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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
Assigned on Briefs September 18, 2001 STATE OF TENNESSEE v. JOHN L. GOODWIN, III
Post-Conviction Appeal from the Criminal Court for Sumner County No. 5718 Tom E. Gray, Judge

No. M2001-00044-CCA-R3-PC - Filed August 2, 2002

The petitioner, John L. Goodwin, III, was convicted of attempted rape and aggravated burglary. State v. John L. Goodwin, III, No. 01-C01-9108-CR-00242, 1992 Tenn. Crim. App. LEXIS 859, at *1 (Tenn. Crim. App. at Nashville, Nov. 12, 1992). The petitioner decided to waive his right to a direct appeal of his verdict and filed a post-conviction petition for review. Id. His petition was denied, and on appeal this Court found that the petitioner waived his right to a direct appeal based on erroneous advice of counsel and thus granted him an opportunity to file a motion for new trial and bring a delayed direct appeal. Id. at **3-4. The petitioner filed a motion for new trial, which the trial court denied, and the petitioner brought a delayed direct appeal before this Court. State v. Goodwin, 909 S.W.2d 35, 37 (Tenn. Crim. App. 1995). This Court affirmed the petitioner's conviction, but remanded the petitioner's case for re-sentencing. Id. at 45-46. The petitioner was re-sentenced, and he appealed his new sentence to this Court, as well as the trial court's denial of his writ of habeas corpus. State v. John L. Goodwin, III, No. 01C01-9601-CR00013, 1997 Tenn. Crim. App. LEXIS 679, at *1 (Tenn. Crim. App. at Nashville, July 23, 1997). We reviewed his sentence and ultimately found that the trial court properly imposed the petitioner's new sentence. Id. While this Court was reviewing the petitioner's appeal of his new sentence, he filed an "application for coram nobis and/or in the alternative to re-open post-conviction petition." John L. Goodwin, III v. State, No. M2000-0757-CCA-R28-CO, at *2 (Tenn. Crim. App. at Nashville, Sept. 19, 1997) (no electronic database citation available). The trial court dismissed this pleading, and we affirmed that ruling. John L. Goodwin, III v. State, No. 01C01-9608-CR-00337 (Tenn. Crim. App. at Nashville, Sept. 19, 1997) (no electronic database citation available). The petitioner then filed a motion to re-open his post-conviction petition, which was ultimately dismissed without a hearing. Id. Thus, we remanded his case for a hearing to determine the merits of what was, essentially, his post-conviction petition. The petitioner now brings the instant appeal of the denial of his petition for post-conviction relief, challenging: the fairness of his post-conviction hearing; his sentence; his notice of the charges against him; the constitutionality of Tennessee Rule of Criminal Procedure 44(a); the alleged conspiracy between various court officers against him; the effectiveness of his counsel; and the jury instructions. After reviewing the petitioner's claims, we find that they are either waived, previously determined, or without merit.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed. JERRY L. SMITH, J., delivered the opinion of the court, in which GARY R. WADE, P.J. and DAVID G. HAYES, J., joined. John L. Goodwin, III, Pikeville, Tennessee, pro se. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Dee David Gay, Assistant District Attorney General, for appellee, State of Tennessee. OPINION Factual Background In the petitioner's delayed direct appeal, this Court summarized the facts of his case as follows: On August 3, 1989, the victim returned from work to her home, in Hendersonville, Tennessee, between 3:30 and 4:00 in the afternoon. She went back to her bedroom to lie down. While she was lying down, she heard a door slam. Thinking it was her daughter or husband, whom she was expecting, the victim got up to see who it was. Upon opening the door to her bedroom, she saw the Defendant standing in her hallway. She told him to get out of her house, but he grabbed her by the arms and pushed her into the adjacent guest bedroom. The victim stated at trial that the Defendant repeated, "You know you want it," several times. The victim attempted to fight the Defendant off. He pushed her onto the bed, ripped her blouse, tore her bra and pulled off her pantyhose. As the victim and Defendant were fighting, they heard her husband's truck in the driveway. The Defendant got up and attempted to leave the house, but the victim's husband grabbed him as he was trying to walk out the door. The victim called the police, and the victim's husband got the Defendant's name and license plate number to "buy some time" until the police could get there. When the victim's husband thought the police should almost be at the house, he let the Defendant go. An officer arrived, radioed the license plate number to a back-up officer and the back-up officer picked up the Defendant. The Defendant was arrested and arraigned on August 3, 1989. On August 16, 1989, the Defendant filed a motion for self-representation. He was indicted by the Grand Jury of Sumner County on September 14, 1989. The trial court appointed counsel John Pellegrin on September 22, 1989. The trial court held a hearing on Defendant's motion for self-representation on October 27, 1989. The trial court granted the -2-

