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Starnes v. State9/14/2000
The petitioner appeals from a denial of post-conviction relief, claiming his trial counsel rendered ineffective assistance. We conclude the record is insufficient for proper appellate review. Thus, we remand to the trial court for an additional hearing.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Remanded For Further Proceedings
Alan E. Glenn, J., delivered the opinion of the court, in which David H. Welles and David G. Hayes, JJ., joined.
OPINION
Petitioner, James Wesley Starnes, appeals the denial of his petition for post-conviction relief after an evidentiary hearing. Petitioner was originally convicted of possession of cocaine and marijuana with the intent to sell and received an effective 15-year sentence as a Range II offender. The sole issue in this appeal is whether he was deprived of effective assistance of counsel. Because the record is inadequate for our review, we remand to the trial court for an additional hearing.
PROCEDURAL HISTORY
As a result of an automobile stop on September 19, 1993, the petitioner and his wife, Michelle Starnes, were indicted for possession of cocaine with intent to sell and felony possession of marijuana with intent to sell. Trial counsel was retained to represent both the petitioner and his wife, trial counsel agreeing to compensation in the amount of $6,000 to be paid from funds to be received in a personal injury suit in which trial counsel represented the petitioner and his wife.
The case was set for trial by jury; however, petitioner deliberately failed to appear. The wife's trial proceeded, and she was convicted of the lesser offenses of simple possession of drugs. Trial counsel continued to represent the wife during her appellate process.
Petitioner returned to the jurisdiction. On October 7, 1994, trial counsel filed a motion to withdraw from his representation of petitioner, alleging "a conflict . . . to represent the best interest of the defendant James Wesley Starnes." The record before this court does not contain the transcript of the hearing on the motion to withdraw, nor any order relating to the disposition of the motion. Trial counsel testified that his request was denied, and the findings of the post-conviction judge state that the motion was denied. However, the post-conviction judge noted that there was no order regarding this motion in the record.
Trial counsel continued to represent the petitioner. Petitioner was tried by jury and convicted in December 1994. It is apparent from the appellate record that petitioner contended at trial that the drugs belonged to his wife. Although the record of the original proceedings is not before us, it is apparent from the appellate record that the public defender represented the petitioner in his direct appeal.
Original trial counsel continued to represent the wife in her direct appeal, alleging the trial court erred in denying her probation. This court modified her term of confinement from the ll months and 29 days ordered by the trial court to 180 days followed by supervised probation. State v. Michelle Starnes, No. 02C01-9504-CC-00103, 1995 WL 764999 (Tenn. Crim. App., Jackson, Dec. 28, 1995).
In petitioner's direct appeal, the only issues raised were sufficiency of the evidence, denial of the motion to suppress, and excessive sentencing. This court concluded there was sufficient evidence to support petitioner's convictions in spite of his allegations that the drugs belonged to his wife; the trial court properly refused to hear the motion to suppress based upon trial counsel's failure to timely file the same; and the trial court properly senten
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