        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs May 7, 2013

                    LARRY HUNT v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                     No. 00-12639-41   W. Otis Higgs, Jr., Judge


                No. W2012-01682-CCA-R3-PC - Filed August 2, 2013


The Petitioner, Larry Hunt, appeals the Shelby County Criminal Court’s denial of his petition
for post-conviction relief from his convictions of aggravated robbery, aggravated kidnapping,
and aggravated rape and resulting effective sentence of thirty-two years in confinement. On
appeal, the Petitioner contends that he received the ineffective assistance of trial counsel.
However, because the post-conviction court failed to make any findings of fact or
conclusions of law in its denial of the petition, we reverse the judgment of the post-
conviction court and remand the case for further proceedings consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed,
                           and the Case is Remanded.

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
A LAN E. G LENN, JJ., joined.

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Larry Hunt.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Charles Summers, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

      The record reflects that in November 2002, the Petitioner was tried in the Shelby
County Criminal Court for two counts of aggravated robbery, one count of especially
aggravated kidnapping, and one count of aggravated rape. The jury convicted him of
aggravated robbery, robbery as a lesser-included offense of aggravated robbery, and
aggravated kidnapping as a lesser-included offense of especially aggravated kidnapping. The
jury was unable to reach a verdict on the aggravated rape count, so the trial court declared
a mistrial as to that charge. Following a retrial, the jury convicted the Petitioner of
aggravated rape. After a sentencing hearing, the trial court merged the robbery conviction
into the aggravated robbery conviction and sentenced the Petitioner to an effective thirty-
seven-year sentence. On appeal to this court, the Petitioner challenged the sufficiency of the
evidence for the aggravated rape conviction and the imposition of consecutive sentencing.
We affirmed the Petitioner’s conviction but modified his effective sentence to thirty-two
years pursuant to Blakely v. Washington, 542 U.S. 296 (2004). State v. Larry Hunt, No.
W2003-01738-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 777, at *22 (Jackson, Sept. 14,
2004).

        The Petitioner timely filed a petition for post-conviction relief. Relevant to this
appeal, the Petitioner claimed that he received the ineffective assistance of trial counsel. The
post-conviction court appointed counsel, and counsel filed amended petitions, claiming that
the Petitioner received the ineffective assistance of counsel during his second trial because
trial counsel failed to file a pretrial motion to suppress his statement to police, failed to cross-
examine the victim adequately, and allowed the jury to hear evidence about the robbery and
kidnapping.

       At the evidentiary hearing, trial counsel testified that he began practicing law in 1982
and began working for the public defender’s office in 1989. The Petitioner had been accused
of robbing, kidnapping, and raping the victim, a former co-worker. Counsel said that at the
Petitioner’s first trial, the jury convicted him of aggravated robbery and aggravated
kidnapping but “hung up” on the aggravated rape. At the Petitioner’s retrial for aggravated
rape, counsel used “copious notes” he took during the first trial. Counsel also filed a motion
to suppress the Petitioner’s statement to police. Counsel said that he did not think grounds
existed to justify the motion and that he filed the motion at the Petitioner’s “insistence.” The
Petitioner had turned himself in to police voluntarily, was very cooperative with officers,
received Miranda warnings, and signed his statement. Therefore, the Petitioner gave his
statement knowingly, intelligently, and voluntarily. The trial court denied the motion to
suppress.

       Trial counsel testified that at the Petitioner’s second trial, the victim testified on direct
examination about the Petitioner’s robbing and kidnapping her; however, the jury never
heard that the Petitioner was convicted of those offenses. Counsel said he questioned the
victim about the “entire episode,” including the robbery and kidnapping, because “[t]he facts
had already been brought out on direct, so I could not ignore them.” Regarding the
aggravated rape, counsel said that he “tried to hammer away as best [he] could without
inflaming the passions of the jury that [the victim] was either embellishing or was mistaken”

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and that he “did try to make hay with the fact” that she told the police the Petitioner “tried”
to rape her. The victim had claimed that the Petitioner inserted his middle finger into her
vagina. Counsel said that he may have asked the victim only a few questions about the rape
because “you can only ask so many questions about that.” Counsel acknowledged that he did
not have an investigator from the public defender’s office interview the victim. He said that
the victim had been cross-examined at the Petitioner’s preliminary hearing and that he had
never known a rape victim to agree to be interviewed by a defendant’s investigator.
Therefore, counsel used the victim’s preliminary hearing testimony as if it were an interview.
When asked if there were any witnesses to call at the sentencing hearing, trial counsel
answered no.

