        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 4, 2012

                   NEWT CARTER V. STATE OF TENNESSEE

                  Appeal from the Circuit Court of Madison County
                     No. C-11-282 Roy B. Morgan, Jr., Judge


              No. W2012-00508-CCA-R3-PC - Filed December 14, 2012


Newt Carter (“the Petitioner”) filed for post-conviction relief, challenging his convictions
for aggravated rape and aggravated burglary. As his bases for relief, he alleged several
grounds of ineffective assistance of counsel at trial and that “newly discovered evidence”
existed in the case. After the close of the Petitioner’s proof in an evidentiary hearing, upon
motion by the State, the post-conviction court denied relief, and this appeal followed. On
appeal, the Petitioner asserts that trial counsel (1) failed to account for the Petitioner’s
learning disabilities and (2) failed to call Benjamin Jackson as a witness. Based upon the
record before us, we are compelled to vacate the judgment of the post-conviction court and
remand this action to the Madison County Circuit Court for conclusion of the evidentiary
hearing and for the post-conviction court to make factual findings and conclusions at the
close of all the proof based on all of the evidence presented at the post-conviction hearing.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of Circuit Court
                              Vacated and Remanded

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which A LAN E. G LENN and
R OBERT W. W EDEMEYER, JJ., joined.

Joseph T. Howell, Jackson, Tennessee, for the appellant, Newt Carter.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Senior Counsel; James
G. Woodall, District Attorney General; Jody S. Pickens, Assistant District Attorney General;
for the appellee, State of Tennessee.
                                          OPINION

                           Factual and Procedural Background

       A Madison County jury returned guilty verdicts against the Petitioner for aggravated
rape and aggravated burglary. The trial court sentenced the Petitioner as a Range I standard
offender to twenty years for his aggravated rape conviction and five years for his aggravated
burglary conviction, with the sentences to run consecutively. The trial court also ordered that
these sentences run consecutively to his sentence for a prior conviction.

       In the direct appeal, this Court noted that “[t]he [Petitioner] did not file a motion for
new trial nor a notice of appeal. However, the trial court granted a delayed appeal on March
17, 2009. The [Petitioner] filed a notice of appeal on March 18, 2009.” State v. Newt
Carter, No. W2009-00600-CCA-R3-CD, 2010 WL 2349207, at * 6 (Tenn. Crim. App. June
11, 2010), perm. app. denied (Tenn. Nov. 12, 2010). This Court affirmed the Petitioner’s
convictions and sentences on appeal. Id. at *10. The Petitioner subsequently filed the instant
petition for post-conviction relief, alleging ineffective assistance of trial counsel on
numerous grounds and that “newly discovered evidence” existed in the case.

        At the post-conviction hearing, the Petitioner testified that he only met with his
retained trial counsel once outside of court prior to trial. According to the Petitioner, trial
counsel’s discussions with him consisted of her assurance that they “could beat” the charges
under a theory of consensual sex. He requested that trial counsel employ the services of a
DNA expert in order to explain why his DNA was found around the victim’s residence. On
cross-examination, the Petitioner clarified that, although the expert still would find his
semen, he believed the expert also would find his DNA all over the victim’s residence. For
example, he believed that the expert would find his DNA on a toothbrush and other various
items, which would infer the Petitioner’s ongoing consensual sexual relationship with the
victim.

        The Petitioner stated that he graduated from high school but that he had learning
disabilities and attended “resource classes” and Pathways. He testified that he had informed
trial counsel about his learning disabilities prior to going to trial because he felt that he was
incapable to take the stand at trial. However, on cross-examination, the Petitioner
acknowledged that he previously had pleaded guilty to other criminal offenses and that he
had no trouble understanding the process.

       The Petitioner also informed trial counsel that he did not rape the victim because he
was at home with the victim’s daughter, Tiffany Hill, at the time of the rape. He stated that
he and the victim had been arguing on the morning of the rape because he did not want
anyone to know that he was having consensual sex with the victim. However, the Petitioner

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and trial counsel never discussed, and trial counsel never asked, whether anyone could offer
testimony to corroborate the Petitioner’s story. The Petitioner stated that an individual
named Benjamin Jackson knew about the Petitioner’s relationship with the victim but that
the Petitioner did not tell trial counsel about Jackson.

