Gregory L. Anderson v. State of Tennessee ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 20, 2006
GREGORY L. ANDERSON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2002-T-50 Mark J. Fishburn, Judge
No. M2005-02878-CCA-R3-PC - Filed Janaury 24, 2007
Aggrieved of his driving under the influence (DUI), fifth offense, conviction, the petitioner, Gregory
L. Anderson, sought post-conviction relief, which was denied by the Criminal Court for Davidson
County after an evidentiary hearing. On appeal, the petitioner pursues his claim of ineffective
assistance of trial and appellate counsel. We affirm the denial of post-conviction relief.
Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.
JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL
and JOHN EVERETT WILLIAMS, JJ., joined.
Kimberly S. Hodde, Nashville, Tennessee, for the Appellant, Gregory L. Anderson.
Robert E. Cooper, Jr., Attorney General & Reporter; Elizabeth B. Marney, Senior Counsel Criminal
Justice Division; Victor S. Johnson, III, District Attorney General; and Jennifer Tackett, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
The petitioner stands convicted of DUI, fifth offense, following a 2002 jury trial in
Davidson County Criminal Court. He received a two-year sentence, as a Range I offender, 200 days
of which were to be served in custody, followed by two years’ probation. On direct appeal, the
petitioner unsuccessfully raised two issues: (1) the trial court’s failure to suppress evidence obtained
as a result of his arrest at a sobriety checkpoint; and (2) the denial of his motion in limine to exclude
testimony at trial regarding his use of a racial slur. See State v. Gregory L. Anderson, No. M2002-
02289-CCA-R3-CD (Tenn. Crim. App., Nashville, Oct. 31, 2003).
Relevant to the roadblock challenge, the court on direct appeal ruled,
The defendant contends that the officer did not have
reasonable suspicion or probable cause to pull the defendant over for
further investigation. He argues that the officer could not determine
whether the smell of alcohol was coming from the defendant or the
passenger. Not only did the officer detect the odor of alcohol, the
defendant admitted that he had been drinking. While this did not give
the officer probable cause to arrest the defendant for DUI, it was
enough to “establish the right of the officer to briefly detain the
defendant at the scene and administer field sobriety tests or otherwise
ascertain defendant’s state of sobriety. The defendant’s argument on
this issue is without merit.
Id., slip op. at 4 (citation omitted).
The defendant also contends that General Order 410-1,
establishing the guidelines for sobriety checkpoints, is
unconstitutional because of paragraph III C 5, which states: “Only
upon observing a noticeable sign of possible intoxication or other
offense will further inquiry be warranted.” In developing the
constitutional guidelines for roadblocks in Tennessee, our supreme
court relied on Michigan v. Sitz, 496 U.S. 444 (1990). In Sitz, all
vehicles were stopped and the drivers were checked for signs of
intoxication. Sitz, 496 U.S. at 447. If the officer detected possible
intoxication, the vehicle was pulled into a pre-determined location for
further inquiry. Id. The facts in this case are almost identical to Sitz.
Paragraph III C 5 of the General Order is not unconstitutional in
allowing officers to briefly detain motorists who exhibit signs of
possible intoxication. The defendant’s argument on this issue is
without merit.
Id. (citation omitted).
The defendant [also] contends that the sobriety checkpoint
was illegal because it did not substantially comply with the
Department of Safety guidelines. . . .
1. Roadblock site not established based on knowledge
General Order 410-1 paragraph A 1 provides: “Individual site
selections will be based on the knowledge of alcohol-related crashes
and the knowledge of DUI arrests in a particular area.
Documentation of site selections will be maintained on file by the
District/Division Captain.” The defendant contends that the State
provided no proof or testimony regarding this issue. Therefore, the
roadblock was illegal.
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The trial court found that the list of pre-approved sites showed
that some thoughtfulness and thoroughness went into selecting the
sites. The court found that the fact that this site was on the
pre-approved list showed that they most likely reviewed the
appropriate data in selecting the site. The inference drawn by the trial
court is reasonable. . . . Officer Jennings testified that the roadblock
site was selected by his superiors, the location was on the list of
pre-approved roadblock sites, and there were numerous senior
officers present. We hold that the trial court did not err in finding that
the sobriety checkpoint in this case substantially complied with
paragraph III A 1 of the guidelines.
