         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE          FILED
                        MARCH 1998 SESSION
                                                      March 25, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
CLINTON MASON,                     )
                                   )      NO. 01C01-9705-CR-00197
      Appellant,                   )
                                   )      DAVIDSON COUNTY
VS.                                )
                                   )      HON. J. RANDALL WYATT, JR.,
STATE OF TENNESSEE,                )      JUDGE
                                   )
      Appellee.                    )      (Post-Conviction)



FOR THE APPELLANT:                        FOR THE APPELLEE:

THOMAS A. LONGABERGER                     JOHN KNOX WALKUP
300 James Robertson Parkway               Attorney General and Reporter
3rd Floor
Nashville, TN 37201                       ELIZABETH B. MARNEY
                                          Assistant Attorney General
                                          Cordell Hull Building, 2nd Floor
                                          425 Fifth Avenue North
                                          Nashville, TN 37243-0493

                                          VICTOR S. JOHNSON III
                                          District Attorney General

                                          KATRIN MILLER
                                          Assistant District Attorney General
                                          Washington Square, Suite 500
                                          222 Second Avenue North
                                          Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE




                                OPINION
       The petitioner, Clinton Mason, appeals the trial court’s dismissal of his

petition for post-conviction relief. The issue presented on appeal is whether the

record is sufficient for this Court to make a determination of effective assistance

of appellate counsel. The judgment of the trial court is affirmed.



                                            I.



       The petitioner was convicted of two (2) counts of especially aggravated

kidnapping, one (1) count of especially aggravated robbery, and one (1) count of

aggravated robbery. He received an effective sentence of thirty-five (35) years.

On direct appeal, this Court reduced the sentence to thirty (30) years. See State

v. Shonie Wardell Crisp and Clinton Lamont Mason, C.C.A. No. 01C01-9205-

CR-00177, Davidson County (Tenn. Crim. App. filed January 6, 1994, at

Nashville). Subsequently, this Court denied a petition to rehear, and the

Tennessee Supreme Court denied permission to appeal.

       The petitioner then filed a petition for post-conviction relief alleging

ineffective assistance of counsel at both the trial and on appeal. Counsel was

appointed and a hearing was held. The trial court made extensive findings of

fact regarding counsel’s representation at trial and found counsel’s performance

to be within the acceptable range of competence. However, the trial court held

that the inquiry into ineffective assistance of appellate counsel was to be

“conducted by the panel of original review,” leaving that determination to this

Court. The trial court made no findings as to appellate counsel’s effectiveness.

       The defendant appeals the trial court’s ruling regarding appellate counsel.

He contends the trial court should have made findings to aid this Court in its

determination, and because the trial court failed to make required findings, this

Court is without jurisdiction to address the issue. He urges this Court to remand

the case to the trial court for specific findings.




                                            2
                                          II.



       The trial court found that a claim of ineffective assistance of appellate

counsel “is to be conducted by the [appellate] panel of original review.”

Therefore, it did not make findings as to the effectiveness of petitioner’s

appellate counsel. The trial court cited as authority for its decision, State v.

Clark, 774 S.W.2d 634 (Tenn. Crim. App. 1989). However, the statute referred

to by this Court in Clark had been amended at the time of the filing of the instant

petition. Tenn. Code Ann. § 40-30-103 (b)(1)(Supp. 1988), amended by 1993

Tenn. Pub. Act 136, § 2. The new statute provides that “a judge other than the

original hearing judge” may decide competency of either trial or appellate

counsel. Tenn. Code Ann. § 40-30-205 (b)(Supp. 1996). It is the trial court’s

responsibility to make findings as to appellate counsel’s effectiveness. Cooper v.

State, 849 S.W.2d 744, 746 (Tenn. 1993). The trial court committed error in not

making findings as to the performance of petitioner’s counsel on appeal.



                                         III.



       The petitioner did not introduce evidence at his post-conviction hearing

regarding effective assistance of appellate counsel. The state elicited from

appellate counsel the only evidence presented at the hearing regarding his

performance. Counsel testified that on appeal he was successful in getting a

five (5) year reduction in the petitioner’s sentence. Contrary to petitioner’s

allegation in his written petition, counsel testified that the appellate record was

properly prepared. Counsel also testified that after the Tennessee Supreme

Court denied permission to appeal, he informed the petitioner of his possible

avenues of redress. These statements were the extent of testimony regarding

effective assistance of appellate counsel.




                                          3
                                         IV.



       The petitioner failed to introduce any proof at his post-conviction hearing

regarding ineffective assistance of appellate counsel. W e find, therefore, even if

the trial court had made findings of fact, it could not have found the petitioner

met his burden of proving ineffective assistance of appellate counsel by clear

and convincing evidence. See Tenn. Code Ann. § 40-30-210 (f). In considering

the entire record in this cause, we are satisfied that the error committed by the

trial court was harmless beyond a reasonable doubt and find no reason to

remand for further findings. Tenn. R. App. P. 36 (b).




       The judgment of the trial court is affirmed.




                                                 _________________________
                                                 JOE G. RILEY, JUDGE




CONCUR:




_________________________
JOSEPH M. TIPTON, JUDGE




_________________________
DAVID H. WELLES, JUDGE




                                          4
