                                                                                         08/07/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 20, 2017

           CHRISTOPHER M. HEATH v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Williamson County
                    No. CR099064        Joseph Woodruff, Judge
                     ___________________________________

                           No. M2016-01906-CCA-R3-PC
                       ___________________________________


Petitioner, Christopher M. Heath, was convicted of driving under the influence (“DUI”),
fifth offense, and second offense driving on a cancelled, suspended, or revoked driver’s
license. He received an effective sentence of fifteen months. There was no direct appeal.
Petitioner sought post-conviction relief. After a hearing at which Petitioner did not
appear and did not present any proof, the post-conviction court dismissed the petition.
Petitioner appeals from the denial of post-conviction relief. After a review, we affirm the
judgment of the post-conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT H. MONTGOMERY, JR., JJ., joined.

Matthew J. Crigger, Brentwood, Tennessee, for the appellant, Christopher M. Heath.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Kim Helper, District Attorney General; and Carlin Hess, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                       OPINION

      Petitioner was indicted in May of 2013 by the Williamson County Grand Jury for
DUI; DUI with a blood alcohol content equal to or greater than .08%; DUI with a blood
alcohol content equal to or greater than .20%; driving on a cancelled, suspended, or
revoked driver’s license; DUI fifth offense; and second offense driving on a cancelled,
suspended, or revoked driver’s license. The matter proceeded to trial in August of 2014.
        At trial, Deputy Mark Livengood of the Williamson County Sheriff’s Office
testified that he arrived at the scene of a one-car accident where he found Petitioner at the
scene. Petitioner was standing near the vehicle which was in a ditch with the engine still
running. The vehicle was discovered to be registered to Petitioner, whose license was
revoked. Deputy James Gillam, another officer who responded to the call, confirmed that
there were empty beer cans and an empty liquor bottle inside the vehicle and that
Petitioner smelled heavily of alcohol. Petitioner was described as unsteady on his feet
and told Deputy Livengood two or three times that he was “going to jail.” Petitioner
performed poorly on a finger dexterity test while seated on the hood of Deputy Gillam’s
vehicle and informed the deputy that he had “more” drinks than the officer could
“imagine.”

        After signing the implied consent form, a blood alcohol test revealed Petitioner’s
blood alcohol content was .31. Neither of the officers who responded to the scene
directly asked Petitioner if he was driving the vehicle when it wrecked, and neither
officer saw Petitioner behind the wheel of the vehicle. Deputy James Gillam explained
that there was no one “in the immediate area of the vehicle,” and Petitioner never told the
officers that anyone else was driving.

       The jury convicted Petitioner of the offenses as charged in the indictment. The
parties stipulated that the conviction was Petitioner’s fifth offense for DUI and second
offense for driving on a cancelled, suspended, or revoked driver’s license. The trial court
merged the convictions for DUI, DUI with a blood alcohol content equal to or greater
than .08%, DUI with a blood alcohol content equal to or greater than .20%, and DUI fifth
offense. The trial court also merged the two convictions for driving on a cancelled,
suspended, or revoked driver’s license. As a result, Petitioner received a total sentence of
fifteen months to be served at thirty percent for the DUI conviction and a sentence of
eleven months and twenty-nine days for the driving on a cancelled, suspended, or
revoked driver’s license conviction. The sentences were ordered to be served
concurrently.

        Trial counsel for Petitioner failed to file a notice of appeal. As a result, there was
no direct appeal of the convictions. Petitioner filed several pro se motions, including: (1)
a petition for ineffective assistance of counsel; (2) a motion for a copy of the preliminary
hearing and trial transcripts; (3) a motion for new trial; (4) a motion for a restricted
license; and (5) a motion to reduce his sentence. In the pro se petition for ineffective
assistance of counsel, Petitioner alleged that trial counsel was ineffective for failing to
subpoena a witness, for failing to inform Petitioner of the right to appeal his convictions,
and for failing to defend Petitioner to the best of his ability.

