IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY SESSION, 1997 September 10, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
WILLIAM LEW IS HOWELL ) C.C.A. NO. 03C01-9703-CR-00095
)
Appellant, )
)
) KNOX COUNTY
VS. )
) HON. RAY L. JENKINS
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF KNOX COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
LESLIE M. JEFFRESS JOHN KNOX W ALKUP
1776 Riverview Tower Attorney General and Reporter
900 S. Gay Street
Knoxville, TN 37902 MARVIN E. CLEMENTS, JR.
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
RANDALL E. NICHOLS
District Attorney General
CHARME JOHNSON
Assistant District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED ________________________
REVERSED AND REMANDED
DAVID H. WELLES, JUDGE
OPINION
The Defendant appeals as of right from the trial court’s dism issal of his
petition for post-conviction relief without conducting an evidentiary hearing and
without considering the merits of the petition. We reverse the judgment of the
trial court and remand this case for further proceedings.
The Defendant was originally convicted on a jury verdict of aggravated
sexual battery and was sentenced to serve thirty years as an especially
aggravated offender. This court affirmed his conviction on direct appeal in 1987.1
The Defendant apparently filed a timely petition for post-conviction relief alleging
that he received ineffective assistance of trial counsel. 2 The trial court has never
conducted an evidentiary hearing on the merits of the petition for post-conviction
relief.
This is the second time that the trial court has dismissed the petition for
post-conviction relief. The trial judge first dismissed the petition for “failure to
prosecute” in an order dated November 16, 1995. After the Defendant appealed
that dismissal, the State acknowledged that the dismissal was not supported by
the record and asked that the case be remanded to the trial court for further
consideration. This Court granted the State’s m otion, pointing out that the trial
court had not set forth in its order or a written memorandum all grounds
1
See Sta te v. W illiam Ho we ll, alias W illiam Lewis Ho we ll, C.C .A. No. 1113, K nox County (T enn .
Crim . App., Knoxville, June 30 , 1987).
2
The original petition for post-conviction relief is not found in the record on appeal. Both the
amended petition, which is in the record, and the trial judge’s order of dismissal, recite that the
original petition was filed November 30, 1988.
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presented in the petition with findings of fact and conclusions of law regarding
each ground as required by law. Tenn. Code Ann. § 40-30-118(b) (repealed
1995). If the trial court again determined that the petition should be dismissed
without an evidentiary hearing, the court was directed to “enter an appropriate
order setting forth its findings and its conclusions of law as to each of the claims
raised in the petition.” This order was entered by this Court on April 15, 1996.
On October 9, 1996, the trial court, apparently acting sua sponte, entered
a new order dismissing the petition. This was done without a hearing and
apparently without any notice to the Defendant or his appointed counsel. A few
days after the entry of the trial court’s order dismissing the petition a second time,
Defendant’s appointed counsel filed a motion requesting the trial court to
reconsider its dismissal. After hearing argument on the motion the trial court
denied the request, stating “W ell, at this juncture I’ve decided that it ought to be
dismissed, and if the Court of Criminal Appeals in its infinite wisdom decides that
it needs to be sent back, then I’ll hear it; otherwise no.”
It is readily apparent that the trial court did not adhere to or comply with the
order of this Court remanding this case on April 15, 1996. For this reason, we
must again reverse the order of the trial court dismissing the petition and again
remand this case for further consideration.
In the order dismissing this case after this Court had remanded it to the trial
court, the trial judge stated as reasons for dismissing the petition the following:
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From the initial filing of this petition, the defendant/petitioner
has had 26 hearing dates assigned and three attorneys appointed
to represent him at his request. On the last hearing date, November
16, 1995, the defendant/petitioner again requested a new attorney
and the Court dismissed the petition. As a result the Court finds that
the defendant has been furnished adequate time and sufficient legal
assistance to prosecute this petition, that he has refused and failed
to present any proof sustaining his allegations that would support
post-conviction relief, that he has failed to carry his burden of proof
either by preponderance of the evidence or clear and convincing
proof and has indeed abandoned his claim.
As a result the defendant/petitioner’s Petition is without merit
in each and every instance and the same is again DISMISSED.
As we have noted, this post-conviction petition was filed on November 30,
1988, and the trial court has never conducted an evidentiary hearing on or
addressed the merits of the allegations or grounds for relief raised in the petition.
During the entire time this petition has been pending in the trial court, the
Defendant has remained incarcerated in the Tennessee Department of
Correction. The record on appeal does not reflect why a hearing was not
conducted on any of the “twenty-six hearing dates” referred to by the trial judge.
Obviously, the Defendant cannot present any proof in support of his allegations
unless and until an evidentiary hearing is conducted, with the Defendant present
and afforded the opportunity to present testimony or other evidence. There is
nothing in this record to support the trial court’s finding that the Defendant has
abandoned his claim. While the Defendant’s petition for post-conviction relief
may well be totally without merit, there is simply nothing in this record that
supports this finding by the trial judge.
For the reasons stated in this opinion, we conclude that this case must be
again remanded to the trial court for further consideration. W e also conclude that
the interests of fairness, justice and judicial economy would be better served if
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a judge other than the trial judge who has twice dismissed this petition conducts
such further proceedings.
The judgment of the trial court is reversed and this case is remanded for
further proceedings. Upon remand, the Honorable Ray L. Jenkins shall be
recused from further consideration of this matter.
___________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
THOMAS T. WOODALL, JUDGE
___________________________________
JOHN K. BYERS, SENIOR JUDGE
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