        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE               FILED
                      NOVEMB ER SESSION, 1997           January 28, 1998

                                                     Cecil W. Crowson
RAYMOND O. JACKSON,          )                     Appellate Court Clerk
                                    C.C.A. NO. 01C01-9608-CR-00368
                             )
      Appe llant,            )
                             )
                             )      DAVIDSON COUNTY
VS.                          )
                             )      HON. ANN LACY JOHNS
STATE OF TENNESSEE,          )      JUDGE
                             )
      Appellee.              )      (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF DAVIDSON COUNTY


FOR THE APPELLANT:                  FOR THE APPELLEE:

LIONEL R. BARRETT, JR.              JOHN KNOX WALKUP
Wa shington Sq uare-Two Suite 417   Attorney General and Reporter
222 Se cond A venue, N orth
Nashville, TN 37201                 DARYL J. BRAND
                                    Assistant Attorney General
                                    425 5th Avenu e North
                                    Nashville, TN 37243

                                    VICTOR S. JOHNSON
                                    District Attorney General

                                    ROGER D. MOORE
                                    Assistant District Attorney General
                                    Washington Square - Suite 500
                                    222 Se cond A venue, N orth
                                    Nashville, TN 37201-1649



OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE
                                            OPINION

         The Petitioner, Raymond O. Jackson, appe als as o f right pu rsuan t to Ru le

3 of the Tennessee Rules of Appellate Procedure from the trial court’s denial of

his petition for post-conviction re lief. It appears that on M arch 6, 198 0, the

Petitioner was convicted of assault with intent to commit murder, armed robbery,

and kidnapping.1 He was sentenced to five to twenty-one yea rs for the ass ault,

fifteen years for the robbery, and fifty years for the kidnapping. The sentences

were ordered to run consecutively. He filed a pro se petition for post-conviction

relief, appa rently his third, on June 30, 1989.                         Counsel was appointed on

February 6, 1990 . The trial court initially dismissed the petition on February 13,

1990, but later withdrew the order of dismissal to allow the Petitioner to present

further evidence. On March 12, 1996, the trial court entered an order denying the

petition. It is from this order that the Petitioner now appeals. For the reasons set

forth below, we reverse the dismissal of the petition and remand this case to the

trial court for further proceedings consistent with this opinion.



         W e begin our discussion by noting that the record does not contain a

transcript from any hearing on this pe tition for post-c onviction re lief. In fact, the

record does not even contain a copy of the petition.                              As such, informatio n

regarding the circumstances of the Petitioner’s offenses and the evidence

surrounding the petition for post-conviction relief is somewhat limited.                                    The




         1
           The record in this case is exceptionally sparse. As a result, we have had to piece together
the in form ation whic h we relate in this o pinion from seve ral so urce s, inc luding the o pinion s of th is
Court from the Pe titioner’s direct appeal and prior petitions for post-conviction relief.

                                                       -2-
opinion of this Court from the Petitioner’s direct appeal contains the following

description of the circumstances of the offenses:

