IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
JULY SESSION, 1998 FILED
September 30, 1998
Cecil W. Crowson
DAVID L. GIBSON, )
Appellate Court Clerk
) No. 01C01-9710-CC-00473
Appellant )
) BEDFORD COUNTY
vs. )
) Hon. CHARLES LEE, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee )
For the Appellant: For the Appellee:
Curtis H. Gann John Knox Walkup
Asst. Public Defender Attorney General and Reporter
P. O. Box 1119
Fayetteville, TN 37334 Elizabeth A. Marney
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
John Harwell Dickey Nashville, TN 37243-0493
District Public Defender
William Michael McCown
District Attorney General
Robert Crigler
Asst. District Attorney General
One Public Square, STE 100
Shelbyville, TN 37160
OPINION FILED:
AFFIRMED; DELAYED APPEAL GRANTED WITH JUDGMENT IN CASE NO.
01C01-9503-CC-00099 VACATED AND REINSTATED
David G. Hayes
Judge
OPINION
The appellant, David L. Gibson, appeals the denial of his petition for post-
conviction relief by the Bedford County Circuit Court. A jury convicted 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 was affirmed on direct appeal to this court. See State v.
Gibson, No. 01C01-9503-CC-00099 (Tenn. Crim. App. at Nashville, Jan. 26, 1996).
The appellant filed a pro se petition for post-conviction relief in January 1997, which
was subsequently amended after counsel was appointed. Following a hearing on
the merits, the post-conviction court denied the appellant’s petition for post-
conviction relief.
From this denial, the appellant now appeals as of right asserting
ineffectiveness of counsel at trial and on appeal, contending that counsel’s
performance was deficient for:
(1) failing to gain his consent to waive the preliminary hearing;
(2) failing to interview witnesses for either the defense or the State;
(3) failing to subpoena witnesses for the defense;
(4) failing to adequately prepare the appellant and the appellant’s son,
Eric, for direct and cross-examination;
(5) failing to advise him of the range of punishment for the indicted
offenses;
(6) failing to advise him of a plea bargain offer from the prosecution a
few days preceding trial;
1
The appellant’s conviction stems from the December 1994 attempted murder of Violet
Tant, his ex-wife. Mr. Gibson shot the victim three times from his car, then exited 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
(7) failing to advise him of his Fifth Amendment right against self-
incrimination;
(8) failing to properly communicate with him during the trial;
(9) failing to perfect appellant’s permission to appeal to the supreme
court or to advise him of his pro se rights to appeal with regard to the
supreme court.
After a review of the record, we affirm the court’s denial of post-conviction
relief relative to the ineffective assistance of counsel at trial. However, we find
appellant’s issue nine (9), requesting a delayed appeal of his original conviction to
the supreme court, meritorious. Accordingly, he is granted the right to seek a
delayed appeal to the Tennessee Supreme Court.
I. Delayed Appeal
First, we address the appellant’s right to a delayed appeal. The appellant
avers that counsel was ineffective because he failed to apply for permission to
appeal to the Tennessee Supreme Court, pursuant to Tenn. R. App. P. 11, or to
explain to him his rights for filing a pro se petition to the supreme court of this state.
In an effort to comply with Rule 14, Tenn. Sup. Ct. R., counsel testified that a copy
of the opinion and computer printouts from the Court of Criminal Appeals were
mailed to the appellant on January 30, 1996, four days after the judgment was
affirmed . Although one of the printouts mailed to the appellant explained the
procedure of appealing to the supreme court, counsel 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 Court of Criminal Appeals. The only other correspondence with the
appellant was in a letter dated October 10, 1996, well after the time for permission
to appeal had expired.
3
We cannot ignore the fact that this appellant was entitled to petition the
supreme court for review of his conviction of attempted first-degree murder.
