IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JULY SESSION, 1998 September 30, 1998
Cecil W. Crowson
LARRY T. CARTER, ) Appellate Court Clerk
C.C.A. NO. 01C01-9710-CR-00488
)
Appe llant, )
)
) DAVIDSON COUNTY
VS. )
) HON. ANN LACY JOHNS
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Co nviction Re lief)
FOR THE APPELLANT: FOR THE APPELLEE:
LARRY T. CARTER JOHN KNOX WALKUP
Pro Se Attorney General and Reporter
TDOC #83297
Middle Tennessee Correctional LISA A. NAYLOR
Complex Assistant Attorney General
7177 Cockrill Bend-Industrial Road 425 Fifth Avenu e North
Nashville, TN 37209-1005 Nashville, TN 37243-0493
VICTOR S. JOHNSON
District Attorney General
ROGER MOORE
Assistant District Attorney
Washington Square - Ste. 500
222-2nd Avenue N.
Nashville, TN 37201-1649
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
Appellant Larry T. Carter appeals the trial court's denial of his petition for
post-conviction relief. He pre sents the following issues for our consideration on
this appe al: (1) wheth er the trial co urt denie d Appe llant a full and fair evidentiary
hearing by failing to timely file its order dismissing his petition for post-conviction
relief; (2) whether there is a constitutiona l and statutory right to the effec tive
assis tance of counsel in post-conviction proceedings; and (3) whether the trial
court erre d in dism issing Ap pellant's p etition for po st-convictio n relief.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTUAL BACKGROUND
Appellant was c onvicte d by a ju ry in the Davidson County C riminal Court
on March 13, 199 1 of the follow ing offens es: four co unts of aggravated rape, one
count of aggravated sexual battery, four counts of rape, and one count of sexual
battery. As a Range II multiple offender, Ap pellant received an effective
sentence of one hund red ninety-eight years incarceration with the Tennessee
Department of Correction. This Court affirmed his conviction and sentence.
State v. Larry T. Carter, C.C.A. N o. 01C 01-911 0-CR -00308 , Davidso n Cou nty
(Tenn. Crim. App., Nashville, October 29, 1992). The Tennessee Supreme Court
denied permission to appeal on Jan uary 25, 1 993. perm. to appeal denied,
(Tenn. 19 93).
On July 20, 1995, Appellant filed his pro se petition for post-conviction
relief in the D avidso n Cou nty crim inal Co urt, alleg ing, inter alia, that his trial
counsel ineffectively represented him. The trial court conducted a hearing on the
petition on April 17, 1996. On May 12, 1997, the trial c ourt dis miss ed Ap pellan t's
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petition for post-co nviction relief. On June 16, 19 97, Ap pellan t filed an untim ely
notice of app eal.
Specifically, Appellant alleges the following deficiencies in his trial
counsel's representation:
(1) failure to present an alibi defense;
(2) failure to call Reba C arter, Appella nt's wife and the mother
of the two victims , to testify a s antic ipated in cou nsel's
opening statement; and
(3) failure to call Appellant to tes tify.
As stated previously, Appellant also complains about his post-conviction hearing.
It is these cla ims we will addres s first.
II. POST-CONVICTION RELIEF
In post-convic tion proceedings, the Appellant bears the burden of
proving the allegations raise d in the petition by clear a nd convincing evidence.
Tenn. Code Ann. § 40-30 -210(f). See als o Scott v. S tate, 936 S.W.2d 271, 272
(Tenn. Crim. App. 1996). Moreover, the trial court's findings of fact are
conclusive on appeal unless the evide nce pre ponde rates ag ainst the ju dgme nt.
Tidw ell v. State, 922 S.W .2d 497 , 500 (T enn. 19 96); Cam pbell v. State , 904
S.W.2d 594, 595-96 (Tenn. 199 5); Coop er v. State , 849 S.W.2d 744, 746 (Tenn.
