Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Heath v. State

Court of Criminal Appeals of Tennessee, Nashville

August 7, 2017

CHRISTOPHER M. HEATH
v.
STATE OF TENNESSEE

          Assigned on Briefs June 20, 2017

         Appeal from the Circuit Court for Williamson County No. CR099064 Joseph Woodruff, Judge.

         Petitioner, 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.

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

          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., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE.

         Petitioner 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 of 2014.

         At 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 "imagine."

         After 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 driving.

         The 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 concurrently.

         Trial 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.

         Post-conviction 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.

         Post-conviction 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. Parker's appearance:

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 date.
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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.