     Post-conviction counsel was appointed and an amended petition was filed. In the
amended petition, the following were raised as allegations of ineffective assistance of
                                             -2-
counsel: (1) trial counsel’s failure to subpoena Kenneth Parker “within a reasonable
amount of time prior to trial”; (2) trial counsel’s failure to discuss the right of appeal with
Petitioner; and (3) trial counsel’s failure to file a motion for new trial.

       Post-conviction counsel introduced a copy of a subpoena issued for witness
Kenneth Parker to appear at the post-conviction hearing and an affidavit from trial
counsel as an attachment to the amended petition for post-conviction relief. In the
affidavit, trial counsel stated that he was appointed to represent Petitioner at trial. Trial
counsel explained that the case was set for trial three different times. The first setting
ended in a mistrial as a result of statements made by Petitioner’s sister in the presence of
prospective jurors. Petitioner failed to appear at the second setting of the trial. On the
third trial date, Petitioner was convicted. Trial counsel explained the following with
regard to Mr. Parker’s appearance:

              Approximately a week prior to the first setting of the trial, Mr.
       Kenneth Earl Parker . . . willingly came to my office and during my
       interview of him, stated that he was the one that was driving the vehicle in
       question and at the time in question as it relates to [Petitioner’s] February
       25, 2013 arrest for DUI.

               Mr. Parker willingly attended the first setting of the trial with the
       intent to testify on behalf of [Petitioner]. During a pretrial hearing the
       Court ruled to exclude his testimony based on the fact that [Petitioner]
       failed to timely [file a] notice of alibi. . . .

              Prior to the second setting of the trial, I requested a subpoena for Mr.
       Parker. . . . I personally served Mr. Parker with the subpoena prior to trial
       at my office. Mr. Parker remained in contact with me and willingly
       participated in calls and met with me in preparation for the second trial
       date.

               Mr. Parker was present and prepared to testify at the second setting
       of the trial.

              Prior to the third setting, I was no longer able to get in contact with
       Mr. Parker. It was relayed to me indirectly that he was refusing to testify
       on [Petitioner’s] behalf. I did not request a subpoena for Mr. Parker until . .
       . 2 days before the trial was set to begin.

                I was unable to otherwise secure the attendance of Mr. Parker at
       trial.

                                             -3-
              Upon [Petitioner’s] convictions . . . , I failed to advise [Petitioner]
       regarding his right to an appeal and that the State would pay for the costs
       and attorney’s fees for an appeal if he is found to be indigent.

               I failed to file a timely motion for a new trial on behalf of
       [Petitioner].

       At the hearing on the petition for post-conviction relief, Petitioner did not present
any evidence. In fact, Petitioner himself did not even appear at the hearing. According
to post-conviction counsel, Petitioner “travels around” working construction and has “to
rely on others for transportation” because he does not have a driver’s license. Post-
conviction counsel argued that the petition did not “raise any substantial questions of
facts or events to which the Petitioner participated,” so it was unnecessary for Petitioner
to testify or even appear at the hearing. Counsel for the State objected to “going
forward” with the hearing without Petitioner present, arguing that Tennessee Code
Annotated section 40-30-110(a) required the appearance of Petitioner at the hearing on
the petition.

       Post-conviction counsel explained that he originally intended to present the
testimony of trial counsel and the testimony of the “key material witness,” Mr. Parker.
Post-conviction counsel attempted to subpoena Mr. Parker on July 1, 2016, in advance of
the July 19, 2016 hearing on the petition. The subpoena came back unserved and the
officer wrote on the subpoena that Mr. Parker “was avoiding service.” Post-conviction
counsel asked the post-conviction court for a continuance and to “issue a capias and set a
material witness bond for Mr. Parker.” The State asked the post-conviction court to
dismiss the petition with prejudice on the basis that Petitioner was not present. The
parties argued at the hearing about whether Petitioner’s attendance was actually required
by Tennessee Code Annotated section 40-30-110(a).

