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Benson v. State

Court of Criminal Appeals of Tennessee, Jackson

January 19, 2018

ANDRE BENSON
v.
STATE OF TENNESSEE

         Session October 3, 2017

          Appeal from the Criminal Court for Shelby County No. 09-05910 Glenn Ivy Wright, Judge

         The Petitioner, Andre Benson, was convicted of aggravated robbery after a jury trial and was sentenced to serve fifteen years in prison. The Petitioner filed a timely post-conviction petition, and the post-conviction court denied the petition without a hearing for failure to state a colorable claim. The Petitioner then filed a second petition, raising a claim of ineffective assistance of counsel. The post-conviction court held a hearing on the second petition, which it proceeded to deny. On appeal, the Petitioner contends that he received the ineffective assistance of his counsel at trial and that, as a result, he is entitled to post-conviction relief. The State counters that the post-conviction court lacked jurisdiction to hear a second post-conviction petition when a prior petition was decided on the merits. Alternatively, the State argues that the petition was without merit and that the denial should be affirmed. We conclude that the post-conviction court was required by statute to dismiss the second or subsequent petition, and we affirm the denial of post-conviction relief.

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

          Patrick E. Stegall, Memphis, Tennessee, for the appellant, Andre Benson.

          Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior Counsel; Amy P. Weirich, District Attorney General; and Austin Scofield, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         The Petitioner was charged with aggravated robbery and especially aggravated kidnapping, and he was convicted as charged after a jury trial. State v. Andre Benson, No. W2011-02566-CCA-R3-CD, 2013 WL 3991820, at *1 (Tenn. Crim. App. Aug. 2, 2013) perm. app. denied (Tenn. Dec. 11, 2013). The victim of the crimes identified the Petitioner as the perpetrator at a preliminary hearing, but she suffered from progressive dementia. Id. Accordingly, prior to trial, the trial court held a competency hearing in which the victim's doctor, Dr. Robert Burns, testified that in his medical opinion, the victim was competent to testify at the time of the preliminary hearing but no longer competent to testify in court. Id. at *1-2. Trial counsel objected to the admission of the victim's prior testimony but did not object to the admission of Dr. Burns's testimony despite the fact that he was never qualified as an expert by the trial court. Id. at *2, 9.

         On direct appeal, this court affirmed the aggravated robbery conviction. Id. at *1. In doing so, this court concluded that the Petitioner waived any claim that the failure to qualify Dr. Burns as an expert mandated the exclusion of his testimony. Id. at *8-9. This court reversed the conviction for especially aggravated kidnapping because the trial court failed to give an instruction pursuant to State v. White, 362 S.W.3d 559 (Tenn. 2012).[1]Andre Benson, 2013 WL 3991820, at *12.

         The Petitioner filed a post-conviction petition on September 25, 2014. The post-conviction court denied the petition on October 30, 2014, for failure "to state a colorable claim that has not been previously determined to be without merit." In its order, the post-conviction court noted that "[t]he only issue that could be determined by a post[-]conviction evidentiary hearing would be the actual declaring of Dr. Burns as an expert based on his credentials, " and that "[t]here is nothing new for any jury to determine that has not already been litigated both at trial and on appeal."

         The Petitioner then filed a second post-conviction petition on December 4, 2014, still within the statutory limitations period. This petition reflects that, in addition to claims that were previously litigated or waived, the Petitioner raised a claim that trial counsel was ineffective in failing to object to the use of Dr. Burns's testimony. The petition averred that the Petitioner had not filed a prior petition for post-conviction relief.

          The Petitioner did not file a timely appeal from the denial of his first petition. Instead, on January 27, 2015, he filed a motion requesting permission to file a late notice of appeal. This court entered an order directing the Petitioner to supplement the record with "any information regarding his convictions and … the post-conviction court's order denying his petition." On February 19, 2015, the Petitioner filed additional material with this court, including what appears to be a copy of his second petition for post-conviction relief, with a certificate of service dated December 4, 2014. The Petitioner ultimately supplemented the record with the post-conviction court's order denying relief and a handwritten document that appears to be his original petition for relief. This document makes no claims regarding ineffective assistance of counsel. On March 25, 2015, this court denied the motion to accept a late-filed notice of appeal related to the first petition. This court concluded that the Petitioner was seeking relief under the theories that "(1) the victim's absence at a competency hearing and at trial violated his federal and state constitutional rights and (2) the trial court erred ...


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