2. No adequate warnings site was ahead
The defendant also contends that the roadblock did not
substantially comply with paragraph III A 3 of the guidelines. The
pertinent section states: “The location must give motorists adequate
prior warning that a roadblock is ahead.” The defendant argues that
there were no warning signs visible at the roadblock site. Trooper
Jennings testified that he saw illuminated signs at the scene, but he
did not actually see them in place. The defendant testified that he did
not see any signs. The trial court found that since the signs were
present at the scene, they were probably used.
The record before us does not preponderate against the trial
court’s finding on this issue. Even if there were no signs displayed
at the scene, it would not be dispositive of whether there was
substantial compliance with the adequate warnings requirement.
While [State v.] Downey[, 945 S.W.2d 102 (Tenn. 1997),] did list
adequate warnings as one of the factors in determining the
constitutionality of a roadblock, the court went on to say that no
single factor is dispositive of the issue. The record indicates that
there was adequate warning to approaching motorists even without
any signs. Trooper Jennings testified that the officers were wearing
reflective vests, orange cones were in place, blue lights were flashing,
numerous marked police vehicles were on the scene, and the location
was in a well-lit, visible area. The trial court did not err in finding
that the roadblock substantially complied with the adequate warnings
requirement.
Gregory L. Anderson, slip op. at 4-5 (citation omitted).
Relevant to the motion in limine, the court on direct appeal ruled,
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The defendant argues that testimony of his use of the word
“nigger” in referring to Trooper Jennings was not relevant to his level
of intoxication. The State contends that it was relevant to show his
level of intoxication in light of his use of such an inflammatory and
derogatory word in front of his passenger and the trooper, both of
whom are African-American. . . . The racial slur was relevant to show
the defendant’s belligerence and that he was impaired. The trial court
did not abuse its discretion in finding that testimony of his use of the
racial slur was relevant to show the defendant’s level of intoxication.
The defendant also argues that the probative value of the
testimony concerning his use of the racial slur was substantially
outweighed by unfair prejudice. We certainly agree with the
defendant and the trial court that the racial slur used by the defendant
in referring to Trooper Jennings is inflammatory. While this Court
deplores the defendant’s use of such a word, it was the defendant’s
choice to say it. In the context that the racial slur was used, it was
clearly probative of the defendant’s state of mind at the time. As the
State points out, the defendant’s passenger and Trooper Jennings are
African-American. The testimony goes to show that the defendant
was not in control of his faculties and used poor judgment, more
probable than not influenced by his use of alcohol. We hold that the
probative value of the testimony concerning the defendant’s use of a
racial slur was not substantially outweighed by the danger of unfair
prejudice.
Id., slip op. at 5-6.
Within one year of the court’s opinion on direct appeal, the petitioner filed a petition
for post-conviction relief. The petition alleged ineffective assistance of trial counsel based on the
following actions and omissions:
(1) the failure to “make adequate pretrial filings” on the suppression
and motion-in-limine issues;
(2) the failure to “advocate these issues with the tenacity and fervor
that Sixth Amendment compliant advocacy requires”;
(3) the commission of “critical errors of legal judgment during the
Suppression Hearing that promoted an erroneous denial” of the
motion;
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(4) the failure “to adequately impeach the trial testimony of Trooper
Jennings”;
(5) the failure to make a Rule 29 Motion for Judgment of Acquittal
at the conclusion of the State’s proof and at the close of the proof;
and
(6) the failure “to adequately brief” the issues in the motion for new
trial.
The petition further alleged ineffective assistance of appellate counsel based on the
following actions and omissions:
(1) the failure to adequately communicate with the petitioner during
the pendency of the appeal;
(2) the failure to allow the petitioner to view, in advance of filing, the
appellate brief and to discuss its contents;
(3) the submission of a “shoddy” brief on appeal;
(4) the failure to advise the petitioner of his right to file a petition for
rehearing; and
(5) the failure of newly retained appellate counsel to file a Rule 11
application for permission to appeal.1
The post-conviction court conducted an evidentiary hearing on March 21, 2005. The
petitioner testified as did his brother, Brian Anderson, and the petitioner’s trial and appellate counsel.