              The defendant was convicted of the assault, robbery and
      kidnapping of Mr. Jam es M. G owin, a young man 19 years of age.
      At about 11:00 P.M. on May 22, 1978, Mr. Gowin encountered the
      defend ant, Jackson, and his co-defendant, Claude Douglas
      Copeland, at a parkin g lot on Eighth Avenue South in Nashville.
      These two m en told Mr. Go win that they were having car trouble and
      asked him to take them to a mechanic. Copeland introduced
      hims elf as Larry Lewis, and the defendant stated that his name was
      Kenn eth Martin. Afte r some hesitation , Mr. Gow in conse nted to
      assist Jackson and Copeland. The defendant, Jackson, got in the
      rear seat of the auto mob ile beh ind the driver, a nd Co pelan d sat in
      the front seat. They directed Gowin’s driving and reached the
      intersection of Wedgewood and Eighth Avenue. When they reached
      this interse ction, th ey state d that th is was their destination but asked
      him to take them home for a brief time. They gave Gowin directions;
      and after making many turns, they arrived at the intersection of
      Murfreesbo ro and W harf Avenue which was n ot far from their
      beginning point at Wedgewood and Eighth. Copeland got out of the
      car and left Jackson in the back seat; in about 10 minutes, Copeland
      returned.
              Copeland resum ed givin g driving instruc tions w hich h e said
      would return them to Wedgewood and Eighth A venue. A t one po int,
      Copeland told Gow in to slow d own. W hen G owin ha d slowe d to
      about 5 miles per hour, Copeland grabbed the gear stick and
      pushed it from “drive” to the “park” position. At about the same time,
      Copeland put a knife to the victim ’s throat. Jackson got out of the
      car and brandish ed wha t appea red to be a “folding k nife.”
              After forcing the victim out o f his automobile, Jackson and
      Copeland took his watch, wallet, shirt and tennis shoes. They then
      forced the victim to the back floorboard of his automobile, and
      Copeland drove the car away with Jackson sitting beside him in the
      front seat. Jackson then forced the victim to remove his bluejeans
      and became very angr y when he lea rned th at there was a sma ll
      amount of change in the bluejeans which the victim had not given to
      them. They continued to drive around Nashville for about 30
      minutes while Jackson and Copeland argued about whether or not
      they shou ld kill Gowin. Jackson wanted to kill Gowin, and Copeland
      did not. During this time, Jackson cut the victim with his knife.
              They stopped the automobile; and after forcing the victim into
      the trunk, they continued to drive for an additional 30 minutes. They
      stopped the car again, dragged the victim from the trunk and “threw
      him” against a telephone pole. Jac kson the n bega n frantically to
      stab the victim in the back and sliced h is throat and back with the
      knife. Copeland, standing nearby, told Jackson to “hurry up.” They
      event ually left in the victim’s automobile. Being unable to walk, the
      victim crawled to a house in the neighborhood and obtain ed
      assistance. It was determined that he was stabbed 19 times with

                                          -3-
        the knife. The “front and back” of his throat were cut, and there
        were long cuts down his back.

State v. Raymond O. Jackson, C.C.A . No. C -3599 , David son County (Tenn.

Crim. App., Nashville, Mar. 12, 1981). Through the direct appeal, the Petitioner

did not challe nge the sufficiency of the con victing evide nce. He focused instead

on the evidentiary issue of whether the trial court had erred in admitting evidence

of a subsequent crime for the purpose of establishing the p erpetrator’s identity.

Id., slip op. at 1. A panel of this Court found that the issue lacked merit and

affirmed the Petition er’s conv ictions. Id.



        Shor tly after this Court affirmed his convictions, the Petitioner filed his first

petition for post-conviction relief. In that petition, he alleged that he had been

denied effective as sistance of couns el at trial. Raym ond O . Jackson v. S tate,

C.C.A. No. 82 -217- III, David son C ounty (Ten n. Crim . App., Nash ville, Nov. 25,

1983), perm. to appeal denied (Tenn. 1984). More specifically, he asserted that

his trial counsel had failed to investiga te his cas e adeq uately, failed to

comm unicate with him, and failed to prese nt an alibi de fense a t trial. Id., slip op.

at 1-2. After conducting an evidentiary hearing, the trial court found that the

Petition er’s allega tions la cked merit a nd dis miss ed the petition on October 26,

1982. Id. at 1. A panel of this Court affirmed the dismissal on November 25,

1983. Id. at 4. Our supreme court denied permission to appeal on March 12,

1984.



        Shor tly thereafter, the Petitioner filed a second petition for post-conviction

relief. In this petition, he again argued that he was denied effective assistance

of couns el at trial.    Raymond O. Jackson v. S tate, C.C.A. N o. 85-32 9-III,


                                            -4-
Davidson Coun ty (Tenn. Crim. App., Nashville, Dec. 18, 1986), perm. to appeal

denied (Tenn. 1987). More specifically, he asserted that trial counsel was

ineffective in that he failed to request a mental competency evaluation and failed

to advanc e an insa nity defen se. Id., slip op . at 1. Th e trial court denied the

petition. A panel of this Court affirmed the denial, concluding that the issue had

been waived beca use it should ha ve been included in the first petition for p ost-

conviction relief. Id. at 1-2. Our supreme court denied permission to appeal on

March 9, 1987.



