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Presley v. State

Court of Criminal Appeals of Tennessee, Nashville

March 3, 2017

BOBBY DEWAYNE PRESLEY
v.
STATE OF TENNESSEE

          Assigned on Briefs June 21, 2016

         Appeal from the Circuit Court for Coffee County No. 41280 L. Craig Johnson, Judge.

         Petitioner sought post-conviction relief alleging that trial counsel's ineffectiveness prevented him from seeking a direct appeal. The post-conviction court denied relief after a hearing, finding that Petitioner failed to show he was prejudiced by trial counsel's actions. We determine that the record does not preponderate against the findings of the post-conviction court. Therefore, we affirm the denial of post-conviction relief.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

          Robin Ruben Flores, Chattanooga, Tennessee, for the appellant, Bobby Dewayne Presley.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Craig Northcott, District Attorney General; and Jason Ponder, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the Court, in which John Everett Williams, J. joined. Norma McGee Ogle, J., filed a separate dissenting opinion.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         The procedural history of this case spans nearly twenty-one years and is mystifying. In our review of the record, there appear to be several unanswered questions. Despite the lengthy history, a recitation of the chronology is necessary to untangle the issues on appeal.

         In May of 1995, an order was entered declaring Petitioner to be a habitual motor vehicle offender ("HMVO"). In March of 1999, Petitioner pled guilty to driving in violation of the HMVO order. In 2002, Petitioner attempted to set aside the 1995 HMVO order. The motion was denied, and Petitioner did not appeal that decision to this Court.

         In January of 2010, Petitioner was indicted for the offenses which eventually led to this appeal.[1] These charges included: violation of the HMVO order, three counts of reckless endangerment, disorderly conduct, resisting arrest, and vandalism. The affidavit of complaint stated that police were called to a residence in response to a reckless driving call after Petitioner drove his truck through a yard where seven young children were playing. Petitioner nearly missed a five-year-old, six-year-old, and seven-year-old. Petitioner apparently lost control of the vehicle while trying to get out of the yard. When he tried to back up, he almost struck the children again. When officers arrived and spoke with the victims, Petitioner came out of his residence and started yelling and cursing. Petitioner was asked to stop; Petitioner did not stop but became "belligerent and combative and physically resisted arrest by refusing to put his hands behind his back and physically trying to pull away."

         In March of 2010, for unspecified reasons, Petitioner's mother, Evelyn Smith, was appointed as power of attorney for Petitioner. After the jury trial, Petitioner was found guilty of violating the HMVO order, misdemeanor reckless endangerment, disorderly conduct, and resisting arrest. At his February 2011 sentencing hearing, the presentence report revealed an extensive criminal history. Petitioner's convictions began in 1983, when Petitioner was thirteen years of age, and culminating with the current offenses. At the time of the arrest for these offenses, Petitioner was on bond pending the imposition of an effective five-year sentence in two other cases which resulted in one conviction for possession of schedule VI drugs and two convictions for reckless aggravated assault.

         At the conclusion of the sentencing hearing, Petitioner was determined to be a career offender. The trial court enhanced the sentence based on the application of several enhancement factors and ordered consecutive sentencing on the basis that Petitioner committed a felony while on bail. As a result, Petitioner was sentenced to six years for violation of the HMVO order, eleven months and twenty-nine days for reckless endangerment, thirty days for disorderly conduct, and six months for resisting arrest. The offenses were ordered to be served consecutively to each other and consecutively to the sentence for which he was on bail at the time of the offenses.

         On the same day as the sentencing hearing, Petitioner filed a motion to again vacate the 1995 HMVO order. The motion alleged that the petition from 1995 incorrectly stated the offense for which he was arrested and the date of the offense. Petitioner alleged that if the correct date and offense had been set forth in the petition, he would not have qualified as an HMVO at the time of the original petition. The trial court denied the motion after a hearing. The trial court found that Petitioner was served with the petition, did not attend the hearing, and had already attempted unsuccessfully to collaterally attack his status as an HMVO in 2002.

         On September 6, 2011, trial counsel filed a notice of appeal. As of March 1, 2012, the transcript had not been filed and trial counsel had not yet filed a brief in this Court. This Court issued an order to show cause directing trial counsel to inform the court why he should not be held in contempt for failure to timely file a brief. Subsequently, trial counsel filed a motion to supplement the record with the transcripts of the trial, sentencing hearing, and motion for new trial. This Court granted the motion on March 28, 2012.

         On August 31, 2012, an emergency motion to substitute counsel was filed. On October 18, 2012, trial counsel was removed as counsel of record and replaced with appellate counsel.[2] On December 14, 2012, appellate counsel filed a motion to correct or modify the record in the direct appeal with a complete transcript of the trial proceedings.

