            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE                FILED
                          NOVEMBER 1998 SESSION
                                                             December 8, 1998

                                                            Cecil W. Crowson
                                                           Appellate Court Clerk

JOE L. UTLEY,                )
                             )      C.C.A. No. 01C01-9709-CR-00428
         Appellant,          )
                             )      Davidson County
v.                           )
                             )      Honorable Seth Norman, Judge
STATE OF TENNESSEE,          )
                             )      (Post-Conviction)
         Appellee.           )




FOR THE APPELLANT:                  FOR THE APPELLEE:

William A. Lane                     John Knox Walkup
3236 Dilton Mankin Road             Attorney General & Reporter
Murfreesboro, TN 37127              425 Fifth Avenue, North
                                    Nashville, TN 37243-0493

                                    Timothy Behan
                                    Assistant Attorney General
                                    425 Fifth Avenue, North
                                    Nashville, TN 37243-0493

                                    Victor S. (Torry) Johnson, III
                                    District Attorney General
                                    222 Second Avenue, North
                                    Suite 500
                                    Nashville, TN 37201-1649

                                    Thomas B. Thurman
                                    Deputy District Attorney General
                                    222 Second Avenue, North
                                    Suite 500
                                    Nashville, TN 37201-1649




OPINION FILED: ________________________________


REMANDED


L. T. LAFFERTY, SENIOR JUDGE


                                 OPINION
       The appellant, Joe L. Utley, appeals as of right from a judgment of the Davidson

County Criminal Court denying his petition for post-conviction relief. The petitioner alleges

that trial and appellate counsel rendered ineffective assistance in several areas. After a

through review of the record, we REMAND to the trial court with instructions to enter a

findings of fact and conclusions of law.


                                     BACKGROUND


       The petitioner was found guilty, by a Davidson County jury, of felony murder and

especially aggravated robbery. The petitioner received a life sentence and a concurrent

twenty-year sentence. This Court affirmed the appellant’s convictions on direct appeal.

State v. Utley, 928 S.W.2d 448 (Tenn. Crim. App. 1995), per. app. denied (Tenn. 1996).



       The petitioner and three others, Derrick Carey, Eric Brown, and Donald Walton,

robbed the Las Palmas Restaurant in Nashville, taking $500. An employee, Raphael

Magna, was shot when he did not answer as to where the safe was located. A co-

defendant yelled “Five-O,” meaning the police were arriving. Officer Dennis Hamm of the

Nashville Police Department arrested the petitioner who was running behind a building two

hundred yards from the restaurant. Because the petitioner fit the description of one of the

suspects, he was taken back to the restaurant where two patrons identified him from his

build and clothing.



       At the time of his arrest, the petitioner informed Officer Hamm he had just gotten off

a bus and was looking for a phone to call his father. However, John Cannon, Metro Transit

Authority, testified no buses ran at that time in the vicinity of Harding and Antioch. The

accomplice, Eric Brown, testified for the state and related how all four men planned to rob

Applebee’s Restaurant. However, due to heavy police presence, the four men selected

Las Palmas instead. The four men had stolen a car to use in the robbery and the petitioner

was to remain in the car as the driver, but Brown saw him in the rear of the restaurant.

Brown fired a shot to get everyone’s attention and when he heard the police were coming,


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both he and the petitioner exited through the back door.



                          POST-CONVICTION PROCEEDINGS



       Upon the petitioner filing a petition for post-conviction relief, the trial court entered

a preliminary order appointing counsel to represent the petitioner’s claims of ineffective

assistance of counsel at the trial and appellate levels. As to trial counsel, the petitioner

raises two issues: (1) trial counsel failed to object to the charge on “reasonable doubt” and

(2) trial counsel failed to obtain a copy of the transcript of the juvenile court transfer

hearing. As to appellate counsel, the petitioner complains appellate counsel (1) failed to

provide a copy of the transcript of the motion to suppress the identification of the defendant

by two state witnesses for appellate review and (2) failed to allege a sufficiency of evidence

claim and the unconstitutionality of Tennessee’s felony murder statute.



       This Court reviews claims of ineffective assistance of counsel under the standards

of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) wherein

the burden is on the petitioner to establish (1) that counsel’s performance was deficient,

and (2) that, but for the deficiency, there is a reasonable probability that the result would

have been different. Also, in Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our

Supreme Court held that attorneys in Tennessee should be held to the general standard

of whether the services rendered were within the range of competence demanded of

attorneys in criminal cases.



       The Post-Conviction Procedure Act requires trial judges to enter findings of fact and

conclusions of law on all issues presented. Tenn. Code Ann. § 40-30-211(b). However,

in the instant case, there are no findings for this Court to review. When a trial court enters

findings of fact and conclusions of law, the trial court’s decisions are conclusive on appeal

unless the evidence preponderates otherwise. Butler v. State, 789 S.W.2d 898, 899

(Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim. App. 1994) per. app.

dismissed (Tenn. 1995).


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       In the instant case, there appears to be some confusion as to whether the petitioner

talked to appellate counsel about what issues were to be presented for appeal. Also,

appellate counsel admitted he may have been deficient in failing to provide a transcript of

the motion to suppress the identification of the petitioner for appellate review.



       This case, therefore, is remanded for the trial court to set forth written findings of

fact and conclusions of law, pursuant to Tenn. Code Ann. § 40-30-211(b) regarding the

petitioner’s claims of ineffective assistance of counsel.




                                          ________________________________________
                                          L. T. LAFFERTY, SENIOR JUDGE


CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE



___________________________________
JOE G. RILEY, JUDGE




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