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Howell v. State

Court of Criminal Appeals of Tennessee, Nashville

December 19, 2019

JUSTIN C. HOWELL
v.
STATE OF TENNESSEE

          Assigned on Briefs July 16, 2019

          Appeal from the Circuit Court for Williamson County No. 170128 Michael Binkley, Judge

         The Petitioner, Justin C. Howell, appeals the Williamson County Circuit Court's denial of his petition for post-conviction relief, arguing he received ineffective assistance of counsel. After review, we affirm the denial of the petition.

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

          Matthew J. Crigger, Brentwood, Tennessee, for the appellant, Justin C. Howell.

          Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; and Kim R. Helper, District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which Thomas T. Woodall and Norma McGee Ogle, JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE

         FACTS

         The Petitioner was indicted for three counts of aggravated kidnapping, one count of especially aggravated kidnapping, four counts of aggravated robbery, four counts of aggravated assault, one count of aggravated burglary, and one count of theft over $1000 arising out of his involvement in a home invasion during which the occupants were threatened with weapons and property was stolen. The Petitioner entered a negotiated plea agreement whereby he pled guilty to the four counts of aggravated robbery and one count of aggravated burglary in exchange for a sentence of eleven years and dismissal of the remaining charges. The trial court accepted the agreement and entered judgments on February 18, 2016.

         The post-conviction history in this case is extensive. On February 21, 2017, the Petitioner's father filed a post-conviction petition on his son's behalf in which he alleged, among other things, ineffective assistance of counsel. Subsequently, on March 20, 2017, the Petitioner filed a pro se petition for relief that he titled as an amended petition, in which he alleged, among other things, ineffective assistance of counsel. Presumably unaware the amended petition had been filed, the post-conviction court entered an order on March 30, 2017, dismissing the original petition filed by the Petitioner's father, reasoning that the petition was filed after the statute of limitations expired, that it could not be filed by the Petitioner's father, and that the Petitioner did not sign the petition. On April 10, 2017, the Petitioner filed a pro se motion to alter judgment, asserting that the post-conviction court was in error in dismissing the petition for untimeliness because the judgments did not become final until March 20, 2016, and failing to consider his pro se petition. Thereafter, on April 21, 2017, the Petitioner filed a pro se notice of appeal.

         On May 1, 2017, the post-conviction court entered a preliminary order, finding that the petition stated a colorable claim for relief and appointing counsel. That same day, the post-conviction court entered another order in which it set aside its March 30, 2017 order dismissing the petition, finding that the Petitioner remedied the deficiencies in the original petition with the amended petition.

         On May 22, 2017, the post-conviction court appointed counsel to represent the Petitioner on his pro se appeal of the dismissal of the original petition for post-conviction relief. On June 19, 2017, this court entered an order approving the voluntary dismissal of the initial appeal. Finally, on September 12, 2017, the post-conviction court reacquired jurisdiction when it entered an order reaffirming and incorporating by reference its May 1, 2017 preliminary order.

         The Petitioner filed a second amended petition for post-conviction relief on December 18, 2017. In this petition, he specifically alleged, relevant to this appeal, that he received ineffective assistance of counsel because counsel failed to file a motion to suppress phone ...


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