       The Petitioner also asserted that he wished trial counsel would have gone further in
her cross-examination of Hill during the trial. Specifically, he wanted trial counsel to ask
more questions regarding Hill’s testimony that she was intoxicated. The Petitioner believed
that Hill still would have noticed had he gotten up during the night because, at the time, they
had a newborn baby. However, when asked whether the Petitioner would have asked any
questions that trial counsel did not ask, the Petitioner responded, “No, sir.”

        The Petitioner also believed that trial counsel should have cross-examined the victim
further regarding her statements to the detective and police officer concerning her description
of the assailant. He thought that the victim’s descriptions were inconsistent. The Petitioner
also wanted trial counsel to cross-examine Officer Brooks regarding his testimony
concerning a window at the victim’s residence. He believed that Officer Brooks’ testimony
about the existence of a screen on the window was untrue. However, he agreed that Officer
Franklin testified regarding the discrepancy as to the presence of the screen.

       The Petitioner’s last contention was that trial counsel should have filed a motion
pursuant to Tennessee Rule of Evidence 412 so that trial counsel could have questioned the
victim regarding her sexual behavior. However, on cross-examination, the Petitioner agreed
that he testified to these facts in his testimony.

        Benjamin Jackson, the Petitioner’s first cousin, testified that, in 2006, he was aware
that the Petitioner was involved in a relationship with Hill and with her mother, the victim.
He knew about the victim and the Petitioner’s relationship because, on one occasion, he
walked in on the two of them having sexual intercourse. Jackson would have been willing
to testify to these facts at trial, but no one ever asked him about what he knew.

       On cross-examination, Jackson agreed that the Petitioner saw Jackson walk in on the
victim and the Petitioner but stated that the victim did not see him. He also acknowledged
that, when the Petitioner was charged with rape, Jackson did not discuss his knowledge with
the Petitioner until both of them were in a penitentiary together in Whiteville five years later.
He stated that the Petitioner asked him to come forward and testify to this information at the
post-conviction hearing.

       Gwendolyn Cooper, the Petitioner’s mother, testified that the Petitioner was enrolled
in resource classes in high school because he had dyslexia, Attention Deficit Disorder


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(“ADD”), and Attention Deficit-Hyperactivity Disorder (“ADHD”). He received treatment
for these learning disabilities at Pathways.

        Cooper stated that she retained and paid for the Petitioner’s trial counsel. She met
with trial counsel on three occasions in trial counsel’s office along with Hill. Hill told trial
counsel in those discussions that the Petitioner was with her the whole night on the evening
of the alleged rape of the victim. Cooper did not remember telling trial counsel about the
Petitioner’s learning disabilities.

        Hill testified that she has had four children with the Petitioner. She remembered
telling trial counsel that the Petitioner did not leave her house on the night of the alleged
rape. She explained that her testimony changed at trial because she did not want to perjure
herself. According to Hill, she originally lied to trial counsel in order to protect the
Petitioner, but she changed her mind when thinking about her children.

        After Hill testified, the Petitioner rested his proof. The State then stated, “Your
Honor, at this time the State is going to make the motion for directed verdict or motion for
summary judgment – well, motion for directed verdict.” The transcript indicates immediately
following the State’s request that “[t]here were arguments made on behalf of the State and
the Petitioner, and the Court ruled as follows.” No additional statements or arguments of
counsel appear in the transcript prior to the post-conviction court issuing its ruling.

        The post-conviction court concluded that the Petitioner had failed to establish
deficient performance on the part of trial counsel. The court found that, although the
Petitioner had some learning issues, the issues were “nothing that would take away from his
ability to understand and cooperate with counsel.” Additionally, the post-conviction court
found that the Petitioner testified regarding his version of the events and that the trial court
charged the jury regarding his alibi. As to the Petitioner’s arguments regarding cross-
examination, he found that “there has not been anything specific about what could have been
done differently.” Regarding the Rule 412 issue, the court found that the same testimony
came out at trial through the Petitioner regarding his alleged consensual sexual relationship
with the victim. As to the testimony of Jackson, the post-conviction court found that this
evidence did not constitute “newly discovered evidence” because the Petitioner would have
known about the potential testimony. Accordingly, the court denied post-conviction relief.
The Petitioner timely appealed, asserting that trial counsel was ineffective in 1) failing to
adequately account for the Petitioner’s learning disabilities and 2) failing to call Benjamin
Jackson as a witness at trial.




