Assigned on Briefs April 11, 2017
from the Criminal Court for Shelby County No. 13-03267 Paula
L. Skahan, Judge.
Douglas Martinez, appeals the denial of his petition for
post-conviction relief. Because the record is inadequate for
our review, we affirm the judgment of the post-conviction
court. However, an error in the judgment form necessitates a
remand for correction of the judgment to reflect the proper
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Affirmed and Remanded.
Mogy (at hearing and on appeal) and Bradley Eiseman (at
hearing), Memphis, Tennessee, for the appellant, Douglas
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Assistant Attorney General; Amy P. Wierich,
District Attorney General; and Pamela Stark, Assistant
District Attorney General, for the appellee, State of
Timothy L. Easter, J., delivered the opinion of the court, in
which Alan E. Glenn and J. Ross Dyer, JJ., joined.
TIMOTHY L. EASTER, JUDGE.
the scant record on appeal, we can surmise that Petitioner
was indicted by the Shelby County Grand Jury in July of 2013
for one count of aggravated sexual battery. The judgment form
indicates Petitioner entered a guilty plea to attempted
aggravated sexual battery, a Class C felony, in exchange for
a five-year sentence in a workhouse as a Range I, standard
offender. No transcript from the guilty plea hearing appears
in the record on appeal. The judgment form, entered on July
17, 2014, reflects that Petitioner would be subject to
mandatory supervision for life and was required to register
as a sex offender. The judgment form indicates that the
indicted offense was "T.C.A. § 39-13-504 AGGRAVATED
SEXUAL BATTERY" and that the conviction offense was
"T.C.A. § 39-13-101 C[riminal] A[ttempt] AGG SEX
BATTERY." Tennessee Code Annotated section 39-13-101 is
the statute defining misdemeanor assault. Tennessee Code
Annotated section 39-12-101 is the statute defining criminal
attempt. On remand, the post-conviction court should enter an
amended judgment reflecting Petitioner's conviction for
attempted aggravated sexual battery under Tennessee Code
Annotated sections 39-12-101 and 39-13-504.
October of 2014, Petitioner filed a pro se petition for
post-conviction relief in which he raised various grounds of
ineffective assistance of counsel, prosecutorial misconduct,
and an unknowing and involuntary guilty plea. Counsel was
appointed and an amended petition was filed.
point, an evidentiary hearing was held on the petition. At
the hearing, an associate of appointed counsel appeared and
represented Petitioner. According to the technical record,
Petitioner filed a motion to dismiss counsel on the day of
the hearing but orally retracted the motion "after
careful consideration of his right to counsel and his right
to proceed pro se." No transcript from the
post-conviction hearing appears in the record on appeal. In
an order denying relief entered on January 7, 2016, the
post-conviction court recounted Petitioner's fourteen
allegations of ineffective assistance of counsel and
determined that Petitioner failed to establish that he was
entitled to relief. Petitioner filed a pro se notice of
appeal with this Court. Petitioner also filed a pro se
"order requesting transcripts for post-conviction
hearing, " and a "motion to appoint coun[se]l"
in this Court.
this Court received the notice of appeal and accompanying
technical record from the trial court, the record did not
reflect whether appointed counsel had withdrawn from
representation of Petitioner for purposes of appeal.
Therefore, on May 17, 2016, this Court remanded the matter to
the post-conviction court to determine whether Petitioner was
represented by counsel or would proceed pro se on appeal.
post-conviction court entered an order on June 3, 2016,
finding that appointed counsel was never discharged from his
representation of Petitioner and effectively failed to follow
Tennessee Supreme Court Rule 13 section 1(e)(5) by not
following the case to its conclusion. The post-conviction
court appointed substitute counsel who happened to be the
associate of appointed counsel who had appeared for
Petitioner at the post-conviction hearing.
month later, on June 30, 2016, substitute counsel filed a
motion with this Court seeking to dismiss the appeal. On July
11, 2016, this Court denied the motion because it was not
accompanied by a signed statement of Petitioner in accordance
with Rule 11 of the Tennessee Court of Criminal Appeals.
Substitute counsel failed to file a brief within the
thirty-day time limit. Eventually, in October of 2016, a show
cause order was issued for substitute counsel due to his
continued failure to file a brief on behalf of Petitioner.
Substitute counsel filed a second motion to dismiss the
appeal on November 2, 2016. For the second time, the motion
was not accompanied by a signed statement of Petitioner. On
December 15, 2016, this Court again denied the motion. In
addition, this Court ordered substitute ...