              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                               JUNE 1996 SESSION
                                                            FILED
                                                           September 09, 1997

JERRY DORSEY,                      )                        Cecil Crowson, Jr.
                                   )                        Appellate C ourt Clerk

              Appellant,           )       No. 02C01-9508-CR-00218
                                   )
                                   )       Shelby County
v.                                 )
                                   )       Honorable W. Fred Axley, Judge
                                   )
STATE OF TENNESSEE,                )       (Post-Conviction)
                                   )
              Appellee.            )



                                 DISSENTING OPINION



              I respectfully disagree with the results reached in the majority opinion. I

believe that a remand is unnecessary in that the denial of post-conviction relief should

be affirmed on the merits.



              As a starting point, I believe that the record is incomplete in a fashion that

precludes us from barring the third post-conviction petition as untimely filed. At the

beginning of the evidentiary hearing, the following exchange occurred between the

appellant’s counsel and the trial court:

                     COUNSEL: Just for the record, Your Honor, Mr. Dorsey
              had initially filed a pro se petition for post-conviction relief,
              which the first one was dismissed without a hearing.

                     He filed an amended post-conviction relief, which was
              given a new number; and that jacket has since been unable to
              be found.

                     He filed this one, which was technically beyond the
              years; but the court allowed us to proceed under the third
              number but under the actual second filing. If that makes any
              sense.

                     THE COURT: Yes. Sure.

The state made no comment relative to this exchange.
                 It is apparent that a proceeding occurred in the trial court in which it

determined that the third petition could be maintained. However, that proceeding is not

in the record on appeal. Ordinarily, if the record on appeal fails to include the

proceeding from which a trial court enters a particular order, we presume that the trial

court’s ruling was correct. I see no reason why the presumption does not control in this

case, even though the issue of the statute of limitations was raised in this appeal by this

court. Under the presumption, the trial court’s relating the third petition back to the

second petition that was filed on September 19, 1989, removes the statute of limitations

as a viable issue.



                 It follows, as well, that a remand for a hearing relative to the first post-

conviction case is uncalled for. In fact, I note that the state’s responsive pleading in the

trial court asserts that the first “petition was not, in reality, a petition for post-conviction

relief but merely a request for records to explore possible avenues for relief, which the

State was not required to furnish to the petitioner.” If such is true, a hearing upon

remand, limited only to the first petition, would be an effort in futility.1 In any event, the

appellant’s substantive complaints were presented in an evidentiary hearing that is in

the record before us. In this regard, the appellant asserts (1) that his guilty pleas were

entered as a result of the ineffective assistance of counsel, (2) that his pleas were not

voluntarily entered, and (3) that the trial court erred in not allowing him to be present at

the second evidentiary hearing in which his trial attorney testified.



                 The trial court entered detailed findings of fact and conclusions of law.

Relative to the ineffective assistance of counsel, the trial court stated, in pertinent part,

the following:

                       Petitioner claims that counsel failed to file various
                 discovery motions which would have assisted in the


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                  I doubt that this court may properly require such a limitation. If the result of the hearing
were to “reopen” the first case, it is within the trial court’s discretion to determine whether justice requires
accepting an amendm ent to the claims.

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              preparation of his case. Proof offered at the post-conviction
              hearing indicates that [counsel] had unrestricted access to the
              State’s evidence due to the State’s open-file policy on
              discovery. Thus, formal written motions requesting discovery
              were unnecessary. [Counsel] testified that he conducted a
              thorough investigation of Petitioner’s file and reported his
              findings to Petitioner. Additionally, [counsel] testified that after
              a lengthy discussion with the District Attorney’s office, he
              determined that the State had virtually an air-tight case.
              Discovery in this case was thorough, proper, and complete.