        On cross-examination, trial counsel testified that whether the Petitioner digitally
penetrated the victim was a “he said/she said type situation.” Counsel said that the victim
knew the Petitioner because she had worked with him prior to the crimes, that the victim was
an excellent witness, and that the State had a very strong case. Although counsel failed to
file the motion to suppress before the second trial, counsel filed the motion during the trial,
and the trial court held a hearing. Counsel said the trial court “made it clear he was denying
it then and he would have denied it six months earlier.”

        The then thirty-four-year-old Petitioner testified that he admitted to robbing and
kidnapping the victim but that he denied raping her. The Petitioner asked counsel to speak
with the victim, but he did not think counsel did so. The Petitioner was tried twice for raping
the victim. After the first trial, counsel never visited the Petitioner. The Petitioner wrote
letters to counsel, but counsel never responded, and counsel and the Petitioner never talked
about trial strategy. The Petitioner said that at his second trial, he stood up during a State
witness’s testimony and “made [an] outburst.” He said he did so because counsel was not
allowing him to participate in his defense and because counsel did not raise some issues
during the suppression hearing that the Petitioner wanted raised. He said that although
counsel thought the motion to suppress was frivolous, he gave counsel the names of
witnesses to call at the hearing. However, counsel never called them to testify. The
Petitioner said counsel’s cross-examination of the victim was “more in-depth” at the first
trial. He said that during the second trial, the jury heard about “all of these horrible things”
and that trial counsel “shirked his responsibility.”

        On cross-examination, the Petitioner acknowledged that the victim was credible and
believable. During the Petitioner’s first trial, counsel questioned the victim about
inconsistencies “to a T and then he [recross]-examined her.” However, during the second
trial, “none of these same things occurred.” The Petitioner said that he had wanted his
statement suppressed at the second trial because a police officer “jacked [him] up” and made
“some promises about this and that.”

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       In a written order, the post-conviction court denied relief. The Petitioner appeals the
ruling of the post-conviction court.

                                            II. Analysis

        On appeal, the Petitioner contends that he received the ineffective assistance of
counsel because trial counsel did not review the transcript from his first trial in preparation
for his second trial, did not file prior to the second trial a motion to suppress his statement
to police, did not cross-examine the victim about the rape and cross-examined her about
irrelevant issues at the second trial, failed to investigate the facts of the case and failed to
interview the victim, and failed to call any witnesses at the sentencing hearing. The State
contends that the case must be remanded to the post-conviction court because the court failed
to make any findings of fact or state any conclusions of law. We agree with the State.

       Initially, we note that the fact section of the Petitioner’s brief fails to comply with
Rule 27(a)(6), Tennessee Rules of Appellate Procedure, which requires that an appellant’s
brief contain “[a] statement of facts, setting forth the facts relevant to the issues presented
for review with appropriate references to the record.” The statement of facts in the
Petitioner’s brief contains no evidence presented at his trials or the post-conviction
evidentiary hearing.

        That said, the post-conviction court’s written order denying the petition for post-
conviction relief fails to state any findings of fact or conclusions of law. Tennessee Code
Annotated section 40-30-111(b) mandates that a court considering a post-conviction petition
enter a final order and in that order or a written memorandum set forth all the grounds
presented, the findings of fact, and the conclusions of law with regard to each ground. A
court’s failure to provide written findings of fact and conclusions of law may be deemed
harmless if the court orally set forth sufficient findings on the record. See State v. Higgins,
729 S.W.2d 288, 290-91 (Tenn. Crim. App. 1987). However, the post-conviction court also
failed to make any findings of fact or conclusions of law orally at the conclusion of the
evidentiary hearing. Thus, we are unable to review the Petitioner’s claim of ineffective
assistance of counsel and must remand the case to the trial court for a new evidentiary
hearing.1




       1
        Ordinarily, we would remand the case to the post-conviction court for a more complete order.
However, the post-conviction court judge, the Honorable W. Otis Higgs, Jr., died on February 15, 2013.
Therefore, a new evidentiary hearing is required.

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                                    III. Conclusion

       Based upon the record and the parties’ briefs, the judgment of the post-conviction
court is reversed, and the case is remanded to the post-conviction court for further
proceedings consistent with this opinion.


                                                 _________________________________
                                                 NORMA McGEE OGLE, JUDGE




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