1993).
A. FULL AND FAIR HEARING
Appe llant's first contention is that he was denied a full and fair hearing on
his post-conviction petition because the trial court failed to issue an ord er within
the time constraints set forth in Tenn. Code Ann. § 40-30-211(d). We disagree.
Tenn. Code Ann. § 40-30-211(d) provides:
(d) The cou rt shall rule within sixty (60) days of conclusion of
the proof. Su ch dea dline sha ll not be exte nded by
agreem ent, and s uch d eadlin e may be extended only by order
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of the court base d upon a findin g that unforeseeable
circumstances render a con tinuance a m anifest necess ity.
Such extension shall not exceed thirty (30) days.
Tenn. C ode Ann . § 40-30-211 (d).
Appe llant's eviden tiary he aring w as he ld on A pril 17, 199 6. On May 12, 1997,
more than one year later, the trial court entered an order dismissing Appe llant's
petition for p ost-con viction relief.
Nothing in the post-conviction procedure act prescribes either a remedy or
a sanction for a trial c ourt’s failure to comply with the time limits set out in Section
40-30-211 (d).1 Althoug h we do not cond one a fa ilure to comply with the law as
stated in Section 40-30-112(d), we reject the notion that such an error in this case
deprived Appellant of a full and fair hearing of his post-conviction claims. A full
and fair hearing of post-c onviction c laims is a hea ring wh erein th e petitio ner is
given every opportunity to present evidenc e and argum ent with respe ct to his
claims. See, House v. State, 911 S.W.2d 705, 711 (Tenn. 1995). Appellant was
afforded such an opportunity in this case. The fact that the final order was
entered in an u ntime ly fashion does not detract from the full presentation of
Appe llant’s claim s to the co urts. The refore, this iss ue is witho ut merit.
B. CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
DURING POST-CONVICTION PROCEEDINGS
Appellant next ur ges th is Court to conclude that the constitution al right to
effective assistance o f counsel sho uld be broad ened to ap ply in the context of
1
The only thing remotely resembling some sanction for a failure to comply with Section 40-30-
211(d) is an annual report to the general assembly by the administrative office of the courts as to the
com plianc e by th e trial c ourts with th e pre scrib ed tim e lim its. Pr esu ma bly this is so th e gen eral a sse mb ly
mig ht en act e ither e xpre ss s anc tions for th e trial c ourts or a re me dy for post -con viction litigant s sh ould
widespread or routine failure to comply with Sec. 40-30-211(d) app ear.
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post-conviction proceedings. To bo lster this assertion , he allege s that the P ost-
Conviction Proced ure Act o f 1995, T enn. Code Ann. § 4 0-30-20 1, et seq.,
created a statutory right to the effective assistance of counsel in post-conviction
proceedings. We disagree.
Both the Te nnes see S uprem e Cou rt and th is Cou rt have held th at there is
no constitutional right to the effective assistance of p ost-co nviction coun sel.
House v. State, 911 S.W .2d 705 , 712 (T enn. 19 95); State v. Phillips, 904 S.W.2d
123, 124 (T enn. C rim. App . 1995). See als o Penn sylvania v. F inley, 481 U.S.
551, 554-55, 107 S.Ct. 1990, 19 93, 95 L.Ed .2d 539 (198 7) (holding that there
exists no federal constitutional right to the effective assistance of post-conviction
counsel). Furthermore , Tenn . Code Ann. § 4 0-30-20 1, et seq., contains no
statutory right to the e ffective a ssista nce o f coun sel in the post-conviction setting.
This issu e is withou t merit.
III. EFFECTIVE ASSISTANCE OF COUNSEL
Appe llant's final claim on this appeal is that the trial court erred in denying
his petition for post-conviction relief based upon Appellant's allegation that he
receive d ineffe ctive as sistan ce of tria l and a ppella te cou nsel.
A. EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
The Sixth Ame ndmen t provides in part, "In all criminal prosecutions, the
accused shall enjoy the right. . . to have the assistance of counse l for his
defense." U.S. Const. amend. 6. Similarly, the Tennessee Constitution
guarantees an accused "the right to be heard by himself an d his cou nsel. . . "
Tenn. Const. a rt. I § 9. In Strickland v. Washington, the United States Supreme
Court articulated a two-prong test for courts to employ in evaluating claims of
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ineffective assistance of couns el. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). The Tennessee Supreme Court adopted Strickland's two-p art test in
Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The Strickland Court began
its analys is by no ting tha t "The benc hma rk for jud ging a ny claim of
ineffectiveness must be whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just resu lt." Strickland, 104 S.Ct. at 2064. When a convicted
defendant challenges the effective assistance of counsel in a post-conviction
proceeding, the Appellant bears the burden of establishing (1) deficient
representation of counsel an d (2) prejudice res ulting from that deficien cy.
Strickland, 104 S.Ct. at 2064; Powe rs v. State, 942 S.W.2d 551, 558 (Tenn. Crim.
App. 1996). Appellant must prove that counsel's representation fell below an
objective standa rd of reas onable ness. Strickland, 104 S .Ct. at 2 064. T his Court
is not require d to cons ider the two prongs of Strickland in any particular order.
Harris v. State, 947 S.W.2d 156, 163 (Tenn. Crim. App. 1996). "Moreover, if the
Appellant fails to establish one prong, a reviewing court need not consider the
other." Id. With reg ard to couns el's deficient perform ance, the proper m easure
is that of reasonableness under prevailing profession al norm s. Id. (citing
Strickland, 104 S .Ct. at 2 065). P ut differe ntly, cou nsel's perfor man ce is required
to be "within the range o f comp etence dema nded o f attorneys in crimina l cases."
Baxter v. Rose, 523 S.W .2d 930 , 936 (T enn. 19 75); Harris , 947 S.W.2d at 163.
Respecting the prejud ice prong of Strickland, the Appellant must establish that
"there is a reaso nable p robability that, but for counsel's unprofessional errors, the
result of the procee ding wo uld have been d ifferent. A reaso nable proba bility is
a probability sufficient to undermine confiden ce in the o utcom e." Strickland, 104
S.Ct. at 2068.
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The Strickland Court emphasized that "Ju dicial sc rutiny o f coun sel's
performance must b e highly de ferential." Id. at 2065 . "A `fair asse ssme nt . . .
requires that every e ffort be m ade to e liminate the distorting effects of h indsight,
to recons truct the circ umsta nces o f counse l's challeng ed con duct, and to
evaluate the co nduc t from c ouns el's pe rspec tive at the time.'" Goad v. State, 938
S.W.2d 363, 369 (Tenn. 1996) (quoting Strickland, 104 S.Ct. at 2065). The m ere
failure of a particular tactic or strategy d oes no t per se estab lish un reaso nable
representation. Id. at 369. H owev er, this Court will defer to counsel's tactical and
strategic choices only where those choices are informed ones predicated upon
adequ ate prepara tion. Goad, 938 S.W.2d at 369; Hellard v. S tate, 629 S.W.2d
4, 9 (Tenn. 1 982).
Regarding Appellant's first alleged deficiency, he specifically complains
that trial cou nsel p erform ed de ficiently a t trial by failing to present an alibi
defense. At the hearing on Appellant's post-conviction petition, trial counsel
testified that he and Appellant had discussed the trial strategy of discrediting the
two victims as well as oth er chara cter witnes ses. Th e attorne y testified that
Appellant understood this strategy. In its ord er dism issing Appe llant's petition for
post-conviction relief, the trial court concluded that because the victims resided
with Appellant and because the "criminal conduct was an ongoing part of [the
victims] daily existence. . ., the acts simply could not be tied to calendar dates by
the victims . There fore, a de fense o f alibi was no t available in th is case.