       The Petitioner filed his third petition for post-conviction relief, which is the

subject of the case sub judice, on June 30, 1989. Unfortunately, as we stated

above, the record does not contain a copy of the petition . From the trial c ourt’s

order denying the petition, it seems that this petition, like the second petition,

contained a challenge to the effectiveness of trial cou nsel b ased on co unse l’s

failure to pursue a competency evaluation and an insanity defense. In addition,

it appears that the present petition contained a challenge to the effectiveness of

the Pe titioner’s prior post-conviction co unsel for failure to raise the first is sue in

previous post-conviction petitions. Yet because the record does not contain the

petition for post-conviction relief, we c annot determ ine with an y reaso nable

degree of certainty th e issues presen ted in it.



       The record does indicate that counsel was appointed on February 6, 1990

to assist th e Petitio ner. The record also ind icates that the trial cou rt initially

dismissed the petition on February 13, 1990, but later withdrew the order of

dismissal to allow the P etitioner to present further evidence. It is unclear from the

record what proceedings actually transpired with regard to the case sub judice.

                                           -5-
In particu lar, it is unclear whether the trial court conducted an evidentiary hearing

on the present petition. On March 12, 1996, the trial court issued an order

dismissing the petition. After reviewing the record, the trial court concluded that

the first issue, regarding trial counsel’s failure to pursue a competency evaluation

or an insanity defense, had been previous ly determ ined. See Tenn. Code Ann.

§§ 40-30-111 , -112(a) (repeale d 1995). The trial court pointed out that this very

issue had been raised in the seco nd post-con viction petition. The trial court

further concluded that the second issue, regarding the effectiveness of prior post-

conviction counsel in failing to purs ue the first issue, lacked merit under the

holding of our supreme court in Hous e v. State, 911 S.W.2d 705 (Tenn. 1995)

(reiterating that a claim of ineffective a ssistanc e of coun sel in a pre vious po st-

conviction proce eding is not co gniza ble as a bas is for relie f in a subse quent p ost-

conviction action). The trial court also stated that “[t]o the extent that the instant

Petition attem pts to a ssert a ny new groun ds for re lief, the Co urt finds sa me to

have been waived as the record is devoid of any evidence to overcome the

statutory presump tion of waiver.” See Tenn. Code Ann. § 40-30-112(b)(1), (2)

(repealed 1995).      A ccordingly, the trial court dismissed the petition.          The

Petitioner filed a notice of appeal on April 11, 1996.



       It is at this point in the history of the case at bar that problems with the

location of the record arise. The record on appeal was originally due to be filed

on August 22, 1996. On August 20, 1996, the trial court clerk requested an

extension of time for the filing of the record. In support of this request, the trial

court clerk submitted an affidavit stating the following:

              At the present time this file cannot be found. I have part of
       the file, but since it is rather old, part of the case folder has been
       separated from the other pa rt. It was filed out of Judge John’s [sic]

                                           -6-
      Court, part of th e file wa s in he r office a nd in a ll the moving when
      she [Judg e Joh ns] left th e file has just gotten misplaced. I just need
      more tim e to find it.

This Court granted the request, ordering that the trial court clerk have up to and

including September 20, 1996, to file the record.



      On September 16, 1996, the trial court clerk filed a request for a second

extension. The affidavit in support of the extension request stated the following:

             Ms. Armstrong , in the District Attorney General’s Office has
      been helpin g me recon struct th e file by sending me copies of the file
      that they have. She has yet to find all that I need to finish the
      appe al, that is why I am requesting an additional 15-20 days until
      October 11, 1996 to complete the record. Hopefully I will have it
      before then.

