         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   August 12, 2003 Session

             FRANK ROBERT BIGSBY v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Rutherford County
                        No. F-50657     James K. Clayton, Jr., Judge



                   No. M2002-02260-CCA-R3-PC - Filed December 11, 2003

The Appellant, Frank Robert Bigsby, appeals the Rutherford County Circuit Court’s dismissal of his
petition for post-conviction relief. The sole issue in this appeal is whether Bigsby was denied the
effective assistance of counsel. We are precluded, however, from reviewing this issue based upon
the post-conviction court’s failure to make discernable findings of fact and conclusions of law, as
required by Tennessee Code Annotated § 40-30-111(b) (2003). Accordingly, this case is remanded
for further proceedings consistent with this opinion.

        Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed and Remanded.

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH, J., joined; GARY
R. WADE, P.J., filed a dissenting opinion.

Brad W. Hornsby and Aaron S. Guin, Bullock, Fly, Hornsby, Murfreesboro, Tennessee, for the
Appellant, Frank Robert Bigsby.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; P. Robin
Dixon, Jr., Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and
John W. Price, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

                                       Factual Background

        On November 5, 1998, a Rutherford County jury convicted the Appellant of possession of
cocaine with intent to deliver, a class B felony. The trial judge sentenced the Appellant to twenty-
five years, as a Range III persistent offender. On direct appeal, a panel of this court found that the
evidence was sufficient to sustain the verdict based upon the testimony of the co-defendant, Willie
Martin. State v. Bigsby, 40 S.W.3d 87, 91 (Tenn. Crim. App. 2000), perm. to appeal denied, (Tenn.
2001).
        On May 10, 2001, the Appellant filed a fourteen-page pro se petition for post-conviction
relief. After the appointment of counsel, an amended petition was filed on July 16, 2001. The
amended petition alleges that trial counsel rendered ineffective assistance in sixteen ways. After
conducting an evidentiary hearing, the post-conviction court dismissed the petition. The court’s
order recites, in its entirety:

       The court finds that the Defendant was properly represented and that [trial counsel]
       did a good job. This was the first criminal trial that [trial counsel] had and she did
       do a good job. Every attorney has to start somewhere. The law does not require
       attorneys to be perfect.

        On appeal, the Appellant challenges this ruling, arguing that he received ineffective
assistance, in the following ways: (1) Trial counsel failed to object to the co-defendant’s testimony
as being non-responsive to the prosecutor’s question. The prosecutor asked, “Why did you come
to Murfreesboro?” Martin answered, “We came to sell drugs.” The Appellant argues this non-
responsive answer was prejudicial as it placed the Appellant at the scene of the crime with intent.
(2) Trial counsel’s failure to object to the suggestion that the Appellant committed statutory rape
prejudiced the Appellant because it implied that the Appellant was morally wrong and that he had
committed a separate crime. (3) Trial counsel failed to inform the Appellant of the possibility that,
if convicted, he might serve twenty-five years as a persistent offender. This was prejudicial because
it took away his ability to make an informed decision as to whether to accept the plea offer of eight
years, with service of only six months. (4) Trial counsel failed to object to the admission into
evidence of the “evidence seizure” log, which could have misled the jury into concluding that the
Appellant’s signature on the log was an admission that he was in possession of the illegal substance.
(5) Trial counsel was ineffective for failing to investigate the co-defendant’s lengthy criminal record
and use his thirty-six prior convictions to impeach his credibility. (6) Trial counsel failed to
interview the co-defendant until the day of trial and failed to obtain a copy of Martin’s guilty plea,
which implicated the Appellant in the offense.

                                            ANALYSIS

        To demonstrate ineffective assistance of counsel, the Appellant must show (1) deficient
performance and (2) prejudice resulting from the deficiency. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984). In this type of proceeding, “a trial court's findings of fact
underlying a claim of ineffective assistance of counsel are reviewed on appeal under a de novo
standard, accompanied with a presumption that those findings are correct unless the preponderance
of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R.
App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)).