       At the conclusion of the hearing, the post-conviction court discussed the issue of
whether Petitioner’s attendance at the hearing was required by Tennessee Code
Annotated section 40-30-110(a). The post-conviction court determined that according to
the statute, “if the Petition raises substantial questions of fact as to events in which the
petitioner participated, then the petitioner shall appear and give testimony at the
evidentiary hearing.” The post-conviction court commented:

               [T]he fact of the matter is the right to pursue post[-]conviction relief
       is one that is not constitutionally required. It is granted by Statute.
       Petitioners who seek that remedy have to turn square corners with the State
       as it relates to the procedures applicable to post[-]conviction matters.

              ....
                                             -4-
              I don’t see any alternative granted by the Statute for a Petitioner to
       raise substantial questions of fact as [to] events in which the Petitioner
       participated and then simply decide not to show up at the hearing. I don’t
       think the Statute gives me any discretion in respect to that because it says,
       “the Petitioner shall appear and give testimony.”

               But even if I did have discretion, based upon the facts of this case, I
       don’t think I would exercise my discretion for the benefit of the Petitioner
       in this particular setting. Not based upon the facts that I’ve had presented
       to me today, the record as a whole, I find that . . . the Petitioner’s failure to
       appear is voluntary. And as such, I think his Petition is due to be dismissed
       because he has raised substantial questions of fact as to events in which he
       participated. And notwithstanding the mandatory provisions of the Statute
       he is not here and has offered no . . . reasons why he’s not here. And so for
       those reasons, I’m ordering that the Petition be dismissed.

       In a written order entered on July 26, 2016, the post-conviction court dismissed
the petition for relief on the basis that Petitioner was not present at the hearing and his
presence was required by Tennessee Code Annotated section 40-30-110(a). Petitioner
filed an untimely notice of appeal on September 9, 2016.

                                          Analysis

                               A. Untimely Notice of Appeal

        Prior to resolving any of the underlying issues presented by Petitioner on appeal,
this Court must determine whether the interests of justice necessitate the waiver of timely
filing of the notice of appeal. Petitioner acknowledges that his notice of appeal, filed
forty-five days after the order dismissing the petition for post-conviction relief, is
untimely. Petitioner “does not have an excuse for failing to file a notice of appeal on
time” but argues that “justice” would be served by resolution of his issues on appeal and
that there would be no prejudice to the State as a result of waiving the timely filing of the
notice of appeal. The State, citing State v. Roy Thomas Rogers, No. W2015-00988-CCA-
R3-CD, 2016 WL 1045352, at *2 (Tenn. Crim. App. Mar. 15, 2016), no perm. app. filed,
contends that Petitioner’s “failure to identify a reason for the delay militates against a
waiver in the interest of justice.” This Court does not endorse or encourage the untimely
filing of a notice of appeal. However, we recognize that the notice of appeal is not
jurisdictional. See Tenn. R. App. P. 4(a). Additionally, Petitioner, unlike the defendant
in Roy Thomas Rogers, has asked this Court to waive the timely filing of the notice of
appeal. In this case, we waive the timely filing of the notice of appeal in order to resolve
Petitioner’s issues.
                                             -5-
                          B. Post-Conviction Standard of Review

        Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). On appeal, this Court will review the post-conviction court’s
findings of fact “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)). This Court will not re-weigh or re-evaluate the
evidence presented or substitute our own inferences for those drawn by the trial court.
Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the weight and
value to be given to testimony, and the factual issues raised by the evidence are to be
resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing Henley, 960
S.W.2d at 578). However, the post-conviction court’s conclusions of law and application
of the law to the facts are reviewed under a purely de novo standard, with no presumption
of correctness. Fields, 40 S.W.3d at 458.