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                                            Analysis

       At the conclusion of the Petitioner’s proof at the post-conviction hearing, the State
requested, “Your Honor, at this time the State is going to make the motion for directed
verdict or motion for summary judgment – well, motion for directed verdict.” The transcript
indicates immediately following the State’s request that “[t]here were arguments made on
behalf of the State and the Petitioner, and the Court ruled as follows.” According to the
record, the post-conviction court then denied the Petitioner post-conviction relief.

        Post-conviction procedure is governed by the Post-Conviction Procedure Act, Tenn.
Code Ann. § 40-30-101, et seq., and Rule 28 of the Rules of the Tennessee Supreme Court.
See Tenn. Sup. Ct. R. 28 § 1 (A) (“These rules supplement the remedies and procedures set
forth in the Post-Conviction Procedure Act . . . .”); Williams v. State, 44 S.W.3d 464, 467
(Tenn. 2001). Rule 28 expressly provides that “[n]either the Tennessee Rules of Civil
Procedure nor the Tennessee Rules of Criminal Procedure apply to post-conviction
proceedings except as specifically provided by these rules.” Tenn. Sup. Ct. R. 28 § 3.

        Pursuant to Rule 28, a post-conviction court may dismiss a petition for post-conviction
relief without a hearing after the initial filing of the petition if the petition:

       (1) is not timely filed;

       (2) is filed while another post-conviction petition or direct appeal regarding the
       same conviction is pending;

       (3) does not contain specific factual allegations;

       (4) does not state the reasons that the claim is not barred by the statute of
       limitations, waived, or previously determined; or

       (5) does not entitle petitioner to relief even if taken as true.

Tenn. Sup. Ct. R. 28 § 6. Additionally, the post-conviction court may dismiss a petition
without a hearing after an amended petition is filed if the amended petition does not state a
colorable claim. Id. § 6(B)(4)(a). Finally, the post-conviction court may dismiss a petition
without a hearing after the State files a response if, at that point, the court determines that the
petition or amended petition does not state a colorable claim. Id. § 6(B)(6).

      Conversely, however, neither Rule 28 nor the Post-Conviction Procedure Act
provides a procedure for summary dismissal during the post-conviction hearing. Section


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7(D) sets forth the procedure when the court does conduct an evidentiary hearing. This
section does not contain a provision setting forth a procedure by which the post-conviction
court may dismiss a petition at the close of the Petitioner’s proof in some summary fashion.

        In this case, the last statement in the transcript is the request of counsel for the State
for a “motion for directed verdict or motion for summary judgment – well, motion for
directed verdict.” The transcript then recites that the post-conviction court heard argument
from both sides and then rendered its decision. Without more, we only can surmise that the
court acted upon the State’s request and summarily dismissed the petition. A close review
of the transcript of the post-conviction court’s findings and of the order subsequently entered
by the post-conviction court does not allow us to conclude otherwise.

        Unfortunately, as previously noted, Rule 28 has no provision for such a procedure,1
and neither the Tennessee Rules of Civil Procedure nor the Tennessee Rules of Criminal
Procedure are applicable to this proceeding. See Tenn. Sup. Ct. R. 28 § 3. Thus, we
conclude that we are compelled to vacate the judgment of the post-conviction court and
remand this action for the conclusion of the evidentiary hearing2 and for the post-conviction
court to make factual findings and conclusions at the close of all the proof based on all of the
evidence presented at the post-conviction hearing.3




        1
          Moreover, even if such a procedure existed, in all likelihood, the post-conviction court, at the very
least, would have to view the evidence in the light most favorable to the Petitioner and could not weigh the
credibility of the witnesses. There is no evidence in the record before us that the post-conviction court
applied any such standards.
        2
            We note that the record indicates that trial counsel was present at the evidentiary hearing.
        3
          This opinion in no way should be interpreted as requiring the State to put on proof in all post-
conviction evidentiary hearings. Although perhaps a risky strategy, the State simply could rest without
putting on proof in such a hearing. At that point, the post-conviction court could rule on the merits. The
limited holding of this case addresses only the situation in which the record appears to indicate that the post-
conviction court resolved the case based on a request by the State for a “motion for directed verdict” at the
close of the Petitioner’s proof.

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                                       Conclusion

      Accordingly, for the foregoing reasons, the judgment of the post-conviction court is
vacated, and the case is remanded for further proceedings consistent with this opinion.




                                         _________________________________
                                         JEFFREY S. BIVINS, JUDGE




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