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Kirkwood v. State

Court of Criminal Appeals of Tennessee, Jackson

August 7, 2017

KENNETH KIRKWOOD
v.
STATE OF TENNESSEE

          Assigned on Briefs May 2, 2017

         Appeal from the Criminal Court for Shelby County No. 09-07493 Chris Craft, Judge

         The Petitioner, Kenneth Kirkwood, appeals the dismissal of his petition for post-conviction relief, arguing that the post-conviction court erred in denying him a full hearing and concluding that he waived all his ineffective assistance of counsel claims by raising an allegation of ineffective assistance of counsel in his motion for new trial and on direct appeal. Following our review, we affirm the dismissal of the petition on the basis that the Petitioner has already been afforded an opportunity to litigate his ineffective assistance of counsel claim.

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

          Andrea D. Sipes, Jackson, Tennessee (on appeal); and Lindsey R. Steffgen Memphis, Tennessee (at hearing), for the appellant, Kenneth Kirkwood.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Carla L. Taylor, Assistant District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and J. Ross Dyer, JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE.

         FACTS

         In December 2012, the Petitioner was convicted by a Shelby County Criminal Court jury of especially aggravated robbery, especially aggravated kidnapping, use of a firearm during the commission of a dangerous felony, and aggravated burglary. He was subsequently sentenced by the trial court to an effective term of forty-five years in the Department of Correction at 100% as a violent offender. His convictions were affirmed by this court on direct appeal, and our supreme court denied his application for permission to appeal. See State v. Kenneth Kirkwood, No. W2013-01007-CCA-R3-CD, 2014 WL 4243764, at *1 (Tenn. Crim. App. Aug. 27, 2014), perm. app. denied (Tenn. Jan. 15, 2015).

         Our direct appeal opinion reveals that the Petitioner's convictions were based on his actions on April 28, 2009, when, assisted by an accomplice, he accosted the victim, Arnedra Taylor, in the driveway of her home, forced her at gunpoint inside her home, moved her from room to room as he searched for cash and valuables, took approximately $230 in cash and a laptop from her, and shot her in the hip, injuring her severely, before departing with his accomplice. Id. at *1-2. Ms. Taylor made both out-of-court and in-court identifications of the Petitioner as the man who accosted her in the driveway and shot her in the hip and of the Petitioner's co-defendant, William Acey, as the man who accompanied the Petitioner inside the home, helped search for valuables, and gave the Petitioner his gun to shoot the victim after the Petitioner's weapon jammed. Id. at *3-4. At the conclusion of the trial, the jury convicted the Petitioner of all indicted charges but acquitted Mr. Acey of all charges. Id. at *5.

         One of the issues the Petitioner raised in his motion for new trial, despite the warning of the trial court, was whether he was denied the effective assistance of trial counsel. Specifically, the Petitioner alleged that his counsel had at various times during the trial fallen asleep. In overruling the motion, the trial court noted that trial counsel had informed him at the start of the trial that he was taking cold medicine, which made him drowsy. The court also observed that it had watched counsel throughout the trial and "at no time . . . was [trial counsel] not ready." The trial court concluded that trial counsel had performed "adequately" and that the Petitioner had received a fair trial. Id. at *6.

         On direct appeal, the Petitioner "acknowledge[d] that his attorney's performance at trial 'fell within the range of competence demanded of attorneys in criminal cases'" but argued that he was also basing his ineffective assistance of counsel claim on counsel's performance during the hearing on the motion for new trial. The Petitioner asserted that counsel's performance during the hearing on the motion for new trial should be presumed prejudicial under the United States v. Cronic, 466 U.S. 648 (1984), standard because of counsel's complete failure to communicate with him or advise him regarding his ineffective assistance of counsel claim. Id. at *9-10. In rejecting the Petitioner's argument, this court first noted that trial counsel must have communicated with the Petitioner in some fashion for counsel to have included the ineffective assistance of counsel claim in the motion for new trial. This court also concluded, among other things, that the Petitioner failed to show that he was prejudiced by counsel's performance at the hearing. Id. at *10.

         On August 10, 2015, the Petitioner filed a pro se petition for post-conviction relief in which he raised a number of claims, including ineffective assistance of counsel. Following the appointment of post-conviction counsel, he filed an amended petition in which he alleged that his trial counsel was ineffective ...


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