The petitioner testified that he retained the services of trial counsel prior to the preliminary hearing.
At the preliminary hearing, the arresting officer, Trooper Jennings, testified and related that the
petitioner made a racial slur. The petitioner denied making any such slur and told trial counsel as
much. The petitioner also disputed other facets of the trooper’s testimony, and the petitioner testified
that in his opinion the trooper perjured himself at the preliminary hearing. The petitioner and trial
counsel clashed over how to deal with the trooper’s preliminary hearing testimony, and the petitioner
asserted that at some point trial counsel had him “sign a thing where [he] wouldn’t interfere with his
legal judgment.”
1
The petition also alleged prosecutorial misconduct and raised anew the constitutionality of the roadblock and
the admission of the racial slur, which had been previously decided on direct appeal. The petitioner does not pursue
these grounds on appeal and confines his argument to ineffective assistance of trial and appellate counsel.
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The petitioner claimed that, after his case was bound over to the grand jury, trial
counsel never discussed with him filing pretrial motions. The petitioner said that he learned about
the roadblock suppression motion the day of the hearing and that he did not actually receive a copy
of the motion until after the hearing. The petitioner was very concerned about the racial slur and
wanted any testimony about it excluded at trial.
Trooper Jennings also testified at the suppression hearing. In the petitioner’s opinion,
that testimony was inconsistent with the testimony given at the preliminary hearing, but counsel did
not exploit the inconsistencies such that the trial court found the trooper’s testimony to be credible
in connection with denying the suppression motion. The petitioner testified that approximately 10
minutes before the hearing, trial counsel asked him to testify that he did not see any roadblock signs
at the checkpoint. The petitioner did not feel that he was prepared to testify.
The petitioner testified that he was not involved in pretrial preparation, had not before
attended or participated in a jury trial, and was not prepared to give trial testimony. The petitioner
said that testifying was first mentioned to him as the trial was underway. Although trial counsel
wanted the petitioner to testify, the petitioner did not because he “was not prepared.” After the jury
found the petitioner guilty, trial counsel continued to represent the petitioner. Trial counsel filed a
new trial motion but did not discuss beforehand any of the issues to be raised on appeal. Also
without consulting the petitioner, counsel prepared and filed an appellate brief with the Court of
Criminal Appeals. The petitioner testified that after he received a copy of the brief and reviewed it,
he noticed that the “citation to the transcripts were all erred and [he] believed, it seemed like there
was something missing out of it.” The petitioner discussed the problems with counsel and directed
counsel to file a corrected brief, which counsel did.
The petitioner related that after his conviction was affirmed on appeal, he retained
different counsel to prepare and file a Rule 11 application for permission to appeal to the Tennessee
Supreme Court. That attorney was already representing the petitioner on another offense, for which
the petitioner was being detained pretrial. The petitioner claimed that new counsel quoted a fee of
$3,500 for the Rule 11 application and that the petitioner’s brother handled the arrangements for
hiring new counsel. At the post-conviction hearing, the petitioner identified a letter dated January
14, 2004, from new counsel advising that he had not filed a Rule 11 application and asking for a
mailing address to return the retainer fee.
On cross-examination, the petitioner pinpointed the conclusion of the suppression
hearing in criminal court as the time when he began to get upset and have concerns with trial
counsel’s representation. Even so, the petitioner did not discharge trial counsel. The petitioner
acknowledged that counsel presented an oral motion at trial to exclude the racial slur, that the trial
judge conducted a hearing on the motion, and that the trial judge denied the motion. Regarding the
roadblock, the petitioner also acknowledged that after the guilty verdict, trial counsel filed a motion
asking the trial court to reconsider the suppression motion and a separate new trial motion. When
the State inquired if the petitioner was “still okay” with trial counsel’s services at the time of the
motion for new trial, the petitioner responded that he was satisfied.
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On cross-examination, the petitioner gave December 23 as the date when his brother
retained new counsel to file a Rule 11 application. The petitioner said that he had previously
discussed such representation with new counsel. The petitioner denied that new counsel had
previously cautioned him that counsel was going to be out of town during the Christmas break. The
petitioner admitted knowing that a Rule 11 application had to be filed within 60 days from October
31 when the intermediate appellate court affirmed his judgment.
