IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE September 7, 1999
Cecil Crowson, Jr.
JULY SESSION, 1999 Appellate C ourt
Clerk
ARZOLIA CHARLES ) C.C.A. NO. 03C01-9808-CR-00288
GOINES, )
)
Appe llant, )
) KNOX COUNTY
VS. )
) HON. RAY L. JENKINS
STATE OF TENNESSEE and ) JUDGE
AUBREY L. DAVIS, )
)
Appellees. ) (Post-C onviction/D isbarm ent)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF KNOX COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
ARZOLIA CHARLES GOINES PAUL G. SUMMERS
Pro Se Attorney General and Reporter
N.E.C.X. Box 5000
Mountain City, TN 37683 ERIK W. DAAB
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
RANDALL E. NICHOLS
District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Appella nt, Arzolia Charles Goines, is an inmate in the Department of
Correction serving a life sentence as a habitual crimin al. 1 On June 11, 1998, he
filed a “Petition for Disbarment” in the Criminal Court of Knox County, alleging
that his attorney in a previou s post-conviction proceeding should be disbarred
because of ineffective a ssistanc e of counsel during the post-conviction
proceeding. The trial judge treated the petition as one for post-conviction relief
and dismissed it, primarily because it was time-barred. The Appellant appeals,
arguing that the trial court erred by dismissing the “Petition for Disbarm ent.” We
affirm the ju dgme nt of the trial co urt.
The Appellant’s petition na med A ubrey L. Davis as the respon dent. Mr.
Davis was the Assistant Public Defender who represented the Appellant in his
previous petition for post-conviction relief. In that previous post-conviction
proceeding, the trial judge denied the Appellant relief and this Court affirmed the
trial court’s decision.2 The petition for disbarmen t alleged num erous errors
committed by the original trial counsel, by the original trial judge, and by M r.
Davis, the post-conviction counsel. Although the petition sought disciplinary
action against the Appellant’s prior attorney, it also asked that the Appellant be
allowed to file a pro se appeal from the previous judgments entered against him.
The trial court dismissed the petition because (1) it was barred by the statute of
1
See State v. Arzolia Charles Goines, No. 1208, 1989 WL 34856 (Tenn. Crim. App.,
Knoxville, Apr. 14, 1989).
2
See Arzolia Charles Goines v. State, No. 03C01-9710-CR-00456, 1999 WL 162487
(Tenn. Crim. App., Knoxville, Mar. 24, 1999).
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limitations applicable to post-conviction petitions, (2) the Appellant had previously
filed a post-conviction petition attacking the same con viction, and (3) the
allegations of ineffective assistance of counsel had been previously determined.
The Appellant’s petition recites that it is filed pursuant to Tennessee Code
Annotated § 23-3-202 , which provides that proceedings for disbarment or
discipline of an attorney may be instituted in the circuit, chancery, or criminal
court of the county of th e attorney’s residence or where the “offense” was
committed. In this app eal, the A ppellant a rgues th at the trial judge erred by
treating his petition a s one for post-con viction relief. He arg ues tha t pursua nt to
the referenced statute, his petition should proceed as a petition for disbarment
against his post-conviction attorney, Aubrey L. Davis.
The statute provides that an attorney may be disbarred or suspended for
(1) committing an infamous crime or misdemeanor involving moral turpitude, (2)
impro perly soliciting employment, (3) wrongfully detaining a client’s money or
property, (4) frau dulen tly obtain ing ad miss ion to th e bar, o r (5) en gagin g in
unprofessional condu ct, dishonesty, malpractice, or other conduct rendering the
attorney unfit to be a member of the bar. Tenn. Code Ann. § 23-3-202.
Upon the filing of a petition pursuant to the above referenced statute, the
trial judge is directed to issue a citation requiring the attorney to appear and
answer within fifteen days of service o f process . Id. § 23-3-2 02(b). T he statute
contemplates that a “preliminary investigation” should be conducted by
“comm issioners appointed under the supreme court rules or the state or the local
bar association.” Id. § 23-3-202(c). If no such “preliminary investigation” has
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been made, the statute directs the trial judge to ap point a specia l master to
conduct an investig ation. Id. “Such proceedings shall be expedited and given
preceden ce over other b usiness of the c ourt . . . .” Id.
Initially, we note that in Ex pa rte Ch attano oga B ar Ass ’n, 566 S.W.2d 880
(Tenn. 1978), our supreme c ourt held that as a result of its adoption of the
disciplinary procedure now found in Rule 9 of the Rules of the Supreme Court,
the statutory scheme found in Tennessee Code Annotated § 23-3-202 was no
longer available as an alternative disciplinary procedure for use by any bar
association or bar co mm ittee. Id. at 884. The court specifically stated, howe ver,
“Any individual aggrieved by the act or c ondu ct of an attorne y may avail him self
of the statute, or of course may file his comp laint with the d isciplinary co unsel.”
Id; see also Wayne David son v. R oger D elp, No. 03A01-9711-CV-00518, 1998
W L 548750 (Tenn. Ct. App., Knoxville, Aug. 14 , 1998). But see John Wayne
Slate v. State, No. 03A01-9708-CV-00369, 1998 WL 102072 (Tenn. Ct. Ap p.,
Knoxville, Feb. 27, 1 998).
W e decline to find that the trial judge erred by treating the Appellant’s
pleading as a petition for post-conviction relief. A trial court is not bound by the
title of a plead ing. Norton v. Everh art, 895 S.W.2d 317, 319 (Tenn. 1995). Wh ile
this petition is clearly styled as a disciplinary action against an attorney, the
petition wa s filed by an inmate in the Tennessee Department of Correction and
alleges as ground s for disciplinary action only ineffective assista nce o f coun sel.
The ramblin g petition a lleges tha t counse l was ineffe ctive for failing to appeal
issues re lating to (1) the statute of limitations, (2) prosecutorial misconduct, (3)
improper cross-examination, (4) his right to a sequestered jury, and (5) the
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exclusion of African -American s from the jury. The petition also alleges that the
trial judge erred by not enforcing the Appellant’s right to a unanimous jury.
Furthermore, it alleges that the original indictment against the Appellant
contained a fatal variance and that an unconstitutional statute was used to render
the Ap pellan t a hab itual crim inal.
In addition to reque sting appropriate disciplinary action against M r. Davis,
the petition asks that the prior proceedings be stayed so that Appe llant may
appeal pro se after all the “paperwork” is returned to the Appellant. Although
ineffective assistance of counsel could fall within the definition of “unprofessional
condu ct” or “malpractice,” we do not construe the statute to require a trial judge
to proceed with disbarment proceedings based on such allegations of ineffective
assistance of counsel intertwined with allegations of error by the trial cour t, post-
conviction court, a nd ap pellate court. Under these circumstances, we do not
believe the trial court should be required to re-examine the petitioner’s allegations
in a proceeding brought in the form of a disbarment action against one of his
former attorneys. The A ppella nt is free to see k discip linary ac tion ag ainst h is
former a ttorney in ac cordan ce with R ule 9 of the Rules o f the Sup reme C ourt.
The judgment of the trial court is affirmed.
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____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
JOE G. RILEY, JUDGE
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