       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                             FILED
                          AT KNOXVILLE                    September 7, 1999

                                                          Cecil Crowson, Jr.
                      JULY SESSION, 1999                  Appellate C ourt
                                                              Clerk



ARZOLIA CHARLES        )      C.C.A. NO. 03C01-9808-CR-00288
GOINES,                )
                       )
    Appe llant,        )
                       )      KNOX COUNTY
VS.                    )
                       )      HON. RAY L. JENKINS
STATE OF TENNESSEE and )      JUDGE
AUBREY L. DAVIS,       )
                       )
    Appellees.         )      (Post-C onviction/D isbarm ent)


            ON APPEAL FROM THE JUDGMENT OF THE
              CRIMINAL COURT OF KNOX COUNTY


FOR THE APPELLANT:            FOR THE APPELLEE:

ARZOLIA CHARLES GOINES        PAUL G. SUMMERS
Pro Se                        Attorney General and Reporter
N.E.C.X. Box 5000
Mountain City, TN 37683       ERIK W. DAAB
                              Assistant Attorney General
                              425 Fifth Avenu e North
                              Nashville, TN 37243

                              RANDALL E. NICHOLS
                              District Attorney General
                              City-County Building
                              Knoxville, TN 37902




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                   OPINION

       The Appella nt, Arzolia Charles Goines, is an inmate in the Department of

Correction serving a life sentence as a habitual crimin al. 1 On June 11, 1998, he

filed a “Petition for Disbarment” in the Criminal Court of Knox County, alleging

that his attorney in a previou s post-conviction proceeding should be disbarred

because of ineffective a ssistanc e of counsel during the post-conviction

proceeding. The trial judge treated the petition as one for post-conviction relief

and dismissed it, primarily because it was time-barred. The Appellant appeals,

arguing that the trial court erred by dismissing the “Petition for Disbarm ent.” We

affirm the ju dgme nt of the trial co urt.



       The Appellant’s petition na med A ubrey L. Davis as the respon dent. Mr.

Davis was the Assistant Public Defender who represented the Appellant in his

previous petition for post-conviction relief.       In that previous post-conviction

proceeding, the trial judge denied the Appellant relief and this Court affirmed the

trial court’s decision.2    The petition for disbarmen t alleged num erous errors

committed by the original trial counsel, by the original trial judge, and by M r.

Davis, the post-conviction counsel. Although the petition sought disciplinary

action against the Appellant’s prior attorney, it also asked that the Appellant be

allowed to file a pro se appeal from the previous judgments entered against him.

The trial court dismissed the petition because (1) it was barred by the statute of



       1
          See State v. Arzolia Charles Goines, No. 1208, 1989 WL 34856 (Tenn. Crim. App.,
Knoxville, Apr. 14, 1989).
       2
        See Arzolia Charles Goines v. State, No. 03C01-9710-CR-00456, 1999 WL 162487
(Tenn. Crim. App., Knoxville, Mar. 24, 1999).

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limitations applicable to post-conviction petitions, (2) the Appellant had previously

filed a post-conviction petition attacking the same con viction, and (3) the

allegations of ineffective assistance of counsel had been previously determined.



       The Appellant’s petition recites that it is filed pursuant to Tennessee Code

Annotated § 23-3-202 , which provides that proceedings for disbarment or

discipline of an attorney may be instituted in the circuit, chancery, or criminal

court of the county of th e attorney’s residence or where the “offense” was

committed. In this app eal, the A ppellant a rgues th at the trial judge erred by

treating his petition a s one for post-con viction relief. He arg ues tha t pursua nt to

the referenced statute, his petition should proceed as a petition for disbarment

against his post-conviction attorney, Aubrey L. Davis.



