty pleas, resu lting in impaired c ognitive response s at his guilty plea he aring; (2) that bec

ause in all likelihood

he would ha

ve been atti red in a jai l “COUNTY ORANGE JUMPSUIT” and . . . would not be “CLEAN SHAVEN" . . . [h]e felt frightened and threatened; (3) that he was denied a speed y trial; (4) that his lawyers lied to him; (5) that the di strict attorney gene ral’s office violated his rights; and (6) judicial misconduct by

the trial judge. 4
In May of 1997, the appellant cont acted the court and requested a "speedy hearing" on his post-conv iction petition and gav

e the court a Connecticut tel ephone number where he could be contac ted. The record indicates that the appellant had requested transfer of his probationary status to Connecti cut and had relocated to that state at this time. On Ju ne 1, 1997, the post-conviction court contacted the appellant by leaving a message with an answering service, informing him that his hearing was set for June 16, 1997. Sometime after business hour s on Friday, June 13, a female identifying hersel f as the appellant’s secretary left a message with the court that the petitioner w as “out of town on business” and would be unable to
attend the hearing. The post-conv iction judge became awar e of this message the following Monday mor

ning en route from Athens to Chatt anooga.4 Following the appell ant's failed scheduled appearance, the post-conviction court entered the following order: [U]pon the docket call the peti tioner, Frank Pease, has fail ed to appear on June 16, 1997 and further that ever y Judge who has pres ided over these cases have had complaints filed against them bef ore the Court of the Judiciary, and that ev ery attorney who has been appointed to represent him has been alleg ed to be incompetent and ineffective, that this petitioner desires to harass the entire Judici al System of Tennessee, these cases are dismis sed upon Mr. Pease’s failure to appear. Pursuant to the order, th e court mail ed a copy of the order to the appellant.To explain his absence, the appellant claims that he was “inadvertently incarcerated” in the state of Connecticut beginni ng on June 5, 1997, for eighty -three days until he was released on bond. On Oc tober 3, 1997, the appellant filed a “motion to set aside ruling” whi ch was overruled by the post-conviction co urt because “the time for appeal has passed.” Thereafter, the appellant filed his notice of appeal on November 7, 1997.
Although the appellant rais es numerous issues withi n his brief addressing the merits of his petition, the onl y issue properly before this court is whether the postconviction court err

ed by dismissing the ap pellant’s petition for post-conviction relief.
First, as the State argues, the post-conviction court acted properly because the motion to set aside the court ’s ruling was fil ed over one hundred days after the judgment of the court was ente red on June 16, 1997. Therefore, the State contends that the trial court had los t its jurisdiction to

set aside the judgment it had earlier entered. We agree. Unless a timely notice of appeal or one of the specified posttrial motions are filed, the trial court’s judgment becomes final thirty day s following its entry. State v. Lock , 839 S.W.2d 436, 44 0 (Tenn. Crim. App. 1992); Tenn. R. App. P. 4(a) and (c). The trial court loses jurisdiction to amend the judgment af ter it has become final. Lock , 839 S.W.2d at 440; State v. Moore , 814 S.W.2d 381 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1991). Thus, because the motion to set aside the court’s ruling was untimely, the requisite time to file his5

notice of appeal was not toll ed.
Moreover, the appellant fil ed his notice of appeal over on e hundred thirty days after the order dismis sing the appellant’s petition was entered. The rule s of appellate procedure requi re that a notice of appeal be filed w ithin thirty days

after the entry of the judgment from w hich the defendant is appealing. Tenn. R. App. P. 4(a). However, the State acknowledges that this court may wai

ve the timely filing

of a notice of appeal “in the interest of justice.” State v. Scales , 767 S.W.2d 157 (Tenn. 1989); see also Tenn. R. App. P. 3(e) and 4(a). The appellant in this case has failed to demonstrate to this court that the “intere st of justice” demands such waiver.
If this court did waive the time requirements for this appeal, the result would remain the same. The record before us,as previously st ated, is wholly i nadequate. If the appellate record is ina dequate, the reviewi ng court must presume that the t rial court ruled correctly

. See State v. Ivy , 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993). The appellant’s brief contains no arguments requir ing a reversal of the postconviction court’s dismissal of his petition. Those issues unsupported by arg ument and citation to legal author ity are waived.Tenn. Ct. Crim. App. R. 10(b). The appellant’s brief states that h e was “unfortunately i ncarcerated in the State of Connect icut pend ing the pro curemen t of a $50 ,000 sure ty bond, a nd could not have attended the hearing to whi ch he was not aware.” The record lacks any s cintilla of evidence of th e appellant’s in carceration exce pt for the “mot ion to set aside ruling” where he asserts he w as “inadvertently incarcerated” in whi ch he provides the address of the Hartford Community Correctional Center. Had the appellant been truthfu l regardin g his absen ce from t he hearin g, the pos t-convict ion court could have made other arrangements. See Tenn. Code Ann. § 40-30-210; Tenn. Sup . Ct. Rule 28 § 8(C)(1)(a)-(c

). Even if the appellant’s incarceration were taken as the truth upon this appeal, the post-conv iction court was w

ithout the knowledge of this fact at6

the time of its ruling and w as not aware until after its judgment became final.
Therefore, we conclude that the judgment of the post-conviction court is affirmed, and the petition for post-conv iction relief is dismis

sed with prejudice.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

__________________________________ JERRY L. SMITH, Jud ge

__________________________________ JAMES CURW OOD WIT T, JR., Judge