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Kizer v. State

Court of Criminal Appeals of Tennessee, Nashville

April 5, 2017

ROBERT KIZER
v.
STATE OF TENNESSEE

          Session: February 15, 2017

         Appeal from the Circuit Court for Houston County No. 4999 Larry J. Wallace, Judge

         In 2009, the Petitioner, Robert Kizer, pleaded guilty to sale of cocaine and was sentenced to twelve years of incarceration, with all but ninety days to be served on Community Corrections. In 2010, a Community Corrections violation warrant was issued, prompting the Petitioner to file a motion for post-conviction relief alleging that his sentence was incorrect and that he received the ineffective assistance of counsel. In 2012, a second violation warrant was issued, and, in 2013, the trial court revoked the Petitioner's Community Corrections sentence and dismissed his post-conviction petition. Later in 2013, the Petitioner filed a second petition for post-conviction relief. The post-conviction court held a hearing in 2015 following which it denied the petition. On appeal, the Petitioner claims that he received the ineffective assistance of counsel during his guilty plea hearing because his attorney lacked "legal authority" to represent him and because his attorney had a conflict of interest. After review of the record and applicable authorities, we affirm the post-conviction court's judgment.

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

          James L. Baum, Burns, Tennessee, for the appellant, Robert Kizer.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Wendell Ray Crouch, Jr., District Attorney General; and Talmage M. Woodall, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Robert L. Holloway and Timothy L. Easter, JJ., joined.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE

         I. Facts and Procedural History

         This case arises from two convictions for felony drug charges, for which the Petitioner received Community Corrections sentences. Thereafter, the trial court issued probation violation warrants and ultimately revoked the Community Corrections sentences. The Petitioner filed a petition for post-conviction relief, which the lower court dismissed as untimely and the Petitioner appealed. This Court provided a summary of the procedural history of the Petitioner's cases as follows:

[The] Petitioner entered into plea agreements on two charges of selling cocaine to confidential informants. One charge was based on a sale that occurred in Houston County on March 16, 2007. The other charge was based on a sale that occurred in Stewart County on April 16, 2008. [The] Petitioner appeared before the Stewart County Circuit Court on November 24, 2009, where he was represented by a public defender and pled guilty to both charges. He affirmed that he was aware of his rights and that he had entered into his pleas willingly and knowingly. The trial court accepted his pleas and sentenced him to six years for each charge, with his sentences to run consecutively. [The] Petitioner was ordered to serve the sentences on community corrections.
The trial court issued a probation violation warrant on June 30, 2010, and an amended warrant on November 8, 2010, and [the] Petitioner was taken into custody. The warrant alleged that [the] Petitioner tested positive for marijuana and cocaine, missed scheduled office visits, failed to make monthly payments on his court costs and supervision fees, and failed to perform community service work. After a hearing, he was found in violation of the conditions of his non-incarcerative sentence and was reinstated to community corrections with time served.
On November 23, 2010, [the] Petitioner filed a timely hand-written pro se petition for post-conviction relief in the Houston County Circuit Court. The post-conviction court subsequently filed an order in which it noted that the pro se petition was timely filed, granted a post-conviction relief hearing, appointed an attorney to represent the [P]etitioner in the post-conviction proceeding, and ordered the attorney to file an amended petition that complied with the statutory requirements.
The amended petition, filed on May 13, 2011, claimed that [the] Petitioner was deprived of effective assistance of counsel because the public defender who represented him had a conflict of interest and did not make him aware that consecutive meant back-to-back. [The] Petitioner stated that he believed that he was only being sentenced to six years total for both the Houston County and the Stewart County ...

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