            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       SEPTEMBER SESSION, 1998       FILED
                                                     October 15, 1998

                                                  Cecil Crowson, Jr.
RONALD BRADFORD WALLER,)                             Appellate C ourt Clerk
                       )         No. 03C01-9702-CR-00054
     Appellant         )
                       )         HAMILTON COUNTY
vs.                    )
                       )         Hon. DOUGLAS A. MEYER, Judge
STATE OF TENNESSEE,    )
                       )         (Post-Conviction)
     Appellee          )



For the Appellant:               For the Appellee:

Ronald B. Waller, Pro Se         John Knox Walkup
S.T.S.R.C.F. #205287             Attorney General and Reporter
Rt #4, Box 600
Pikeville, TN 37367              Ellen H. Pollack
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 425 Fifth Avenue North
                                 2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493


                                 William H. Cox III
                                 District Attorney General

                                 C. Leland Davis
                                 Asst. District Attorney General
                                 Suite 300, Courts Building
                                 Chattanooga, TN 37402




OPINION FILED:

REMANDED



David G. Hayes
Judge
                                                   OPINION



         The appellant, Ronald Bradford Waller, appeals the Hamilton County

Criminal Court’s dismissal of his petition for post-conviction relief. In April 1992, the

appellant was convicted of two counts of first degree murder, one count of

especially aggravated robbery, and one count of theft of property over one thousand

dollars.1 These convictions resulted in the imposition of a sentence of life plus

twenty-three years. This court affirmed the appellant’s convictions and sentences

on direct appeal, finding his allegations without merit.2 State v. Waller, No. 03C01-

9212-CR-00429 (Tenn. Crim. App. at Knoxville, Oct. 6, 1993), perm. to appeal

denied, (Tenn. Feb. 7, 1994). He is currently confined at Southeastern Tennessee

State Regional Correctional Facility in Pikeville.



         After review of the voluminous record before this court, we remand to the trial

court for further proceedings consistent with this opinion.



                                                Background



         On May 10, 1996, the appellant filed a petition for post-conviction relief.

Within the appellant’s ninety-one page pro se petition, he raises ten general grounds

for post-conviction relief; specifically, he enumerates over ninety separate grounds

upon which relief should be granted. Although the trial court subsequently


         1
          The appellant’s convictions arise from the January 9, 1991, murder of Chattanooga
residen t Harold J ewell. The appellant h ad acc epted a r ide with M r. Jewell wh ile hitchhiking on I-
75. The two m en proc eeded to a hotel an d then to M r. Jewell’s B eaver C reek a partm ent.
Allegedly, Mr. Jewell made homosexual advances towards the appellant. A struggle ensued,
resulting in th e appe llant beating M r. Jewell an d virtually sever ing Jewe ll’s neck w ith a bread knife.
Before leaving the apartment, the appellant gathered some money, prescription medication, and
som e jew elry of t he vic tim’s . He th en lef t the a partm ent a nd dr ove to his m othe r’s re side nce in
Port Ritch ie, Florida in the victim’s C hevrolet Im pala. See State v. Waller, No. 03C01-9212-CR-
00429 (Tenn . Crim. A pp. at Kno xville, Oct. 6, 1 993), perm. to appeal denied, (Tenn. Feb. 7,
1994).

         2
          On direct appeal, the appellant argued that the evidence was insufficient to support the
verdicts; that he was prejudiced by the delayed admission of alleged homosexual conduct on the
part of the deceased; that his convictions for first degree murder and especially aggravated
robbery violate double jeopardy; and that consecutive sentencing was not prope r.

                                                      2
appointed counsel, the case proceeded on the pro se petition without amendment.

An evidentiary hearing was held on the petition on November 13, 1996, and January

27, 1997. On March 17, 1997, the trial court denied the appellant post-conviction

relief. Although no specific findings of fact were recited by the trial court, the trial

court’s order dismissing the petition provides in its entirety:

         1. It is not double jeopardy for a defendant to be found guilty of
         premeditated murder and felony murder.

         2. There was no proof of improper grand jury proceedings, denial of a
         speedy trial, prosecutorial misconduct, abuse of discretion/lack of
         control over proceedings, miscarriage of justice, and judicial
         conspiracy.

         3. The issue of reasonable doubt/insufficient evidence was
         predetermined by the Court of Criminal Appeals on direct appeal.

         4. The proof shows that petitioner received effective assistance of
         counsel from Hank Hill. But, assuming for the sake of discussion, that
         he did not, there is no showing of any reasonable probability that the
         result would have been different.

         5. The effect of other errors, even considered cumulatively, are
         harmless.


         The appellant filed a timely notice of appeal of the trial court’s ruling. After

the appellant’s brief was filed on January 30, 1998, but prior to the case being

docketed for appellate review, post-conviction counsel was permitted to withdraw by

this court due to a conflict created by her acceptance of a position with the public

defender’s office, who had represented the appellant at trial. See Waller v. State,

No. 03C01-9702-CR-00054 (Tenn. Crim. App. at Knoxville, Feb. 20, 1998). The

State filed its response to the appellant’s brief on April 17, 1998. By order dated

June 16, 1998, this court ordered that the transcript of the appellant’s trial be

consolidated with the present record for purposes of this appeal. See Waller v.

State, No. 03C01-9702-CR-00054 (Tenn. Crim. App. at Knoxville, Jun. 16, 1998).