                      Petitioner alleges counsel failed to meet with him and
              keep him abreast of trial strategy. [Counsel] testified he met
              with members of Petitioner’s family, visited Petitioner once in
              jail, and met with Petitioner every time the case was scheduled
              in court. Since there were no witnesses and Petitioner had
              fully explained his version of the crime, [counsel] met with
              Petitioner as necessary to keep him updated on developments
              in the case. Petitioner’s claim that [counsel] failed to meet with
              him and discuss trial developments is baseless.

                      Petitioner alleges that counsel failed to properly
              investigate potential witnesses. Testimony offered at trial
              indicated that [counsel] was so motivated by the serious nature
              of the charges against Petitioner that, at his personal expense,
              [counsel] took the extraordinary step of hiring a private
              detective to search for exculpatory witnesses. The investigator
              was unable to locate any such witnesses, a fact [counsel]
              reported back to his client. Accordingly, Petitioner’s claim that
              counsel failed to investigate is without merit.

                     Petitioner’s allegations of ineffective assistance of
              counsel are vague and unsubstantiated. After over eight years
              of incarceration, Petitioner seems to be on a fishing expedition
              to find any grounds to overturn his conviction. Many of
              Petitioner’s claims allude to the methods which should have
              [been] used by counsel. This Court will not use hindsight when
              reviewing every tactic used by the trial attorney. See State v.
              Martin, 627 S.W.2d 139, 142 (Tenn. Crim. App. 1981).

                     This Court finds that [counsel] far exceeded the
              standard required for effective assistance of counsel;
              therefore, all Petitioner’s claims relating to ineffective
              assistance of counsel are without merit and are dismissed.

The record fully supports these determinations.



              Relative to the voluntariness of the guilty pleas, the trial court determined

as follows:

                    After reviewing the record of Petitioner’s guilty plea
              hearing and the proof offered at the hearing on the petition for
              post-conviction relief, this Court finds Petitioner’s guilty pleas


                                               3
               constitutionally valid. Boykin v. Alabama, 395 U.S. 238, 89
               S.Ct. 1709, 23 L.Ed. 2d 274
               (1969), establishes the minimum protection afforded a
               defendant, under the united States Constitution, when that
               defendant enters a guilty plea. The Court held that a guilty
               plea would be constitutionally valid only when it was entered
               both voluntarily and intelligently, and then, only after the
               defendant was informed of his constitutionally protected rights.
               Id. at 243. Tennessee has mandated greater protection to
               criminal defendants entering guilty pleas. The current
               procedure for accepting a guilty plea in Tennessee was
               established by the Supreme Court of Tennessee in State v.
               Mackey, 553 S.W.2d 337 (Tenn. 1977).

                      The proof offered by Petitioner is void of any evidence
               to support a claim that his guilty plea was coerced. At the
               hearing for post-conviction relief, Petitioner himself admitted
               his guilty plea was made of his own free will. Simply following
               Counsel’s experienced advice does not rise to the level of
               coercion required to overturn a guilty plea.

                       The mere fact that Petitioner may have reconsidered his
               guilty plea after several years of incarceration has no bearing
               on whether the plea was voluntarily entered when it was
               accepted by this Court. Any claim by Petitioner that the guilty
               plea was invalid is dismissed.

The record fully supports these determinations.



               As for the trial court’s refusal to allow the appellant to be present when his

trial attorney testified, I agree that the trial court erred. In fact, the trial court in question

has been criticized for a similar denial in a previous post-conviction case, in which this

court essentially held that the appellant’s statutory right to testify includes the right to be

present during other witnesses’ related testimony for rebuttal purposes. See Scott v.

State, 936 S.W.2d 271, 273 (Tenn. Crim. App.), app. denied (Tenn. 1996).



               On the other hand, the appellant has failed to show any prejudice, not

even through speculation, that occurred to him by the trial court’s action. Also, given

the fact that the evidentiary hearings in the present case preceded the decision in Scott,

I would refrain from concluding that there has been prejudice to the judicial process.

Under these circumstances, I consider the error to be harmless.




                                                4
         Under the foregoing circumstances, I would affirm the judgment of the trial

court.



                                           ______________________________
                                           Joseph M. Tipton, Judge




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