      C. Petitioner’s Decision Not to Appear or Testify at the Evidentiary Hearing

       In denying relief, the post-conviction court specifically found that Petitioner’s
refusal to attend the hearing and testify as to the basis for his claims of ineffective
assistance of counsel led to the failure to meet the burden of proof and, ultimately, was
the basis for the dismissal of the petition. Petitioner argues on appeal that his presence
was not required at the hearing on the petition for post-conviction relief because “the
petition did not raise substantial questions of fact as to events in which [he] participated.”
The State disagrees, arguing instead that Petitioner’s presence was mandatory under the
statute and that he failed to sustain his burden to support a grant of post-conviction relief
without presenting evidence on his behalf.

        The right to post-conviction relief is not a constitutional right; it is a creature of
statute. See T.C.A. § 40-30-101 et seq; see also Serrano v. State, 133 S.W.3d 599, 604
(Tenn. 2004) (citing Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992)). To initiate the
process, a petitioner is required to file a written petition with the clerk of the court in
which the conviction occurred, including “all known claims for relief and a full
disclosure of the factual basis of each claim for relief.” Keough v. State, 356 S.W.3d 366,
370 (Tenn. 2011) (emphasis in original). The petitioner also must verify under oath the
claims and factual allegations of the petition. T.C.A. § 40-30-104(d)-(e). The petitioner
is required to present clear and convincing proof of all factual allegations at an
                                             -6-
evidentiary hearing on the petition. T.C.A § 40-30-110(f). Embedded within the Post-
conviction Procedure Act is a provision which “contemplates that the petitioner’s
testimony will be necessary to satisfy this burden of proof.” Keough, 356 S.W.3d at 370
(citing T.C.A. § 40-30-110(a)). Specifically, Tennessee Code Annotated section 40-30-
110(a) provides:

       The petitioner shall appear and give testimony at the evidentiary hearing if
       the petition raises substantial questions of fact as to events in which the
       petitioner participated, unless the petitioner is incarcerated out of state, in
       which case the trial judge may permit the introduction of an affidavit or
       deposition of the petitioner and shall permit the state adequate time to file
       any affidavits or depositions in response the state may wish.

See also Tenn. Sup. Ct. R. 28 § 8(C)(1)(b) (“Petitioner shall testify at the evidentiary
hearing if the petition raises substantial issues of facts, unless petitioner is incarcerated
out of state.”).

       “All that due process requires in the post-conviction setting is that the defendant
have ‘the opportunity to be heard at a meaningful time and in a meaningful manner.’”
Stokes v. State, 146 S.W.3d 56, 61 (Tenn. 2004) (quoting Mathews v. Eldridge, 424 U.S.
319, 333 (1976)). Our supreme court had held that if a petitioner is “given the
opportunity to present proof and argument on the petition for post-conviction relief,” he
has received a full and fair hearing. House v. State, 911 S.W.2d 705, 712 (Tenn. 1995).
This Court has determined that a petitioner who chooses “not to avail himself of that
opportunity” can “effectively [waive] his right to a post-conviction proceeding.” David
Avery v. State, No. M2011-02625-CCA-R3-PC, 2012 WL 6570737, at *5 (Tenn. Crim.
App. Dec. 17, 2012), perm. app. denied (Tenn. Mar. 20, 2013).

        Of course, in order to establish ineffective assistance of counsel, a petitioner must
demonstrate that counsel’s representation fell below the range of competence demanded
of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under
the two prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a
petitioner must prove that counsel’s performance was deficient and that the deficiency
prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408 (Tenn. 2002). Because
a petitioner must establish both elements in order to prevail on a claim of ineffective
assistance of counsel, “failure to prove either deficient performance or resulting prejudice
provides a sufficient basis to deny relief on the claim.” Henley, 960 S.W.2d at 580.

