        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                         Assigned on Briefs February 2, 2010

                 RONALD DOTSON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                   No. 99-12264 - 65 John T. Fowlkes, Jr., Judge


                No. W2009-01100-CCA-R3-PC - Filed May 13, 2010


The petitioner, Ronald Dotson, appeals the denial of post-conviction relief by the Shelby
County Criminal Court. The petitioner was convicted of two counts of aggravated robbery,
a Class B felony. As a repeat violent offender, the petitioner received consecutive sentences
of life without parole. These sentences were ordered to be served consecutively to another
unrelated set of aggravated robberies for which the petitioner was sentenced to life without
parole. In this appeal, the petitioner claims that his due process rights were violated by the
trial court’s failure to grant a continuance and failure to grant a mistrial. Upon review, we
affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which JERRY L. S MITH and
J. C. M CLIN, JJ., joined.

Brett B. Stein, Memphis, Tennessee, for the Petitioner-Appellant, Ronald Dotson.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Rachel Newton, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

       Background. The facts of the underlying convictions, as outlined by this court in the
petitioner’s direct appeal, are described below:

            Around noon on June 25, 1998, the Appellant entered Connie’s Pub in
       Memphis and, while displaying a pistol, ordered the bartender, Angela
       Massey, to open the cash register and give him all the money. After Ms.
       Massey complied, the Appellant approached a patron in the pub, Carl Reich,
       and ordered Reich to give him his wallet. Reich complied and handed his
       wallet, which contained approximately $300.00, to the Appellant. The
       Appellant then fled the bar. In September of 1998, the Appellant was arrested
       in Wynne, Arkansas and gave a statement to investigators admitting his
       involvement in the robbery at Connie’s Pub. He stated that he robbed both the
       bartender and the customer by using a BB gun that looked like a .357 revolver.

              On October 28, 1999, a Shelby County grand jury returned two
       indictments against the Appellant for the aggravated robberies of Angela
       Massey and Carl Reich. At trial, the State introduced the Appellant’s
       statement admitting that he used a BB gun to rob both victims. The robberies
       were also captured on video by a surveillance camera in the bar, and the video
       tape was shown to the jury. At trial, both victims identified the Appellant as
       the person who robbed them. The jury returned guilty verdicts on both charges
       of aggravated robbery. Based upon the Appellant’s classification as a repeat
       violent offender, he received two consecutive life sentences without parole.

State v. Ronald Dotson, No. 99-12264-65, slip op. at 1-2 (Tenn. Crim. App., at Jackson, June
7, 2004) perm. to appeal denied, (Tenn. 2004).

       The petitioner challenged his convictions on direct appeal and claimed the evidence
was insufficient to support his convictions. Id. at 4. This court held that the evidence was
sufficient, stating:

       The State’s proof consisted of testimony from the two victims who identified
       the Appellant as the person who took money from them, while displaying what
       they believed to be a gun. Moreover, the Appellant’s admission to police that
       he had committed these robberies with a BB gun which looked like a .357
       revolver was introduced before the jury. We conclude that this evidence is
       more than sufficient to support the convictions.

Id. The petitioner also challenged the trial court’s denial of two motions to continue. Id. at
2. He claimed “he should have been granted a continuance to ‘reassess [defense] strategy’
when the trial court ruled that two recent convictions for aggravated robbery could be used
for impeachment purposes.” Id. This court concluded that the petitioner was not prejudiced
by the trial court’s refusal to grant a continuance. Because trial counsel represented the
petitioner in post-conviction matters regarding these convictions and “was, or should have
been, prepared for a defense that included [these] prior convictions[,]” the petitioner was not
entitled to relief. Finally, the petitioner argued “the trial court erred in not granting his
motion for continuance when he learned on the second day of trial that the victim Reich had
identified the Appellant from a photo lineup.” Id. at 3. Here, this court noted that the trial

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denied the motion to continue because “[t]he State agreed not to use the photo identification
evidence” and that the defendant failed to show prejudice. Id. at 3-4. Accordingly, the
judgment of the trial court was affirmed.