The petitioner’s brother, Brian Anderson, testified that “about middle to late
December” the petitioner called him and wanted him to “follow-up” with new counsel to see if
counsel was still willing to handle the Rule 11 application and how much he would charge for his
services. Brian Anderson testified that he called and spoke with new counsel on December 22 at
which point counsel quoted a fee of $1,000 to prepare and file the Rule 11 application, with an
additional amount of $2,500 due if the supreme court accepted review of the case. Brian Anderson
testified that he told counsel that he would “bring him a check the next day,” which he did. Brian
Anderson said that he handed the check to counsel’s receptionist. Brian Anderson also said it was
his “understanding” that new counsel was aware of the approaching deadline to file the Rule 11
application. Brian Anderson recalled that new counsel “was happy that [Brian Anderson] had
contacted him then because he was close to going on vacation.”
Rule 11 counsel testified and confirmed that he and the petitioner had discussed on
several occasions that the petitioner “probably want[ed]” to hire him to pursue further appellate
review by the Tennessee Supreme Court. Counsel explained,
After I found out that his appeal had been denied sometime I
believe the 30th or 31st of October, I then realized that the deadline
was going to come up during the time which I knew I was going to be
on vacation. . . . I mentioned that to [the petitioner] that his deadline
for filing his Rule 11 application was going to come up while I was
on vacation, so he would need to retain me well ahead of that time.
...
....
. . . I know that I saw him twice in early December and again
reiterated to him that the deadline was fast[ ] approaching and “don’t
wait until the last minute.” I know I specifically said that because I
always know that I’m going to be out that week. . . .
....
. . . And [the petitioner’s brother] came to my office on the
23rd, I had already left for my vacation. . . . And my secretary accepted
the money . . . not knowing what this money was for, whether he was
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paying on his . . . sixth offense DUI or whether it was for something
else . . . . When I got back, I found out that [the petitioner’s brother]
had come in . . . and, therefore, I wrote [the petitioner] a letter saying,
“It’s too late. It was too late when your brother showed up. I was
already gone.”
The petitioner’s trial counsel testified about the services and representation that he
provided. Trial counsel testified that throughout the representation, he spoke to the petitioner “a lot
on the telephone.” Trial counsel remarked, “He was a client [who] would call more than normal.”
Trial counsel recalled questioning Trooper Jennings at the preliminary hearing about the roadblock.
After the case was bound over to the grand jury and to criminal court, trial counsel filed a
suppression motion regarding the roadblock. Trial counsel testified that his standard practice
included advising clients what motions would be filed and why the motions were being filed. The
petitioner’s suppression motion did not include much detail, and trial counsel explained that for
tactical reasons he kept the motion brief so as not to alert the State to the precise defense strategy.
Trial counsel also explained that he subpoenaed the records regarding the roadblock
to have them available at the hearing. Trial counsel was concerned that if the State did not have the
roadblock records at the suppression hearing and was unprepared for the hearing, the trial court
would grant a continuance. Trial counsel wanted the hearing to be held before the State could get
completely prepared, so he subpoenaed the roadblock records to avert that basis for granting a
motion to continue.
Trial counsel agreed that the petitioner was concerned about the inconsistencies
between Trooper Jennings’ preliminary hearing testimony and suppression motion testimony. Trial
counsel did not specifically recall when he advised the petitioner that he should testify at the
suppression hearing, but he may have given that advice during the hearing after certain testimony
from Trooper Jennings. Trial counsel remembered challenging the trooper’s credibility during trial
based, inter alia, on inconsistent versions of when the trooper formed the opinion that the petitioner
was inebriated. Trial counsel renewed his earlier suppression motion and after a jury-out hearing,
the trial court denied the motion. Furthermore, after the trial, counsel filed yet another motion
seeking suppression of the roadblock stop based on the trooper’s trial testimony.
Trial counsel could not specifically recall if the petitioner admitted or denied uttering
the racial slur. Both he and the petitioner were concerned about the admission of the racial slur at
trial. Trial counsel moved in limine to exclude such testimony; that motion was denied after a
hearing before trial commenced.