       As previously noted, Petitioner was not present at the evidentiary hearing. A
similar situation presented itself to this Court in Donald Ragland v. State, No. W2012-
00743-CCA-R3-PC, 2013 WL 967769, at *4 (Tenn. Crim. App. Mar. 8, 2013), perm.
app. denied (Tenn. July 12, 2013). In Donald Ragland, the petitioner raised allegations
                                            -7-
of ineffective assistance of counsel and was actually present at a post-conviction hearing
but refused to testify. On appeal from the denial of post-conviction relief, the petitioner
argued that the post-conviction court erred by not forcing him to testify. Id. at *4. This
Court determined:

       [t]he Petitioner’s argument runs contrary to both the letter and the spirit of
       the Post-Conviction Procedure Act. The Post-Conviction Procedure Act
       places a high burden on the petitioner to prove all allegations of fact by
       clear and convincing evidence. As such, it requires a petitioner to testify ‘if
       the petition raises substantial questions of fact as to events in which the
       petitioner participated.’ [T.C.A.] § 40-30-110(a). This requirement is a
       logical extension of the burden that petitioners prove their factual
       allegations by clear and convincing evidence and it is designed to prevent
       petitioners from attempting to circumvent that burden by withholding
       evidence only they can provide. A petitioner may refuse to testify and risk
       the consequences of such a decision. However, a petitioner’s knowing and
       voluntary decision not to testify at a[n] evidentiary hearing does not
       invalidate the entire post-conviction proceedings. To hold otherwise would
       require this [C]ourt to depart from sense and reason.

Donald Ragland, 2013 WL 967769, at *4. We find this reasoning persuasive.

        Here, post-conviction counsel attached to his amended petition merely an affidavit
of trial counsel and a return on an unserved subpoena for a witness who, allegedly, would
have exonerated Petitioner. There was no live testimony offered, and Petitioner was not
present at the hearing. The post-conviction court ultimately determined that the petition
should be dismissed on the basis of Petitioner’s failure to appear or testify at the hearing
as mandated by Tennessee Code Annotated section 40-30-110(a). Now, on appeal,
Petitioner is chiefly complaining about trial counsel’s failure to provide an alibi witness
at trial—certainly a “substantial question of fact as to events in which [Petitioner]
participated.” T.C.A. § 40-30-110(a). The trial transcript, included in the record on
appeal, contained testimony only from witnesses for the State, none of whom claimed to
see Mr. Parker at the scene of the accident. Petitioner did not testify at trial or at the post-
conviction hearing that he was not the driver of the car. In addition, he failed to present
any witnesses at the post-conviction hearing to indicate otherwise.1

       To grant Petitioner’s requested relief on such thin post-conviction proceedings,
particularly when Petitioner is to prove all allegations of fact by clear and convincing

       1
         We acknowledge Petitioner’s argument that the post-conviction court improperly failed to grant
a continuance to allow Petitioner to secure the attendance of Mr. Parker. We will address this issue
below.
                                                 -8-
evidence, would require this Court to “depart from sense and reason.” Donald Ragland,
2013 WL 967769, at *4. The record does not preponderate against the post-conviction
court’s determination that by failing to testify or present any evidence at the hearing with
regard to the alibi witness, Petitioner has failed to satisfy his burden.

        Likewise, the only proof at the hearing with regard to trial counsel’s failure to file
a motion for new trial is the mere affidavit of trial counsel attached to the amended
petition for post-conviction relief. We acknowledge that, in some cases, counsel’s failure
to file a timely motion for new trial may be “so deficient that it becomes presumptively
prejudicial.” Wallace v. State, 121 S.W.3d 652, 657 (Tenn. 2003) (citing United States v.
Cronic, 466 U.S. 648 (1984)). That is, “when ‘counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing,’ the process becomes
‘presumptively unreliable’ and proof of actual prejudice is not required.” Id. (quoting
Cronic, 466 U.S. at 659). In Wallace, the Tennessee Supreme Court determined that
counsel’s failure to file a timely motion for new trial constitutes “abandonment . . . at
such a critical stage of the proceedings” and results in “the failure to preserve and pursue
the available post-trial remedies and the complete failure to subject the State to the
adversarial appellate process.” Id. at 658. However, the court “declin[ed] to adopt a per
se rule regarding a trial counsel’s failure to file a motion for new trial,” instead adopting
the following test to determine when counsel’s deficiency is presumptively prejudicial:
“[A] petitioner in a post-conviction proceeding must establish that he or she intended to
file a motion for new trial and that but for the deficient representation of counsel, a
motion for new trial would have been filed raising issues in addition to sufficiency of the
evidence.” Id. at 659.