motion; however, because of certain statements made by the Defendant, the trial court decided to let appointed counsel and Defendant decide if appointed counsel would represent the Defendant or act in an advisory capacity only. On November 9, 1989, the Defendant filed a motion for the trial court to enter an order granting the Defendant the right to represent himself. On November 20, 1989, the court entered an order granting the Defendant's motion to represent himself. The order also stated that Pellegrin would be Defendant's advisory counsel only. On November 20, 1989, the case was continued until December 12, because certain of the Defendant's subpoenas had not been served. On December 6, 1989 Pellegrin filed a motion to withdraw as advisory counsel due to a conflict of interest. The trial court granted this motion on December 7. The trial court appointed Louis Oliver as advisory counsel after a hearing on December 11. The Defendant was convicted in a jury trial in which he represented himself on December 12, 1989. The Defendant filed a motion for the appointment of counsel on December 19. An order granting the motion was also filed December 19 appointing Keith Bell to represent the Defendant at his sentencing hearing. The Defendant was sentenced to eight years on each count to be served consecutively. Bell withdrew as counsel before the appeals process began, and the court ordered the Defendant to be represented by the Public Defender's Office. David Doyle was the attorney of record for the Defendant's Motion for New Trial. This motion was denied. Following the advice of Doyle, the Defendant waived his right to appeal on May 10, 1990. He filed a pro se Petition for Post-conviction relief the same day. Defendant signed a waiver and was allowed to proceed pro se. He made a motion for the appointment of advisory counsel on September 17, 1990. David Doyle was appointed. Although it is not clear when, Doyle subsequently withdrew as advisory counsel. The Defendant later decided to be represented by an attorney, and Matt Bastian was appointed to represent the Defendant at the post-conviction hearing, which took place April 19, 1991. The trial court denied the post-conviction petition and the Defendant appealed to this court. State v. John L. Goodwin, III, 1992 Tenn. Crim. App. LEXIS 859, No. 01-C01-9108-CR-00242 (Tenn. Crim. App., Nashville, filed Nov. 12, 1992). This court ordered that the Defendant proceed by a delayed direct appeal and ordered the trial court to allow the Defendant to file another motion for a new trial. Id. The motion for new trial was denied. Goodwin, 909 S.W.2d at 38-39. Through Mr. Bastian, the petitioner brought a delayed direct appeal of his denied motion for new trial, and this Court affirmed the petitioner's convictions, but vacated his sentences and remanded his case for a new sentencing hearing because the trial court failed to compare the petitioner's potential sentences under the 1982 and 1989 sentencing acts and because the trial court did not adequately articulate either a basis for enhancing the petitioner's sentences or for sentencing him as a Range II offender. Id. at 45-46. The trial court re-sentenced the petitioner, -3-

and he was represented by attorney John R. Phillips at the re-sentencing hearing. Phillips represented the petitioner on appeal of his new sentence, and the petitioner appealed the trial court's denial of his petition for writ of habeas corpus, which he had filed pro se. This Court reviewed both the petitioner's sentence and the trial court's denial of his writ and accordingly affirmed the lower court's determinations. John L. Goodwin, III, 1997 Tenn. Crim. App. LEXIS 679, at *1. Prior to the issuance of that opinion, the petitioner filed a pro se "application for coram nobis and/or in the alternative to re-open original post-conviction petition." John L. Goodwin, III v. State, No. M2000-0757-CCA-R28-CO, at *2 (Tenn. Crim. App. at Nashville, Sept. 19, 1997) (no electronic database citation available). The trial court dismissed the pleading without conducting a hearing. Id. This Court reviewed the lower court's dismissal of the petitioner's pleading and affirmed it, finding that the application for writ of coram nobis was time-barred and that the petitioner had not set forth sufficient grounds for re-opening the petition for post-conviction relief. John L. Goodwin, III v. State, No. 01C01-9608-CR-00337 (Tenn. Crim. App. at Nashville, Sept. 19, 1997) (no electronic database citation available). The petitioner subsequently filed a motion to reopen his petition for post-conviction relief. Judge Jane Wheatcraft deemed this motion to be a petition for post-conviction relief and ruled that the petitioner had presented a colorable claim for relief. Id. The petition was dismissed by another trial judge without a hearing, and thus this Court remanded the petitioner's case for a post-conviction hearing. Id. The post-conviction court held a hearing and found that the petitioner's claims did not merit relief. The petitioner now brings the instant appeal of his denied petition for post-conviction relief, alleging (1) that he did not receive a full and fair post-conviction hearing; (2) that he was incorrectly sentenced; (3) that the state withheld exculpatory information; (4) that he received inadequate notice of the charges against him; (5) that Tennessee Rule of Criminal Procedure 44(a) is unconstitutional; (6) that the assistant district attorney and defense counsel conspired against him; (7) that the trial judge acted as a state agent; (8) that the jury instructions were erroneous; and (9) that he received ineffective assistance of counsel. After reviewing the petitioner's claims, we find that none of them merit relief. Post-Conviction Standard of Review As mentioned supra, the petitioner is currently before this court alleging that his petition for post-conviction relief was wrongly denied. When analyzing allegations that a petitioner is entitled to post-conviction relief, we first note that a petitioner bringing a post-conviction petition for relief bears the burden of proving the allegations asserted in that petition by clear and convincing evidence. See Tenn. Code Ann.

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