       When determining the merits of a post-conviction petition, the Post-Conviction Procedure
Act requires the post-conviction court to make written findings of fact and conclusions of law.
Tennessee Code Annotated § 40-30-111(b) (2003) mandates:



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          Upon the final disposition of every petition, the court shall enter a final order, and
          except where proceedings for delayed appeal are allowed, shall set forth in the order
          or a written memorandum of the case all grounds presented, and shall state the
          findings of fact and conclusions of law with regard to each such ground.

The use of the word “shall” clearly indicates the Tennessee General Assembly intended that the duty
of the post-conviction court to make findings of fact is mandatory. Sykes v. State, 477 S.W.2d 254,
260 (Tenn. Crim. App. 1971); Brown v. State, 445 S.W.2d 669, 671 (Tenn. Crim. App. 1969). Not
only do the post-conviction court's findings facilitate appellate review but, in many cases, are
necessary for such review. George 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 post-conviction court to include its findings of facts in its order dismissing
the petition requires reversal of the order. State v. Higgins, 729 S.W.2d 288, 290-91 (Tenn. Crim.
App. 1987). Moreover, where questions of law are presented, negating the need for the finding of
fact, the post-conviction 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. 1971). Where the post-
conviction court fails to make “a clear and detailed finding of fact,” either orally1 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.” David Brooks v. State, No.
03C01-9507-CR-00204 (Tenn. Crim. App. at Knoxville, Oct. 9, 1996) (citing Brown, 445 S.W.2d
at 671)).

       In the case before us, the post-conviction court failed to make discernable findings of
disputed facts relating to the Appellant’s claims of ineffective assistance of counsel. The record is


          1
          The record reflects that, while the post-conviction court did make an oral pronouncement from the bench on
July 24, 2002, this pronouncement was inadequate. The court’s comments were essentially the same as exp ressed in its
written order:

                   At any rate, I feel that under the circumstances, that Mr. Bigsby was properly represented.
          And, again, I d on’t think that the State is required to give a perfect representation. If so, we’d never
          be able to get a case tried with appointed counsel. And I do think that [trial counsel] was certainly
          com peten t as far as the average attorney is co ncerned. And I think she d id a go od job.

                    I’m going to overrule his . . . motio n.

Defense counsel then re quested the post-conviction co urt to make specific findings o n the rec ord. In attempting to
address th e issu e o f im peachmen t o f co-d efendant M artin, the post -c onvic tion sta te d, “W e ll, like I sa id, M r. M artin
testified favorably on some of the things as well as unfavorably on some on the things. And it kind of strikes me as being
strategy as much as anything else.” When pronouncing this finding, the court did not comment on whether trial counsel
adequately investigated Martin’s criminal record or whether she questioned Martin to any degree about his prior
convictions at trial. Rather, the co urt simp ly stated, “I’ll let the transcript speak for itself. There again, I think that we’re
talking about strategy, and that would be my ruling.” However, during the post-conviction hearing, the court stated, “I
don ’t want to read the who le [transc ript.]” T hese o ral findings are insufficient to effectuate any meaningful review of
the Ap pellant’s ineffective a ssistance claim o n this or any other ground.

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devoid of several findings critical to our review. These findings include, but are not limited to: (1)
whether the co-defendant’s answer was non-responsive; (2) whether there was an improper
suggestion at trial that the Appellant committed statutory rape; (3) whether the Appellant received
adequate plea bargaining advice; (4) whether the Appellant’s signature on the “evidence seizure” log,
which was admitted into evidence without objection, indicated to the jury that he was in possession
of the cocaine; (5) whether trial counsel adequately investigated co-defendant Martin’s criminal
record and used that record to impeach his credibility; (6) whether trial counsel timely interviewed
the co-defendant and obtained a copy of his guilty plea; and (7) whether the Appellant suffered
prejudice as a result of any alleged error. Without sufficient factual findings, we have no way of
addressing the merits of the Appellant’s claim. Accordingly, we remand this case for entry of written
findings of fact and conclusions of law on all issues presented, as required by Tennessee Code
Annotated § 40-30-111(b).




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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