        Ordinarily, we would have no hesitation in concluding that trial counsel’s failure
to file a motion for new trial on behalf of Petitioner was deficient performance, satisfying
the first prong of the Strickland test. In this case, however, the only proof of trial
counsel’s failure to file the motion was an affidavit from trial counsel attached to the
petition. Although “[a]ffidavits . . . available to the petitioner supporting the allegations
of the [post-conviction] petition may be attached to it,” T.C.A. § 40-30-104(e), it is well-
established that affidavits are generally inadmissible at evidentiary hearings:

              An affidavit is ordinarily not admissible to prove facts in issue at an
       evidentiary hearing, because it is not subject to cross examination and
       would improperly shift the burden of proof to the adverse party. . . .
       Affidavits are generally not competent evidence unless provided by statute.
       . . . As a general rule, a party is not permitted to create an issue of fact by
       submitting a[n] affidavit whose conclusions contradict a prior deposition or
       other sworn testimony.


                                             -9-
State v. Amy Jo Blankenship, No. M2002-01878-CCA-R3-CD, 2004 WL 508500, at *4
(Tenn. Crim. App. Mar. 16, 2004) (quoting 3 Am. Jur. 2d Affidavits § 19 (2002))
(finding appellant’s affidavit alleging that the public defender’s office had coerced her
into pleading guilty failed to fulfill her burden of establishing why her guilty pleas should
be withdrawn pursuant to Tennessee Rule of Criminal Procedure 32(f)), perm. app.
denied, (Tenn. Oct. 11, 2004); see also Kenneth Bartley v. State, No. E2011-01603-CCA-
R3-PC, 2013 WL 967737, at *15 (Tenn. Crim. App. Mar. 11, 2013) (determining the trial
court improperly admitted and considered an affidavit as evidence at a post-conviction
hearing), no perm. app. filed; State v. Ricky Brandon and Jimmy W. Brandon, No.
M2002-00073-CCA-R3-CD, 2002 WL 31373470, at *3 (Tenn. Crim. App. Oct. 15,
2002) (determining affidavits of appellants alleging facts supporting their ineffective
assistance of counsel claims failed to fulfill their burden of proving the factual allegations
by clear and convincing evidence), perm. app. denied (Tenn. Feb. 24, 2003).
Furthermore, “affidavits are incapable of credibility assessment, which is oftentimes
pivotal in determining ineffective assistance of counsel claims.” Amy Jo Blankenship,
2004 WL 508500, at *4; Ricky Brandon, 2002 WL 31373470, at *3. Therefore, we will
not consider the information contained in trial counsel’s affidavit in determining whether
Petitioner established deficient performance for the failure to file a motion for new trial.
Consequently, Petitioner is unable to establish the first prong of Strickland and is not
entitled to post-conviction relief.

       Furthermore, Petitioner also fails to establish that, but for trial counsel’s deficient
performance, his motion for new trial would have contained issues in addition to
sufficiency of the evidence. Wallace, 121 S.W.3d at 659. In his brief to this Court,
Petitioner asserts that his “late-filed pro se motion for a new trial and request for
transcript of the evidence demonstrate that [Petitioner] was desirous of seeking an appeal
of his convictions and would have done so, but for the deficient representation of
counsel.” Petitioner does not allege on appeal that he would have raised any issues other
than sufficiency, instead pointing to the mere fact that he filed a motion for new trial as
proof that he was desirous of seeking an appeal. The motion for new trial filed by
Petitioner states:

