      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE              FILED
                       NOVEMBER 1997 SESSION
                                                         December 23, 1997

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk



RICKY LEE WOMAC,                   )
                                   ) C.C.A. No. 03C01-9608-CR-00294
      Appellant,                   )
                                   ) McMinn County
V.                                 )
                                   ) Honorable Mayo L. Mashburn, Judge
                                   )
STATE OF TENNESSEE,                )
                                   ) (Post-Conviction)
      Appellee.                    )




FOR THE APPELLANT:                    FOR THE APPELLEE:

Ricky Lee Womac, Pro Se               John Knox Walkup
Northeast Correctional Center         Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683               Peter M. Coughlan
                                      Assistant Attorney General
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493

                                      Jerry N. Estes
                                      District Attorney General
                                      203 E. Madison Avenue
                                      P.O. Box 647
                                      Athens, TN 37371




OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                                  OPINION
       The appellant, Ricky Lee Womac, was convicted of facilitation to commit

first degree murder. On direct appeal his conviction was affirmed by this Court.

Thereafter, the appellant filed a petition seeking post-conviction relief. The trial

court summarily dismissed the petition without an evidentiary hearing finding the

allegations, even if taken as true, did not state a claim upon which relief could be

granted. Approximately forty-seven days after the trial court’s dismissal became

final, the appellant filed a notice of appeal to this Court. Upon review, we affirm.



       The state argues that the appellant did not timely file his notice of appeal

in accordance with T.R.A.P. 4(a). Therefore, the state contends this appeal is

time barred. We agree that the appellant did not timely file his notice of appeal.

However, we see no prejudice accruing to the state in considering the appellant’s

allegations. Therefore, in the interest of justice, we waive the appellant’s

untimely filing. State v. Mullins, 767 S.W.2d 668 (Tenn. Crim. App. 1988).



       The appellant alleges that he received ineffective assistance of counsel.

Specifically, he claims that his trial counsel communicated to him through his

mother, failed to investigate allegations that he had been beaten by jail officials,

and failed to pursue claims of an illegal investigation of the crime scene.



       It is well settled that a clear but patently nonmeritorious petition may be

dismissed summarily. Martucci v. State, 872 S.W.2d 947 (Tenn. Crim. App.

1993). A petition which is unclear to the extent that it cannot be so dismissed

requires the appointment of counsel. Id. at 949. If the appointed counsel

determines that the appellant has a valid ground to proceed, he or she should

file an amended petition. Id. Tenn. Code Ann. § 40-30-206(f) states that:



              Upon receipt of a petition in proper form, or upon
              receipt of an amended petition, the court shall
              examine the allegations of fact in the petition. 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

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                 determined, the petition shall be dismissed. The
                 order of dismissal shall set forth the court’s
                 conclusions of law.

Tenn. Code Ann. § 40-30-206 (Supp. 1996)


        Upon review of the petition, we find that the appellant’s petition is artfully

drafted. It alleges unambiguous claims as well as the facts to support these

claims. Therefore, it is proper for summary disposition if the trial court correctly

determines that the claims do not allege grounds upon which relief can be

granted.



        The appellant’s allegation regarding his alleged beating by jail officials

occurred after his trial and convictions. The trial court was correct in finding that

this allegation is irrelevant in determining whether the appellant received

effective trial representation. The appellant also alleges that his trial attorney

communicated with him through his mother. He does not allege that his attorney

failed to communicate with him; he simply objects to the attorney’s channel of

communication. This claim fails to allege any harm or prejudice suffered by this

type of consultation. Next, the appellant alleges that “although the subject [the

illegal investigation of the crime scene] was presented at trial, counsel refused to

pursue the subject in the Court of Criminal Appeals.” This allegation clearly

illustrates the appellant’s dislike of the outcome concerning this issue, but does

not prove that he received ineffective assistance of counsel. 1




        Upon consideration of the appellant’s issues, this Court finds that the trial

court was correct in summarily disposing of the appellant’s petition. None of the




        1
         Although the trial transcript is not before us, we note that the post-conviction hearing judge
also presided over the appellant’s trial. In his written order dismissing the appellant’s petition, he
stated that he had reviewed the 1,411 page record of the appellant’s trial. He found that the
appellant’s attorney filed 16 pretrial motions on the appellant’s behalf. Furthermore, he stated that the
appellant’s attorney “demonstrated a degree of preparation equal to or above any defense attorney
this Court has encountered in 10 years of trying criminal cases.”

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allegations, even if proven true, would demonstrate that the appellant received

ineffective assistance of counsel.



AFFIRMED



                                        ________________________________
                                        PAUL G. SUMMERS, Judge


CONCUR:




______________________________
JOSEPH B. JONES, Presiding Judge




______________________________
J. CURWOOD WITT, JR., Judge




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