We conclud e it was reaso nable not to p resen t a defe nse o f alibi,
espe cially given that the victims could not identify specific dates on which the
offenses occurred. The trial court properly concluded that the attorney had
directed his efforts in a more appropriate direction by focusing on discrediting the
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testimony of the victims rather than pursuing a rather usele ss alibi d efens e. This
allege d defic iency d oes n ot ma ke ou t a claim of ineffe ctivene ss of co unse l.
W e find no merit in Appellant's second allegation that his trial attorney
rendered deficient representation by failing to call Appellant’s wife, Re ba Carter,
as a witness although he had mentioned her nam e during his open ing statem ent.
Counsel conceded that he had mentioned Reba Carter's name in his opening
statem ent. However, after the first day of the tria l, Reba Carte r purpo rtedly
threatened one of her daughters (the alleged victims) during a telephone
conversation. As a result of some of the comments made by Mrs. Carter to her
daughter during the telephone conversation, trial counsel advised Appellant that
it would be pro blem atic to u se Mr s. Car ter's testimony. Counsel further testified
that Appellant wanted counsel to make the final decision as to whether or not to
call Reba Carter. Finally, although counsel gave no explanation to the jury as to
the reason for not calling Mrs. Carter as a witness, the decision not to call Reba
Carter as a witness was a reasonable tactical choice under the circumstances.
Moreover, during the jury selection process, the trial court instructed the jury that
lawyers commonly added or deleted people from their list of potential witnesses
as the trial evolved and that such alterations were not significant. In light of the
foregoing, we c annot conc lude that the outco me of Ap pellant's trial would have
been different ha d Reba C arter been ca lled to testify.
Finally, Appellant erroneously asserts that trial counsel was in effective in
failing to present Appellant's testimony. At the post-conviction hearing, trial
counsel explained that he though t that it would b e detrim ental to A ppellant to
testify becau se this wo uld "ope n the do or" to cross -exam ination concerning
Appe llant's prior conviction for child sexual abuse. See, Tenn. R. Evid. 609. Trial
counsel successfully prevented the jury from becoming aware of this prior
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conviction, and given the n ature of the charges we conclude this was a prudent
strategic d ecision. T his issue is without m erit.
B. EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Appellant next urges this Court to conclude that the trial court e rrone ously
determined that he received effective assistance of counsel on appeal. How ever,
Appellant does not specifically enumerate the deficiencies of which he complains.
The same two-prong standard that is used in considering claims of
ineffective assistance of trial counsel is also employed to evaluate allegations of
ineffective assistance o f appellate couns el. See, e.g ., Porterfield v. S tate, 897
S.W.2d 672, 67 7-78 (T enn. 19 95). Typically, the decision about which iss ues to
raise on appeal is one that is left to the professional judgment and sound
discretion of appellate couns el. Porte rfield, 897 S.W.2d at 678; Coop er v. State ,
849 S.W.2d at 747.
Appr oxima tely one month after Appellant's trial, trial counsel filed a motion
to withdraw. However, according to counsel’s testimony at the post-conviction
hearing, he withdrew the motion because Appellant wanted counsel to continue
to represent him on appeal. Coun sel’s time sheet reflects that he spent over
51.3 out-of-court hours preparing Appellant's case for appeal. Trial counsel
raised ten issues on appea l to this Cou rt. Carter, C.C.A. No. 01C01-9110-CR-
00308, slip op. at 1-2. The trial attorney testified that after this Court issued its
decision in Appellant's case, counsel again filed a motion to withdraw. Given the
state of this record we can discern no insufficiency in counsel’s performance
during the direct appeal of this case.
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Accordingly, the judgment of the trial court is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
PAUL G. SUMMERS, JUDGE
___________________________________
DAVID G. HAYES, JUDGE
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Larry T. Carter v. State
Combined Opinion