         Although the timing is not entirely clear, at some point during the pendency of the appeal, Petitioner filed a complaint against trial counsel with the Board of Professional Responsibility. Trial counsel responded to the complaint by letter in March of 2013. Appellate counsel received a copy of the letter. In the letter, trial counsel explained various things that happened during the pendency of the appeal to thwart his efforts to represent Petitioner. First, trial counsel explained that he attempted to obtain the transcript of the trial but was informed by the court reporter in April of 2012 that the equipment had malfunctioned and she would not be able to provide a transcript. The court reporter supplied an affidavit explaining that the transcript was not available. In July of 2012, trial counsel suffered a heat stroke. In August of 2012, trial counsel was forced to vacate the building in which his law office was housed. Trial counsel started operating out of his personal residence and moved a large portion of the items associated with his law practice into storage. During the move, trial counsel aggravated a back injury. Somehow, current client files got moved into storage by the movers. At the time trial counsel answered the complaint, he was unable to locate Petitioner's file. Trial counsel claimed that he had not been contacted by appellate counsel about the case. Trial counsel noted that he contacted appellate counsel and sent him a copy of the court reporter's letter and affidavit as well as a copy of the response to the complaint filed by Petitioner. Further, trial counsel explained that, in his opinion, Petitioner's mother, Ms. Smith, was confused about Petitioner's status as an HMVO but that any irregularities in the dates on the order made the order voidable rather than void.

         Between December of 2012 and September of 2013, Petitioner's direct appeal essentially remained stagnant. Trial counsel was replaced with appellate counsel but a transcript of the trial remained unfiled. On March 19, 2013, this Court filed an order noting that the supplemental record had not yet been filed. This Court ordered Petitioner to either file the supplemental record or notify the Court about difficulty experienced with the filing of the supplemental record within ten days.

         On September 18, 2013, nearly six months later, this Court entered an order noting that the supplemental record of the transcript of the trial had not been filed because the court reporter was unable to transcribe the trial due to technical problems. This Court remanded the matter to the trial court to determine if a transcript of the trial could be produced. If no transcript could be produced, the court ordered the trial court to "follow the procedure outlined in Rule 24(c) for creating a statement of the evidence." This Court also directed the trial court to enter a written order if there was "any difficulty in creating a statement of the evidence."

         It is unclear if the trial court ever ascertained the status of a transcript or statement of the evidence because on December 2, 2013, Petitioner filed a motion to voluntarily dismiss the direct appeal. The motion was filed through Defendant's mother, Ms. Smith, who retained power of attorney over Petitioner. On December 27, 2013, the direct appeal was dismissed.

         On June 6, 2014, Petitioner filed a petition for post-conviction relief. In the petition, he alleged that trial counsel was per se ineffective in his defense for failure to preserve the record, failure to cooperate with appellate counsel, and failure to prepare a statement of the evidence in the absence of a transcript.

         At the hearing on the post-conviction petition, Ms. Smith testified that she was Petitioner's mother and that she possessed power of attorney for Petitioner. She was responsible for retaining trial counsel to represent Petitioner.[3] After Petitioner was convicted, she retained trial counsel for appeal purposes. Ms. Smith testified that she spoke with trial counsel about three weeks after the appeal was filed and then again probably about once a month for the next few months. Several months after the appeal was filed, Ms. Smith went to trial counsel's office to discuss the appeal and found the office "empty." She had not been notified by trial counsel that the office was being relocated. Ms. Smith "kept trying to call" but was unable to get in touch with trial counsel. Ms. Smith eventually spoke with trial counsel's wife who informed her that Petitioner's files were "locked away, and she would have to dig through a lot of stuff to find them."

         Petitioner testified at the hearing on the post-conviction petition, albeit briefly. He claimed that he did not speak with, receive visits from, or receive documents from trial counsel during the pendency of the direct appeal. Petitioner could not recall if he testified at trial, then claimed he "testified [he] wasn't driving." Petitioner admitted there were "probably some, but [he didn't] remember who because there was a bunch of people" who testified that he was not driving.

         Trial counsel testified that, at the time of the hearing in December of 2014, he had been licensed to practice law for thirty-three years. He complained of back, leg, and hip problems. To deal with those health problems, trial counsel took pain medication including hydrocodone and Percoset. Trial counsel also took meloxicam for arthritis and muscle relaxers. Trial counsel admitted that he had taken pain medication "off and on since '75" but that "in the last three years, [he had taken the medication] almost every day."

         Trial counsel handled numerous matters for Petitioner, including filing the notice of appeal for the direct appeal from Petitioner's convictions and ordering a transcript. Trial counsel was made aware of the fact that no transcript had been filed when he received a notice from the Court of Criminal Appeals. Trial counsel got in touch with the court reporter and learned that a glitch in the system prevented retrieval of the materials in Petitioner's trial. Trial counsel received an affidavit from the court reporter stating why she was unable to ...


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