Court of Criminal Appeals of Tennessee, Nashville
CHRISTOPHER M. HEATH
STATE OF TENNESSEE
Assigned on Briefs June 20, 2017
from the Circuit Court for Williamson County No. CR099064
Joseph Woodruff, Judge.
Christopher M. Heath, was convicted of driving under the
influence ("DUI"), fifth offense, and second
offense driving on a cancelled, suspended, or revoked
driver's license. He received an effective sentence of
fifteen months. There was no direct appeal. Petitioner sought
post-conviction relief. After a hearing at which Petitioner
did not appear and did not present any proof, the
post-conviction court dismissed the petition. Petitioner
appeals from the denial of post-conviction relief. After a
review, we affirm the judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Matthew J. Crigger, Brentwood, Tennessee, for the appellant,
Christopher M. Heath.
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Counsel; Kim Helper, District Attorney
General; and Carlin Hess, Assistant District Attorney
General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the court, in
which Alan E. Glenn and Robert H. Montgomery, Jr., JJ.,
TIMOTHY L. EASTER, JUDGE.
was indicted in May of 2013 by the Williamson County Grand
Jury for DUI; DUI with a blood alcohol content equal to or
greater than .08%; DUI with a blood alcohol content equal to
or greater than .20%; driving on a cancelled, suspended, or
revoked driver's license; DUI fifth offense; and second
offense driving on a cancelled, suspended, or revoked
driver's license. The matter proceeded to trial in August
trial, Deputy Mark Livengood of the Williamson County
Sheriff's Office testified that he arrived at the scene
of a one-car accident where he found Petitioner at the scene.
Petitioner was standing near the vehicle which was in a ditch
with the engine still running. The vehicle was discovered to
be registered to Petitioner, whose license was revoked.
Deputy James Gillam, another officer who responded to the
call, confirmed that there were empty beer cans and an empty
liquor bottle inside the vehicle and that Petitioner smelled
heavily of alcohol. Petitioner was described as unsteady on
his feet and told Deputy Livengood two or three times that he
was "going to jail." Petitioner performed poorly on
a finger dexterity test while seated on the hood of Deputy
Gillam's vehicle and informed the deputy that he had
"more" drinks than the officer could
signing the implied consent form, a blood alcohol test
revealed Petitioner's blood alcohol content was .31.
Neither of the officers who responded to the scene directly
asked Petitioner if he was driving the vehicle when it
wrecked, and neither officer saw Petitioner behind the wheel
of the vehicle. Deputy James Gillam explained that there was
no one "in the immediate area of the vehicle, " and
Petitioner never told the officers that anyone else was
jury convicted Petitioner of the offenses as charged in the
indictment. The parties stipulated that the conviction was
Petitioner's fifth offense for DUI and second offense for
driving on a cancelled, suspended, or revoked driver's
license. The trial court merged the convictions for DUI, DUI
with a blood alcohol content equal to or greater than .08%,
DUI with a blood alcohol content equal to or greater than
.20%, and DUI fifth offense. The trial court also merged the
two convictions for driving on a cancelled, suspended, or
revoked driver's license. As a result, Petitioner
received a total sentence of fifteen months to be served at
thirty percent for the DUI conviction and a sentence of
eleven months and twenty-nine days for the driving on a
cancelled, suspended, or revoked driver's license
conviction. The sentences were ordered to be served
counsel for Petitioner failed to file a notice of appeal. As
a result, there was no direct appeal of the convictions.
Petitioner filed several pro se motions, including: (1) a
petition for ineffective assistance of counsel; (2) a motion
for a copy of the preliminary hearing and trial transcripts;
(3) a motion for new trial; (4) a motion for a restricted
license; and (5) a motion to reduce his sentence. In the pro
se petition for ineffective assistance of counsel, Petitioner
alleged that trial counsel was ineffective for failing to
subpoena a witness, for failing to inform Petitioner of the
right to appeal his convictions, and for failing to defend
Petitioner to the best of his ability.
counsel was appointed and an amended petition was filed. In
the amended petition, the following were raised as
allegations of ineffective assistance of counsel: (1) trial
counsel's failure to subpoena Kenneth Parker "within
a reasonable amount of time prior to trial"; (2) trial
counsel's failure to discuss the right of appeal with
Petitioner; and (3) trial counsel's failure to file a
motion for new trial.
counsel introduced a copy of a subpoena issued for witness
Kenneth Parker to appear at the post-conviction hearing and
an affidavit from trial counsel as an attachment to the
amended petition for post-conviction relief. In the
affidavit, trial counsel stated that he was appointed to
represent Petitioner at trial. Trial counsel explained that
the case was set for trial three different times. The first
setting ended in a mistrial as a result of statements made by
Petitioner's sister in the presence of prospective
jurors. Petitioner failed to appear at the second setting of
the trial. On the third trial date, Petitioner was convicted.
Trial counsel explained the following with regard to Mr.
Approximately a week prior to the first setting of the trial,
Mr. Kenneth Earl Parker . . . willingly came to my office and
during my interview of him, stated that he was the one that
was driving the vehicle in question and at the time in
question as it relates to [Petitioner's] February 25,
2013 arrest for DUI.
Mr. Parker willingly attended the first setting of the trial
with the intent to testify on behalf of [Petitioner]. During
a pretrial hearing the Court ruled to exclude his testimony
based on the fact that [Petitioner] failed to timely [file a]
notice of alibi. . . .
Prior to the second setting of the trial, I requested a
subpoena for Mr. Parker. . . . I personally served Mr. Parker
with the subpoena prior to trial at my office. Mr. Parker
remained in contact with me and willingly participated in
calls and met with me in preparation for the second trial
Mr. Parker was present and prepared to testify at the second
setting of the trial.
Prior to the third setting, I was no longer able to get in
contact with Mr. Parker. It was relayed to me indirectly that
he was refusing to testify on [Petitioner's] behalf. I
did not request a subpoena for Mr. Parker ...