         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 16, 2005

               ANTHONY D. FORSTER v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                          No. 2000-B-1181     Seth Norman, Judge



                      No. M2004-00452-CCA-R3-PC - Filed June 24, 2005


The petitioner, Anthony D. Forster, appeals the summary dismissal of his petition for post-conviction
relief. The judgment of the post-conviction court is affirmed.

                   Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.
WOODALL, JJ., joined.

Anthony D. Forster, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; and
Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        The petitioner was convicted of especially aggravated robbery and the trial court imposed a
sentence of twenty-two years. This court affirmed on direct appeal. See State v. Anthony D. Forster,
M2002-00008-CCA-R3-CD (Tenn. Crim. App., at Nashville, Apr. 1, 2003). The petitioner's
application for permission to appeal to our supreme court was denied on October 13, 2003. The
petitioner filed a timely petition for post-conviction relief, alleging that his waiver of the right to
counsel was not valid. The post-conviction court summarily dismissed the petition, ruling that the
issue had been previously determined by this court on direct appeal.

          The petitioner's conviction relates to the robbery of an Arby's restaurant in Nashville on June
18, 1997. Teresa Obispado, an Arby's employee, testified that the offense occurred between 9:30
and 9:40 a.m. She recalled that the perpetrator, a black male more than six feet tall and weighing
more than two hundred pounds, walked from the back door to the cash registers with the manager,
who had blood on her face. Ms. Obispado stated that the perpetrator directed the manager to lie on
the floor. She identified the petitioner as the perpetrator first from a photographic lineup and later
at trial.
       Betty Kidwell, another Arby's employee, testified that she heard a commotion in the
manager's office and saw a large black male in the office. When the manager and the perpetrator
walked toward the front of the restaurant, Ms. Kidwell ran out the back door, where she saw another
man standing outside. The same man later got into a blue car being driven by the perpetrator. She
was unable to identify the perpetrator from a photographic lineup but did write down the license
number of the blue car. She recalled that after the incident, the manager had a cut on her cheekbone.

        Metro Police Officer James Michael Chastain discovered that the license tag number was
registered to a blue, four-door, 1984 Subaru belonging to the petitioner. After two of the Arby's
employees identified the petitioner from a photographic lineup, Officer Chastain arrested the
petitioner at his apartment. The petitioner provided police a videotaped statement, wherein he
admitted his participation in the robbery.

        Sandra Christian, who was working as a training manager at the Arby's on the day of the
offense, identified the petitioner as the perpetrator, who had gained access to the restaurant through
the back door. She recalled that the petitioner approached her from behind, put his arm around her,
and ordered her to open the safe. Ms. Christian stated that the petitioner grabbed a portable
telephone and struck her on the cheek, took loose change and bills from the safe, and then ordered
her to the front of the store. According to Ms. Christian, the petitioner took the money from both
cash registers and then ordered her to lie on the floor. She suffered a black eye and an open wound
to the side of her face.

       In this appeal, the petitioner contends that the post-conviction court erred by summarily
dismissing his petition for post-conviction relief. He asserts that the issue presented, whether his
waiver of the right to counsel was voluntary, was not previously determined.

       Under the Post-Conviction Procedure Act, a claim which has been previously determined
cannot be a basis for post-conviction relief. See Tenn. Code Ann. § 40-30-106(h) (2003). Tennessee
Code Annotated section 40-30-106 provides as follows:

               A ground for relief is previously determined if a court of competent
       jurisdiction has ruled on the merits after a full and fair hearing. A full and fair hearing
       has occurred where the petitioner is afforded the opportunity to call witnesses and
       otherwise present evidence, regardless of whether the petitioner actually introduced
       any evidence.

Tenn. Code Ann. § 40-30-106(h).