On June 22, 1998, this court ordered that the appellant’s pro se brief be filed as a

supplement to the brief submitted by counsel. 3 See Waller v. State, No. 03C01-



         3
             The appellant’s pro se brief is fifty-one pages in length. Counsel’s brief is thirty-nine
pages.

                                                      3
9702-CR-000545 (Tenn. Crim. App. at Knoxville, Jun. 22, 1998).



       The collective issues raised by the appellant in the two briefs allege

constitutional error requiring reversal based upon: (1) fatal variance between

indictment and proof; (2) various claims of double jeopardy; (3) numerous claims of

prosecutorial misconduct; (4) various allegations of the trial court’s failure to

maintain control over the court room; (5) approximately thirty-two grounds alleging

ineffective assistance of counsel; (6) the cumulative error of all due process

violations; (7) denial of equal protection of the law; (8) unconstitutional destruction of

grand jury records; and (9) an unconstitutional reasonable doubt jury instruction.




                                          Analysis



       Without reaching the merits of the appellant’s petition, we find it necessary to

remand this cause to the trial court as the posture of this case, the lack of adequate

findings of fact and conclusions of law by the trial court, and the State’s failure to

respond to the supplemental brief prevent us from completing any kind of

meaningful review.



       First, the trial court failed to enter any discernible findings of fact and

conclusions of law as required by Tenn. Code Ann. § 40-30-211 (1996 Supp.). In

particular, the court’s findings are merely conclusions without any factual support,

the court failed to address all issues raised by the appellant, and the court’s order

suggests the presence of errors in the record without specifically naming them. See

supra Background. Tenn. Code Ann. § 40-30-211 provides that “[u]pon disposition

of every petition, the court shall enter a final order, and . . . shall set forth in the

order . . . all grounds presented, and shall state the findings of fact and conclusions

of law with regard to each such ground.” (Emphasis added). The duty to enter


                                            4
findings of fact and conclusions of law as to each ground alleged is mandatory as

the appellate courts may only review the findings of the trial court. See Brown v.

State, 445 S.W.2d 669, 671 (1969). Not only do the trial court’s findings facilitate

appellate review, but, in many cases, are necessary for such review. See Tate v.

State, No. 02C01-9108-CR-00170 (Tenn. Crim. App. at Jackson, May 20, 1992),

perm. to appeal denied, (Tenn. Sept. 14, 1992).



       In the absence of oral findings, the failure of the trial court to include its

findings of facts in its order dismissing the petition requires reversal of the order.

Brown, 445 S.W.2d at 671; State v. Higgins, 729 S.W.2d 288, 290-291 (Tenn. Crim.

App. 1987). Moreover, where questions of law are presented negating the need for

the finding of fact, the trial court must still show all grounds presented and the

conclusions with regard to each of them. Little v. State, 469 S.W.2d 537, 538

(Tenn. Crim. App. ), perm. to appeal denied, (Tenn. 1971). In the present case, the

trial court failed to enter any findings of fact as they relate to the appellant’s various

claims for relief. See supra Background. Additionally, the trial court failed to enter

conclusions of law as to all grounds presented. Id. Where the trial court fails to

make “a clear and detailed finding of fact,” either orally or on the record, the

appellate court is “at a complete loss to know the basis of the trial judge’s decision

and judgment; assignments of error [now issues] and appellate review are seriously

frustrated if not completely thwarted by lack of a definitive finding of fact by the trial

judge.” Brooks v. State, No. 03C01-9507-CR-00204 (Tenn. Crim. App. at Knoxville,

Oct. 9, 1996) (citing Brown, 445 S.W.2d at 671).



       To further frustrate our review of the proceedings before us, we acknowledge

the disarrayed presentation of issues created by the supplementation of the

appellant’s pro se brief to the record. The two briefs cannot be reconciled. The pro

se brief not only expands the grounds alleged in counsel’s brief but also provides

duplicitous and often confusing argument when compared to counsel’s brief. As


                                           5
illustration, the pro se brief alleges two grounds not alleged in counsel’s brief,

neglects two grounds alleged in counsel’s brief, and, specifically, to the claim of

ineffective assistance of counsel, raises five additional grounds not alleged in

counsel’s brief. We note that the better procedure, facilitating appellate review,

would be to submit only one merged brief addressing all issues.



       For these reasons, this cause is remanded solely for the purpose of

permitting the trial court to enter its findings of facts and conclusions of law as to

each ground alleged in the appellant’s petition. No further filings or supplemental

pleadings by either party shall be permitted at the post-conviction level. Once the

trial court enters its order, the appellant may be appointed counsel for purposes of

appeal, if he so desires. Irrespective of his position regarding counsel, only one

brief to this court will be permitted. The briefs previously filed by the parties in this

appeal will not be considered.



        Accordingly, the judgment of the trial court is reversed and remanded in

order to permit the trial court to revisit the grounds raised by the appellant in his

original petition, and, thereafter, enter findings of fact and conclusions of law as

required by the Post-Conviction Act. Pursuant to Tenn. R. App. P. 29(a), once the

record has been filed with the clerk of this court, the appellant shall have thirty days

in which to file his appellate brief.




                                        ____________________________________
                                        DAVID G. HAYES, Judge




                                            6
CONCUR:



___________________________________
JOHN H. PEAY, Judge



___________________________________
JOSEPH M. TIPTON, Judge




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