       The statute provides that an attorney may be disbarred or suspended for

(1) committing an infamous crime or misdemeanor involving moral turpitude, (2)

impro perly soliciting employment, (3) wrongfully detaining a client’s money or

property, (4) frau dulen tly obtain ing ad miss ion to th e bar, o r (5) en gagin g in

unprofessional condu ct, dishonesty, malpractice, or other conduct rendering the

attorney unfit to be a member of the bar. Tenn. Code Ann. § 23-3-202.



       Upon the filing of a petition pursuant to the above referenced statute, the

trial judge is directed to issue a citation requiring the attorney to appear and

answer within fifteen days of service o f process . Id. § 23-3-2 02(b). T he statute

contemplates that a “preliminary investigation” should be conducted by

“comm issioners appointed under the supreme court rules or the state or the local

bar association.” Id. § 23-3-202(c). If no such “preliminary investigation” has

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been made, the statute directs the trial judge to ap point a specia l master to

conduct an investig ation. Id. “Such proceedings shall be expedited and given

preceden ce over other b usiness of the c ourt . . . .” Id.



      Initially, we note that in Ex pa rte Ch attano oga B ar Ass ’n, 566 S.W.2d 880

(Tenn. 1978), our supreme c ourt held that as a result of its adoption of the

disciplinary procedure now found in Rule 9 of the Rules of the Supreme Court,

the statutory scheme found in Tennessee Code Annotated § 23-3-202 was no

longer available as an alternative disciplinary procedure for use by any bar

association or bar co mm ittee. Id. at 884. The court specifically stated, howe ver,

“Any individual aggrieved by the act or c ondu ct of an attorne y may avail him self

of the statute, or of course may file his comp laint with the d isciplinary co unsel.”

Id; see also Wayne David son v. R oger D elp, No. 03A01-9711-CV-00518, 1998

W L 548750 (Tenn. Ct. App., Knoxville, Aug. 14 , 1998). But see John Wayne

Slate v. State, No. 03A01-9708-CV-00369, 1998 WL 102072 (Tenn. Ct. Ap p.,

Knoxville, Feb. 27, 1 998).



      W e decline to find that the trial judge erred by treating the Appellant’s

pleading as a petition for post-conviction relief. A trial court is not bound by the

title of a plead ing. Norton v. Everh art, 895 S.W.2d 317, 319 (Tenn. 1995). Wh ile

this petition is clearly styled as a disciplinary action against an attorney, the

petition wa s filed by an inmate in the Tennessee Department of Correction and

alleges as ground s for disciplinary action only ineffective assista nce o f coun sel.

The ramblin g petition a lleges tha t counse l was ineffe ctive for failing to appeal

issues re lating to (1) the statute of limitations, (2) prosecutorial misconduct, (3)

improper cross-examination, (4) his right to a sequestered jury, and (5) the

                                         -4-
exclusion of African -American s from the jury. The petition also alleges that the

trial judge erred by not enforcing the Appellant’s right to a unanimous jury.

Furthermore, it alleges that the original indictment against the Appellant

contained a fatal variance and that an unconstitutional statute was used to render

the Ap pellan t a hab itual crim inal.



       In addition to reque sting appropriate disciplinary action against M r. Davis,

the petition asks that the prior proceedings be stayed so that Appe llant may

appeal pro se after all the “paperwork” is returned to the Appellant. Although

ineffective assistance of counsel could fall within the definition of “unprofessional

condu ct” or “malpractice,” we do not construe the statute to require a trial judge

to proceed with disbarment proceedings based on such allegations of ineffective

assistance of counsel intertwined with allegations of error by the trial cour t, post-

conviction court, a nd ap pellate court. Under these circumstances, we do not

believe the trial court should be required to re-examine the petitioner’s allegations

in a proceeding brought in the form of a disbarment action against one of his

former attorneys. The A ppella nt is free to see k discip linary ac tion ag ainst h is

former a ttorney in ac cordan ce with R ule 9 of the Rules o f the Sup reme C ourt.



       The judgment of the trial court is affirmed.




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                         ____________________________________
                         DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOE G. RILEY, JUDGE




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