Pursuant to Pinkston v. State, 668 S.W.2d 676, 677 (Tenn. Crim. App.), perm. to
appeal denied, (Tenn. 1984), this court provided that, “unilateral termination of a
direct appeal following first-tier review entitles a prospective appellant to relief in the
form of a delayed appeal.” See also Miles v. State, No. 03C01-9701-CC-00029
(Tenn. Crim. App. at Knoxville, Oct. 3, 1997); Patrick v. State, No. 02C01-9409-CC-
00194 (Tenn. Crim. App. at Jackson, 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 appeal pro se to the
supreme court. The minimum requirements to assure that an appellant’s due
process rights are protected on appeal are defined in Rule 14, Tenn. Sup. Ct. R.
See State v. Brown, 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 appellant’s attorney failed to advise
him of his right to appeal to the Tennessee Supreme Court from the Court of
Criminal Appeals. The court further found that the appellant’s right to supreme court
review of his conviction was not properly protected under Rule 14, Tenn. Sup. Ct. R.
Moreover, the proof in the record was undisputed that the appellant was denied the
opportunity of review by the supreme court through no fault of his own. Although
finding a factual basis for relief, the post-conviction court opined that it lacked the
authority to vacate and reinstate the Court of Criminal Appeal’s judgment.
Specifically, the post-conviction court observed:
[T]his Court is not empowered to grant the Defendant a delayed
appeal from the . . . Court of Criminal Appeals’ decision. It can,
however, make a finding of fact that there is a due process problem,
and the Court so finds. . . . [u]pon the appeal . . . of the Court’s
decision . . . the Court of Criminal Appeals can reinstate their judgment
... .
I can grant delayed appeals on appeals that could be taken from this
Court. I do not believe I have the power to set aside the judgment of
4
the Court of [Criminal] Appeals . . . and then reinstate their judgment
for that purpose.
While the trial court’s position was correct under prior law, the 1995 Post-Conviction
Procedure Act expressly provides the trial courts with the authority 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. App. 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 supreme court on a delayed basis.
From a procedural aspect, we note at this juncture that the appellant in this
appeal seeks relief in two different directions: (1) from the supreme court for second
tier appellate review of his original conviction and (2) for a new trial pursuant to post-
conviction 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 appeal from the
original conviction and a Rule 11 application for permission to appeal from our ruling
denying post-conviction relief. A petition for post-conviction relief, complaining of
the original conviction and sentence, may not be maintained while a direct appeal of
the same conviction and sentence is being prosecuted. See Laney v. State, 826
S.W.2d 117, 118 (Tenn. 1992); Jones v. State, 453 S.W.2d 433, (Tenn. 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-conviction petition may not be filed until the final judgment of the
highest court has been entered, see Tenn. Code Ann. § 40-30-202, the instant
petition for post-conviction relief was filed prematurely and should have been
dismissed accordingly. Moreover, if the appellant’s Rule 11 application for
2
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
permission to appeal from his original conviction is granted and the ultimate holding
by the supreme court is favorable to the appellant, this court’s time has been wasted
on an appellate issue which is rendered moot. See Laney, 826 S.W.2d at 118.
In those situations where an appellant seeks post-conviction relief both in the
form of a new trial and a delayed appeal, we believe the better procedure is for the
trial court to grant the delayed appeal, when warranted, and dismiss the collateral
attack upon the conviction without prejudice. We are cognizant of the statutory
provision which contemplates the filing of only one petition for post-conviction relief
from a single judgment. Tenn. Code Ann. § 40-30-202(c). This statute provides
that if a petition has been resolved on its merits, a subsequent petition must be
summarily dismissed. Tenn Code Ann. §§ 40-30-202(c); 40-30-206(b). Conversely,
we interpret this to mean that those petitions not resolved “on their merits” are not
subject to dismissal. Id. This procedure would allow the appellant to pursue his
post-conviction relief after review from the supreme court. The order of the supreme
court denying an application for permission to appeal pursuant to Rule 11 shall be
deemed a final judgment and the petition for post-conviction relief must be filed
within one year of the date of this order; otherwise, the petition is barred. Tenn.
Code Ann. § 40-30-202. However, due to the posture of the appellant’s appeal
before this court seeking redress in the form of a delayed appeal and a new trial, we
have elected to address each of these issues in turn.