       (1) I was not told I could appeal a trial case
       (2) ineffective assistance of counsel
       (3) my witness was not subpoena to the court room
       (4) I would like to testify for myself
       (5) I am still in jail for this charg[e] I do not have access to any law book’s
       to help me with this
       (6) I was not told about any motion I could file to help me
       (7) my witness was allowed in the tr[ia]l
       (8) with me in jail I could not go find my witness

                                            - 10 -
        The post-conviction court determined that Petitioner’s pro se motion for new trial
was not clear and “need[ed] to be flushed out” by testimony from the Petitioner because
there were “factual assertions” in the petition that were unclear. Specifically, the post-
conviction court pointed to numbers (6), (7), and (8) in Petitioner’s motion because they
raised substantial questions of fact as to events in which Petitioner participated. In other
words, Petitioner was required to appear and testify at the hearing pursuant to Tennessee
Code Annotated section 40-30-110(a). Implicit in this ruling is a determination that
Petitioner failed to show that he would have raised issues other than sufficiency of the
evidence on appeal. See Wallace, 121 S.W.3d at 659. We agree. While we recognize
Petitioner filed the motion pro se, the statements and allegations contained within the
motion need explanation. The mere fact that Petitioner filed an untimely pro se motion
for new trial, without his testimony to explain the motion and the relief sought, did not
satisfy the burden required under Wallace to establish prejudice. In other words, we
agree with the post-conviction court that Petitioner has failed to satisfy his burden.
Petitioner is not entitled to relief on this issue, in large part due to his absence at the
hearing and his failure to present witnesses to support his position. Petitioner is not
entitled to relief on this issue.

                                D. Denial of Continuance

       Lastly, Petitioner complains that the post-conviction court erred by failing to grant
a continuance so the court could issue a capias to secure Mr. Parker’s presence as a
witness. The State argues that the post-conviction court did not abuse its discretion.

        “[T]he granting or denying of a continuance is a matter which addresses itself to
the sound discretion of the trial judge.” Moorehead v. State, 409 S.W.2d 357, 358 (Tenn.
1966) (citing Bass v. State, 231 S.W.2d 707 (Tenn. 1950)). An abuse of discretion is
demonstrated by showing that the failure to grant a continuance denied the defendant a
fair trial or that it could be reasonably concluded that a different result would have
followed had the continuance been granted. State v. Hines, 919 S.W.2d 573, 579 (Tenn.
1995) (citing State v. Wooden, 658 S.W.2d 553, 558 (Tenn. Crim. App. 1983)). “The
burden rests upon the party seeking the continuance to show how the court’s action was
prejudicial. The only test is whether the defendant has been deprived of his rights and an
injustice done.” State v. Goodman, 643 S.W.2d 375, 378 (Tenn. Crim. App. 1982)
(citing Baxter v. State, 503 S.W.2d 226, 228 (Tenn. Crim. App. 1973)).

        Post-conviction counsel asked for a continuance to secure the attendance of Mr.
Parker at the hearing. The affidavit of trial counsel, submitted at the hearing, indicated
that there were issues in securing Mr. Parker’s presence at trial. In fact, trial counsel
claimed he learned “indirectly” that the witness was “refusing to testify” for Petitioner at
trial almost two years prior to the hearing on the post-conviction petition. Additionally,
post-conviction counsel acknowledged that he had attempted to secure Mr. Parker’s
                                           - 11 -
presence for approximately four months prior to trial yet waited until the day of the
hearing to ask for a continuance. The post-conviction court determined that a decision on
the motion for a continuance was not necessary based on Petitioner’s failure to attend or
testify at the post-conviction hearing. Because we have determined Petitioner is not
entitled to post-conviction relief, in great part due to his own failure to attend and testify
at the hearing, we decline to find that the post-conviction court abused its discretion in
denying a continuance. Petitioner is not entitled to relief on this issue.

                                         Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.


                                           ____________________________________
                                           TIMOTHY L. EASTER, JUDGE




                                            - 12 -