       On October 19, 2005, the petitioner filed a pro se petition for post-conviction relief.
The petitioner raised several claims regarding his sentencing as a repeat violent offender. 1
An amended petition was filed by appointed counsel on May 23, 2008. The amended
petition set forth the following claims:

        a. The Petitioner was denied effective assistance of counsel by the Trial
        Court’s ruling by refusing to grant a continuance in order for the petitioner to
        challenge the identification procedure under the totality of the circumstances
        as set forth in State v. Philpott, 882 S.W.2d 394 (Tenn. Cr. App. 1994)[.]

        b. That under the totality of the circumstances, the identification of the
        petitioner was so unreliable and untrustworthy, that the petitioner’s due
        process rights were violated.

        c. Your Petitioner would further show that he was prejudiced by the faulty
        identification procedure as reflected by the questions that were submitted to
        the trial court by the jury during it’s deliberation. . . .

        Post-Conviction Hearing. Aside from the issues pertaining to his alleged improper
juvenile convictions, the petitioner testified that his main concern was that the trial court did
not grant trial counsel a continuance to prepare his defense. The petitioner said he met with
trial counsel “a matter of days” before trial, and they discussed the facts of the case. The
petitioner did not recall if they met again before trial. According to the petitioner, trial
counsel said he needed more time to prepare for trial. The petitioner acknowledged that trial
counsel moved for a continuance both before and during trial. He also recalled that trial
counsel challenged the denial of continuances on appeal. The petitioner said trial counsel
questioned the State’s witnesses about the issue of identification, and he had moved to
suppress identification evidence.



        1
        Although not raised in this appeal, the petitioner specifically argued in his pro se petition and at the
post-conviction hearing that several of his Illinois convictions which serve as the basis of his enhanced
punishment occurred while he was a juvenile. He claimed that these juvenile convictions were obtained
without a transfer hearing. In denying these claims, the post-conviction court determined that the
requirements of section 40-35-120 (e) (3) were met; however, even if the alleged juvenile convictions were
improper, numerous other prior violent felony convictions existed to qualify the petitioner under section 40-
35-120 (a) (1)-(2), as a repeat offender subject to a life sentence.

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       Trial counsel was originally appointed to represent the petitioner in his post-
conviction proceedings pertaining to another unrelated set of aggravated robbery convictions
for which Dotson received a sentence of life without parole. Trial counsel testified that he
was later appointed to represent and prepare the petitioner for trial regarding the instant
aggravated robbery charges. He described the circumstances of the appointment as “like
being thrown on a galloping horse . . . .” Trial counsel requested a continuance multiple
times to prepare for trial, but his motions were denied. He testified that he was appointed to
represent the petitioner six weeks before trial, and he met with the petitioner three times.

        Trial counsel testified that defense preparation was difficult because the petitioner did
not provide a clear account of what happened during the robbery. Trial counsel said his
defense strategy was to attack the issue of identification. During discovery, he requested
evidence from the State regarding photo identification of the petitioner. The State initially
indicated that it had disclosed all of its identification evidence. Trial counsel stated that on
the day of trial, he was informed of new evidence regarding photo identification of the
petitioner. Consequently, trial counsel moved for a continuance, which was denied. Trial
counsel said he pursued this issue on appeal, but the trial court’s ruling was affirmed. During
trial, he also moved to suppress a statement from one of the witnesses who identified the
petitioner. This issue was addressed in a hearing. Trial counsel said his motion was denied,
and the trial court’s ruling was affirmed on appeal.

       Trial counsel stated that during voir dire, he asked the jurors if anyone knew the
petitioner. One of the jurors responded that he put the petitioner on a work release program
while employed at the Penal Farm. Trial counsel said he moved for a mistrial, which was
denied. He also testified that one of the jurors questioned whether there was any evidence
of fingerprints at the scene of the crime.

        By written order, the post-conviction court denied the petitioner relief. It determined
that the three claims raised in the amended petition were already addressed on direct appeal.
Citing Miller v. State, 54 S.W.3d 743, 747-48 (Tenn. 2001), it found that the petitioner was
prevented from challenging these issues in post-conviction proceedings. The post-conviction
court also found that the claims raised in the pro se petition were without merit. The
petitioner filed a timely notice of appeal.

                                         ANALYSIS

        The petitioner claims that the post-conviction court erred in denying relief. He argues
that his due process rights were violated by the trial court’s failure to grant a continuance,
which would have allowed trial counsel to prepare an adequate defense and effectively
challenge the issue of identification. The petitioner also asserts that his due process rights

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were violated by the trial court’s failure to grant a mistrial. He claims a mistrial should have
been granted because a juror admitted to knowing the petitioner when he worked at a penal
farm. In response, the State argues that the post-conviction court did not err in denying
relief.

      Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T. C. A.
§ 40-30-103 (2005). The Tennessee Supreme Court has held:

        A post-conviction court’s findings of fact are conclusive on appeal unless the
        evidence preponderates otherwise. When reviewing factual issues, the
        appellate court will not re-weigh or re-evaluate the evidence; moreover, factual
        questions involving the credibility of witnesses or the weight of their testimony
        are matters for the trial court to resolve. The appellate court’s review of a
        legal issue, or of a mixed question of law or fact such as a claim of ineffective
        assistance of counsel, is de novo with no presumption of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f)
(2003); Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901, n.3 (Tenn. 1992)).

       Here, the petitioner raised three arguments in his amended petition. He claimed his
due process rights were violated because: (1) he received ineffective assistance of counsel
based on the trial court’s refusal to grant a continuance; (2) the identification of the petitioner
was unreliable and untrustworthy; and (3) he was “prejudiced by the faulty identification
procedure.” 2

        Neither the amended petition nor the pro se petition addressed the issue of the trial
court’s refusal to grant a mistrial based on the juror’s knowledge of the petitioner.
Tennessee Code Annotated section 40-30-106(d) states that a petition for post-conviction
relief “must contain a clear and specific statement of all grounds upon which relief is sought,
including full disclosure of the factual basis of those grounds.” T. C. A. § 40-30-106(d)
(2005). In addition, Tennessee Supreme Court Rule 28, section 5(E)(4) provides that the


        2
        We note that the petitioner’s brief does not include issues (2) and (3); accordingly, they will not be
addressed in this appeal.

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post-conviction petition must contain “specific facts supporting each claim for relief asserted
by [the] petitioner.” The record shows that the petitioner alluded to this issue during the
post-conviction hearing by asking trial counsel a question during his testimony. Apparently,
trial counsel moved for a mistrial based on a juror’s question about the petitioner’s criminal
history during trial. Because the issue was not previously raised in either of his petitions and
not clearly defined at the hearing, the post-conviction court asked for clarity from post-
conviction counsel. Post-conviction counsel explained that he had just become aware of the
issue and believed it to be relevant. The post-conviction court stated that it appeared post-
conviction counsel was “speculating” and advised counsel that he could “file something in
addition . . . .” for the court to review. The record does not show any additional filings
regarding this issue. Moreover, the post-conviction court did not consider this as an issue
presented because it was not included in its written order denying relief. Accordingly, we
conclude the petitioner is not entitled to relief on this issue because he failed to comply with
the rules governing post-conviction relief. See also Walsh v. State, 166 S.W.3d 641, 645
(Tenn. 2005) (“Issues not addressed in the post-conviction court will generally not be
addressed on appeal.”).

       The petitioner’s other claim regarding the continuance request was only indirectly
mentioned in the amended petition within the framework of an ineffective assistance of
counsel claim. We initially note that the petitioner did not set forth the factual basis of this
claim as required under Tennessee Code Annotated section 40-30-106(d). At the post-
conviction hearing, trial counsel testified that he made multiple requests for continuances.
The petition does not, however, identify which of these motions should have been granted;
rather, the petition states that trial counsel should have been granted a continuance to
“challenge the identification procedure.” Regardless of how broadly the petitioner casts his
claim, he failed to explain to the post-conviction court or to this court on appeal how trial
counsel was deficient or the resulting prejudice. At the post-conviction hearing, the
petitioner conceded that trial counsel moved for a continuance, argued for a second
continuance, and raised the denial of the motion to continue as an issue in his direct appeal.


       Furthermore, as reflected in the findings of the post-conviction court, the petitioner
challenged this issue on direct appeal. This court affirmed the trial court’s denial of two
continuance requests, concluding that the petitioner failed to show he was prejudiced. Under
Tennessee Code Annotated section 40-30-106(f), “If the facts alleged, taken as true, fail to
show that the petitioner is entitled to relief or fail to show that the claims for relief have not
been waived or previously determined, the petition shall be dismissed.” (Emphasis added).
The Tennessee Supreme Court has similarly stated that issues raised and resolved in the
petitioner’s direct appeal “cannot be revisited in this post-conviction proceeding.” Miller v.



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State, 54 S.W.3d 743, 747-48 (Tenn. 2001). The issues raised herein, as noted by the State,
amount to no more than an attempt to re-litigate whether the trial court erred in denying his
motions for continuances. Therefore, the petitioner is not entitled to post-conviction relief.

                                      CONCLUSION

       Based on the foregoing, the judgment of the trial court is affirmed.


                                                   ___________________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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