        If the post-conviction court determines that the claims for relief have been previously
determined, "the petition shall be dismissed," and "[t]he order of dismissal shall set forth the court's
conclusions of law." Tenn. Code Ann. § 40-30-106(f). When a claim has been raised and rejected
by this court on direct appeal, it qualifies as having been previously determined. See Harvey v.
State, 749 S.W.2d 478, 479 (Tenn. Crim. App. 1987); Burt v. State, 2 Tenn. Crim. App. 408, 454


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S.W.2d 182, 184 (1970); Morgan v. State, 1 Tenn. Crim. App. 454, 445 S.W.2d 477, 478 (1969);
see also State v. Wright, 225 Tenn. 652, 475 S.W.2d 546 (1972); Searles v. State, 582 S.W.2d 391
(Tenn. Crim. App. 1979); Forrest v. State, 535 S.W.2d 166 (Tenn. Crim. App. 1976); Helton v.
State, 530 S.W.2d 781 (Tenn. Crim. App. 1975); Rudd v. State, 531 S.W.2d 117 (Tenn. Crim. App.
1974); Gant v. State, 507 S.W.2d 133 (Tenn. Crim. App. 1973); Johnson v. Russell, 4 Tenn. Crim.
App. 113, 469 S.W.2d 511 (1971).

       On direct appeal, the petitioner challenged the validity of the waiver of his right to be
represented by counsel at the sentencing hearing and during the hearing on his motion for a new trial.
This court recounted the events leading to the petitioner's decision to proceed pro se:

        [W]e have thoroughly examined the record to determine the path the [petitioner] has
        taken with his attorneys, eventually leading to his self-representation. Since his
        arrest, the [petitioner] had the benefit of four appointed attorneys and one privately
        retained attorney. Prior to trial, the [petitioner] was appointed a public defender who
        asked to be relieved from his position as trial counsel to the [petitioner]. The trial
        court granted the public defender's request, and the [petitioner] retained an attorney
        to represent him at trial. At the conclusion of his trial, the [petitioner's] retained
        attorney asked to be relieved from representing the [petitioner], and the court granted
        his motion. The trial court appointed another attorney to represent the [petitioner]
        at sentencing, but the attorney moved to be relieved as [petitioner's] counsel. The
        [petitioner] also filed a motion to dismiss his attorney and proceed pro se. The trial
        court acquiesced, in light of each attorney citing the [petitioner] as uncooperative and
        argumentative.

Anthony D. Forster, slip op. at 7-8. This court rejected the petitioner's claim that his waiver of the
right to counsel was invalid, concluding that "the trial court properly advised the [petitioner] of the
perils of self-representation, and the [petitioner] made an intelligent and knowing waiver of his right
to counsel." Id. at 8.

       This court also rejected the petitioner's claim that the "trial court frustrated his right to
appeal" by relieving his counsel shortly before the sentencing hearing:

        [N]othing in the record indicates the [petitioner's] right to appeal has been frustrated
        by the actions of the trial court. If any actions have delayed or frustrated the
        [petitioner's] right to appeal, the [petitioner's] own actions have resulted in any delay.
        . . . [T]he [petitioner] has fallen out of favor with all of his attorneys and has
        demanded that he act as his own counsel. . . . The record indicates the [petitioner] has
        been belligerent to the court and to his own counsel. Despite the warnings and
        advice of the trial court, the [petitioner] chose to represent himself. . . . Therefore, the
        [petitioner] cannot blame the trial court.

Id. at 10-11.


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         In his petition for post-conviction relief, the petitioner again asserted that his waiver of the
right to counsel was not knowing and voluntary. He contended that the waiver was invalid because
he did not sign a written waiver and because the trial court failed to fully apprise him of the
consequences of proceeding pro se. While the petitioner asserts in his reply brief that he also
presented a claim that his trial counsel was ineffective, the original petition contains no such claim.
The validity of the petitioner's waiver of the right to counsel was fully litigated and decided by this
court on direct appeal. In consequence, the claim has been previously determined and may not be
a basis for post-conviction relief. See Tenn. Code Ann. § 40-30-106(h). Under these circumstances,
it is our view that the post-conviction court did not err by summarily dismissing the petition.

        Accordingly, the judgment of the post-conviction court is affirmed.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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