This Court granted the second extension request, ordering that the trial court

clerk have up to and including October 11, 1996, to file the record.



      On October 10, 1996, the trial court clerk filed a reques t for a third

extension. In the affidavit supporting the request, the trial court clerk stated that

she had no t yet been able to loc ate the case file. In addition, the trial court clerk

indicated that the District A ttorney Gen eral’s office had not been able to provide

her with sufficient information to reconstruct the entire file. This Court granted the

extension request, ordering that the trial court clerk have up to and including

December 13, 19 96, to file the rec ord. In g ranting the exte nsion reque st, this

Court ordered further tha t the “district attorney general and counsel for the

appellant are hereby directed to assist the trial court clerk in locating or

recons tructing the record in th is matter.”




                                          -7-
       The record was eventually filed on December 16, 1996. Accompanying the

record was an affidavit from the trial court clerk which stated the following:

       As you recall, th e cas e file cannot be located and several extensions
       were filed in this matter. An order was sent to me and other parties
       requesting them to assist m e in recon structing th e file. As of th is
       date none have contacted me with any information. Therefore, I am
       send ing all th e pap erwor k I have pertain ing to th is app eal.

As we sta ted ab ove, the record is sparse. It contains copies of the original arrest

warran ts for the Petitioner. It contains the trial court’s March 12, 1996, order of

dismissal and the Petitioner’s April 11, 1996, notice of appeal. Other than those

documents, the record contains only tangential correspondence between the

Petitioner and th e trial co urt clerk and a notice of entry of co unsel for a ppellate

purposes. The record does not conta in a tran script o f any he aring o n this matter,

nor doe s it contain a copy of the petition for p ost-con viction relief.



       The Petitioner’s brief was originally due on Janu ary 15, 19 97. Due to

illness in counsel’s office, two extension motions were granted by this Cou rt, the

result being that the Petitioner was allowed up to and including March 10, 1997,

to file his brief. On March 10, 1997, cou nsel for the Petitioner filed a third

extension motion. This motion indicated that counsel believed the record was not

sufficient at that time to support the submission of a brief. Counse l was therefore

requesting additional time to attempt to “locate or piece together” a transcript for

the record. C ounse l stated tha t if the record could not be supplemented by

March 31, 1997, then he would su bmit a brief rather tha n request additional

extensions. This Court granted the extension motion, ordering that the Petitioner

have up to and including March 31, 199 7, to file his brief.           The order did,

however, note the following:




                                          -8-
              On November 14, 1996, this Court entered an order giving the
      trial court clerk up to and including December 13, 1996, in which to
      file the record in this appeal. The order directed the district attorney
      general and counsel for the appellant to assist the trial court clerk in
      locating or reconstructing the record in this matter. The record was
      subsequen tly filed by the trial court clerk on December 16, 1996,
      and no motion to supplement the record has been filed pursu ant to
      T.R.A.P. 24(e). Counsel for the appellant was given an opportu nity
      to ensure that the record on appeal was located or reconstructed,
      and the Court finds that this matter has been unnecessarily delayed.

The order also stated that absent exceptional circumstances, no further

extensions would be granted.



       The Petitioner filed his brief on March 31, 1997. The brief points out that

the record in this case has apparently been lost. The brief continues by stating

that “[i]n order not to argue outside the record as pre sently c onstitu ted, it sh ould

be noted that the hearings in the last several years dealt with the ineffective

assistance of couns el in failing to pu rsue an issue of co mpete ncy for an insanity

defense.    Accordingly, no additional facts will be stated.”           The argument

contained in the brief is cursory and essentially indicates that the state of the

record would make a thorough discussion of the post-conviction petition outside

the scope of the record. As a result, the specific relief sought by the Petitioner

in his brief is that this Court “rend er a decision ap propriate for the matters

containe d in the rec ord.”



       The State’s reply brief also n otes th at the re cord w as “gro ssly inadeq uate.”