II. Ineffective Assistance of Counsel
Again, the appellant asserts that he was denied effective representation at
the trial level because of his counsel’s failure to (1) gain his consent in waiving the
preliminary hearing; (2) interview witnesses for either the 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 range of punishment for the
6
indicted offenses; (6) advise the appellant of a plea bargain offer from the
prosecution a few days preceding trial; (7) advise him of his Fifth Amendment right
against self-incrimination; and (8) properly communicate with appellant during the
trial.
The proof at the post-conviction hearing consisted solely of the testimony of
the appellant and his trial counsel. After hearing the testimony of both witnesses,
the trial court entered extensive findings of fact and conclusions of law, which, in
relevant part, include:
. . . Mr. Dearing has exhibited in his testimony a working knowledge of
the State’s case against his client. He had a trial strategy which was
forcefully put forward during 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 that Mr.
Dearing conducted an effective investigation of this case well above
that which would be necessary under Baxter v. Rose, that he did talk
with his client about trial strategy.
. . . [T] he court does not find any shortcomings with his performance.
. . . [W]ith regard to the witness Craig that Mr. Dearing spoke with and
made a tactical decision not to call him, that is not a question that in
the court’s mind affects the effectiveness of Mr. Dearing as an
attorney.
The facts of this case were overwhelming. You had a victim who
survived a vicious and near fatal attack upon her person who identified
the defendant as the perpetrator so the only defense he had, if any,
was not guilty of what I’m charged with; I’m guilty of something else.
To be successful in an ineffective assistance of counsel claim the
defendant must show the attorney’s performance was deficient. The
defendant has not done that today in any respect whatsoever.
The Court finds that . . . the trial strategies that counsel for the defense
made during the course of the trial were the appropriate 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 witness stand. . . . He wanted his forum to
tell the world how sorry his ex-wife had been to him.
7
However, even so putting the petitioner on the witness stand was the
correct trial strategy if the jury could develop some sympathy with him.
To have a client who says my passions were so overwhelmed that
caused me to shoot this woman four times and then for that person not
to get on the witness stand to explain that to the jury 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 . . . communicated of 12 years.
...
Mr. Dearing said there was no offer and the court makes that finding of
fact.
In short the defendant has failed to carry his burden of proof with
regard to the trial preparations and performance of counsel.
Since appellant’s petition was filed on January 22, 1997, it is governed by
provisions of the 1995 Post-Conviction Procedure Act. Thus, at the post-conviction
hearing, the appellant bears the burden of establishing his allegations contained in
the petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f)
(1997). Findings of fact and conclusions of law made by the post-conviction court
are given the weight of a jury verdict. Davis v. State, 912 S.W.2d 689, 697 (Tenn.
1995). Unless the evidence contained in the record preponderates against the
judgment, this court is bound by those findings on appeal. Id. This court may not
reweigh or reevaluate the evidence or substitute its inferences for those drawn by
the trial court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).
To succeed in a challenge for ineffective assistance of counsel, the appellant
must demonstrate that counsel’s representation fell below the range of competence
demanded of attorneys in criminal 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 establish (1) deficient representation and (2)
prejudice resulting from 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).
8
In the case at bar, the post-conviction court found that the appellant failed to
carry his burden of proof of clear and convincing evidence with regard to the trial
preparations and performance of counsel. We conclude that there is no evidence
contained within the record that preponderates against those findings.
Based upon the foregoing, we affirm the post-conviction court’s denial of
post-conviction relief relative to the ineffective assistance of counsel at trial, but the
record preponderates a sufficient basis for relief in order to allow the appellant to
seek review of this court’s judgment by the supreme court in a delayed appeal.
Therefore, we vacate our judgment 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 purpose of reinstating the time allowed to obtain permission
to appeal to the Tennessee Supreme Court in the above styled case.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
______________________________
PAUL G. SUMMERS, Judge
______________________________
JERRY L. SMITH, Judge
9