As for the petitioner’s complaint that he failed to move for judgment of acquittal at
the close of the proof, trial counsel explained that in his opinion “there was more than enough
evidence for the case to go to the jury and that the Judge would certainly have denied the motion.”
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Trial counsel insisted that he did discuss possible appellate issues with the petitioner.
Trial counsel told the petitioner that he “felt the strongest argument was the motion to suppress.”
On the other hand, the petitioner focused on the trooper’s inconsistent testimony and wanted to
accuse the trooper of committing perjury. In trial counsel’s legal estimation, the statements would
not qualify as perjury, and there was absolutely no evidence that the trooper intentionally committed
any such perjury. Trial counsel testified that he flatly refused to pursue a perjury claim on appeal
and that he agreed to provide appellate representation “under the condition that [counsel] would be
in control of what issues [were] presented.” Trial counsel recounted that the petitioner did not want
to accept the legal principle that the trooper’s credibility was an issue for the trier of fact.
The petitioners’ retained appellate counsel filed a brief and did not dispute that a copy
of the brief was sent to the petitioner after it was filed. Appellate counsel also did not dispute that
the petitioner alerted him to problems in the brief regarding citations to the record. Appellate
counsel testified that he proofread the brief, found the problems to which the petitioner had referred,
and immediately filed a corrected brief. Appellate counsel recalled no other problems with the brief
being mentioned by the petitioner.
Appellate counsel saw no legal basis to file a motion asking the Court of Criminal
Appeals to reconsider its opinion; therefore, counsel did not discuss that procedural avenue with the
petitioner.
On cross-examination, counsel agreed that he was concerned with the prejudicial
impact of the racial slur on the jury. Counsel explained that he did not file a written motion in limine
to exclude the slur because after researching the issue, he could locate no case on point, leaving him
with a general relevance/prejudice argument “that could be easily made orally.” Counsel disputed
the idea that a written motion “carries more weight” than an oral motion. He also disputed that the
trial judge would have treated the suppression motion differently had the trooper’s credibility been
impeached.
On the question why counsel subpoenaed the roadblock records for the suppression
hearing, counsel elaborated about his strategy:
I felt that if I went into the hearing without having made anymore
specific allegations and without having subpoenaed any documents,
that you obviously, the State, would not have been prepared at all;
therefore, I felt that Judge Clement would have certainly provided the
State’s continuance. My thinking was that if I subpoenaed the
documents, in other words, kind of gave the chance, the State a
chance to be ready, because I had subpoenaed the documents, my
hope was that Trooper Jennings would come in; still not be prepared
because maybe he didn’t bother to go get the documents I
subpoenaed, maybe he didn’t review them, maybe he’s not the one to
be able to testify from the documents. My hope was that, at that
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point, if I had, since I requested the documents, that if the State still
wasn’t ready, still couldn’t put on the burden of proof that it was a
legal road block, then Judge Clement may have felt that you had been
put enough on notice through the subpoenas, that if you weren’t ready
that he would have granted the motion.
As events unfolded, counsel introduced a number of the roadblock records in connection with cross-
examining Trooper Jennings at the suppression hearing. Counsel used the records in an effort to
impeach the trooper.
At the conclusion of the hearing, the post-conviction court took the matter under
advisement. On October 11, 2005, the court entered a written memorandum opinion denying post-
conviction relief. The post-conviction court included in its opinion a concise and thorough statement
of the testimony at the hearing and demonstrated its legal familiarity with the post-conviction
process, particularly claims alleging ineffective assistance. The post-conviction court credited the
testimony of the petitioner’s trial counsel who also handled the direct appeal. The post-conviction
court gave considerable deference to counsel’s tactics and strategy, recognizing that the petitioner
contacted counsel almost daily and “demanded to have a hands-on involvement in the case to his
detriment.” The court concluded that the representation afforded to the petitioner pretrial, at trial,
and on direct appeal was “diligent and exemplary.”
The post-conviction court found no merit in the petitioner’s claim that he retained
new counsel to prepare and file a Rule 11 application. The court credited counsel’s testimony,
particularly that counsel had discussed with the petitioner the filing deadline and clearly advised the
petitioner that he would not be in town the last two weeks of December when the application had
to be filed. The court found that counsel’s receptionist had accepted the money tendered by the
petitioner’s brother under the belief that the money would be applied to other outstanding legal fees.