The State points out that it is the appellant’s ob ligation to ensure tha t the record

is sufficie nt to allo w me aning ful revie w on a ppea l. State v. Ballard, 855 S.W.2d

557, 560-61 (Tenn. 1993); Tenn. R. App. P. 24. Given the inadequacy of the

record, the State argues that this Court cann ot conside r the me rits of the po st-


                                           -9-
conviction petition but rather must presume that the ruling of the trial court was

correct. Ballard, 855 S.W.2 d at 560 -61; State v. S mith, 891 S.W.2d 922, 932

(Tenn. Crim. App . 1994); State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App.

1993). In addition, the State contends that an allegation that the Petitioner’s prior

post-c onviction counse l was ineffe ctive does not furnish ground s for post-

conviction relief beca use the re is no co nstitutiona l right to effective assistance of

counsel in post-co nviction pro ceedin gs. See Hous e v. State, 911 S.W.2d 705,

712 (Tenn. 1995).       The State therefore requests that this Court affirm the

judgment of the trial court dismissing the petition.



       After carefu lly examining the record, we agree that it is inadequate to allow

meaningful review on appeal. In fact, the record does not contain a copy of the

petition for post-conviction relief. Thus, we canno t be certain wha t issues were

presented by the Petitioner. Accordingly, because the record does not conta in

the proceedings and documents relevant to the issues raised in the pe tition, this

Court is precluded from considering the merits of th e Petitione r’s issues. Ballard,

855 S.W.2d at 560-6 1; Banes, 874 S.W.2d at 82; State v. B ennett, 798 S.W.2d

783, 789 (Tenn. Crim. App. 1990), cert. denied, 500 U.S. 915, 111 S.Ct. 2009,

114 L.Ed.2 d 98 (1991 ).



       The present case does, however, present an unusual scenario. The

docum ents necessary for a n adequa te record were apparently lost or misplaced

through no fau lt of the P etitioner. T he trial court clerk attempted to locate the

entire case file, but to no avail. The trial court clerk’s first extension request

seems to indicate that the case file may have been misplaced in the confusion

of moving as the trial judge who heard the petition left office. Of course, we do

                                          -10-
not know for certain what happened to the case file. What we do know is that the

trial court clerk’s case file does no t contain sufficient documentation of the

proce eding s belo w to furn ish an adeq uate re cord o n app eal.



       Given these circumstances, we believe we must reverse the judgment of

the trial court and remand this case for further proceedings. Because it appears

unlike ly that the trial court clerk will be able to locate the actual case file, the case

should first procee d with an attem pt by the p arties to rec onstruc t the record . In

this vein, we believe the pro cedu re sho uld be similar to that set forth in Rule 24(c)

of the Te nness ee Ru les of Ap pellate P rocedu re.



       In the case sub judice, we believe the burden is first on the Pe titioner to

attempt to reconstruct a su fficient record of the p rocee dings below . This attempt

will obviou sly take place in conjunction with input and a response from the District

Attorney General’s office. U pon com pleting the recon struction of a sufficient

record, the Petition er and th e State s hall prese nt the reco rd and th eir argum ents

on the issue s raised to the trial cour t. We recognize that the passage of time has

rendered this task difficult, if not impos sible. If the Pe titioner and the State

cannot recon struct a sufficie nt record to allow meaningful review of the issues

presented, we see no alternative but to allow the Petitioner to file an amended

petition for post-co nviction relief. In that even t, we direct the trial court to allow

the Petitioner to file the amended petition for post-conviction relief relating back

to his origina l, pro se petition , appa rently filed on June 30, 1989. Proceedings on

the amended petition must then begin anew. Because the record from the trial

court ha s been lost, we be lieve fairnes s dictates this result.




                                          -11-
      For the reasons set forth in the discussion above, we conclude that the

judgment of the trial court dismissing the petition for post-conviction relief must

be reversed. We remand this case to the trial court for further proceedings

consistent with this opinion.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE



___________________________________
JOSEPH M. TIPTON, JUDGE




                                       -12-