The post-conviction court concluded that it was “not satisfied by clear and convincing evidence that
[counsel] was retained,” and the court attributed the failure to file the Rule 11 application to the
petitioner’s “neglect.”
Now on appeal, the petitioner assails the post-conviction court’s findings and
conclusions.
In post-conviction proceedings, the petitioner has the burden of proving by clear and
convincing evidence the claims raised. T.C.A. § 40-30-110(f) (2006). On appeal, the lower court’s
findings of fact are reviewed de novo with a presumption of correctness that may only be overcome
if the evidence preponderates against those findings. Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997).
When a petitioner challenges the effective assistance of counsel, he has the burden
of establishing (1) deficient representation and (2) prejudice resulting from that deficiency.
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984); Baxter v. Rose, 523
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S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs when counsel’s services fall below
the range of competence demanded of attorneys in criminal cases. Bankston v. State, 815 S.W.2d
213, 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable likelihood that, but for deficient
representation, the outcome of the proceedings would have been different. Overton v. State, 874
S.W.2d 6, 11 (Tenn. 1994). On review, there is a strong presumption of satisfactory representation.
Barr v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995). If prejudice is absent, there is no need
to examine allegations of deficient performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
In evaluating counsel’s performance, this court does not examine every allegedly
deficient act or omission in isolation, but rather we view the performance in the context of the case
as a whole. State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The primary concern
of the court should be the fundamental fairness of the proceeding of which the result is being
challenged. Id. Therefore, this court should not second-guess tactical and strategic decisions by
defense counsel. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Instead, this court must
reconstruct the circumstances of counsel’s challenged conduct and evaluate the conduct from
counsel’s perspective at the time. Id.; see also Irick v. State, 973 S.W.2d 643, 652 (Tenn. Crim.
App. 1998).
Measured by these standards, it is readily apparent that the petitioner failed to carry
his burden for post-conviction relief. No doubt exists that the petitioner is displeased with the
services and representation he received pretrial, at trial, post trial, and on direct appeal.
Notwithstanding the nature of the grievances, however, an accused is not entitled to perfect
representation, only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796
(Tenn. Crim. App. 1996). This post-conviction case, in our opinion, however, serves as a classic
example why a reviewing court should not second-guess tactical and strategic decisions by defense
counsel.
Trial counsel’s approach to the suppression issues arising from the roadblock was
professionally reasonable; the petitioner has not shown otherwise. Likewise, nothing appears amiss
about the oral motion in limine to exclude testimony about the racial slur. The petitioner
characterizes trial counsel’s “half-hearted efforts and convenience-based decisions” as
“inexcusable.” The petitioner cannot rely solely on broad personal assertions of what is and is not
professionally reasonable; at the very least, the petitioner needed some independent source to
corroborate his view that the legal services he received fell below the range of competence demanded
of attorneys in criminal cases. From the record before us, we are not inclined to second-guess the
strategic decisions made.
We note, in particular, the petitioner’s continued insistence that Trooper Jennings’
credibility was not sufficiently attacked. We are not inclined, nor is it our responsibility, to scour
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every syllable of Trooper Jennings’ testimony for inconsistencies.2 Furthermore, accusations of
perjury should not be made casually, as trial counsel prudently recognized.
The record clearly supports the post-conviction court’s conclusion that counsel was
not actually retained to file a Rule 11 application, and we agree that the petitioner is the author of
his own misfortune in this regard. The acceptance of money by counsel’s receptionist did not create
some type of binding obligation that a Rule 11 application would be prepared and filed. We see
nothing suspicious about counsel’s receptionist’s belief that the money was to be applied to other
outstanding legal fees owed by the petitioner. This ineffective assistance claim was properly
rejected.
Now having given due consideration to the petitioner’s appeal of the denial of
post-conviction relief, we affirm the post-conviction court’s ruling.
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
2
The record before us does not contain any transcribed motion hearings or trial testimony. Likewise, the initial
brief filed on direct appeal is not part of the record.
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