State v. Philip Kevin Cook

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED APRIL SESSION, 1997 June 26, 1997

Cecil W. Crowson PHILIP KEVIN COOK, ) Appellate Court Clerk C.C.A. NO. 01C01-9604-CR-00146 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDALL WYATT, JR. 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:

PHILIP KEVIN COOK, Pro Se JOHN KNOX WALKUP Specia l Needs Facility Attorney General and Reporter 7575 Cockrill Bend Road Nashville, TN 37209-1057 PETER COUGHLAN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243

VICTOR S. JOHNSON District Attorney General

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

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE

OPINION

This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appe llate Procedure. On October 9, 1995, the Defendant filed what a ppears to be his third petition for post-conviction relief. The trial court summarily dismissed the petition without appoin ting coun sel or con ducting a n eviden tiary hearin g. It is from the order of dismissal that the Defendant appeals. We affirm the judgm ent of the tria l court.

In 1983, the Defendant was convicted of two cou nts of armed robbery and two counts of being an habitual criminal. He was senten ced to two con secutive life sentences. His convictions and sentences were ultimately affirmed by our suprem e court. 1

On October 24, 1985, the Defendant filed a post-conviction petition alleging mental incompetence at the time of the commission of the crimes an d ineffective assistance of counsel in pursuing the issue regarding his mental incompetence. The trial court denied post-conviction relief and this court affirmed. 2

The Defen dant later filed what ap pears to have be en his se cond p ostconviction petition on Ju ne 2, 1 989. In that pe tition, the Defe ndan t prima rily challenged the validity of the underlying convictions which supported his habitual

1 State v. Cook, 696 S.W .2d 6 (T enn. 198 5).

2 Philip Kevin C ook v. S tate, C.C.A. N o. 86-95 -III, Davidso n Cou nty (Tenn . Crim. A pp., Nas hville, May 29, 1987).

-2-criminal sentences. The trial court den ied post-conviction relief and this court affirmed. 3

The Defendant filed the petition in the case sub judice on October 9, 1995. The primary a llegations raised in th e instant p etition are th at the prior p ostconviction petition s were errone ously dismissed and that the Defendant received ineffective assistance of counsel during the prior post-conviction proceedings. W e point out, a s noted by the trial judge, that Tennessee courts have long adhered to the rule th at a claim of ineffective assistance of counsel in a previous post-conviction proce eding is not co gniza ble as a basis for relief in a subsequent post-conviction action. Hous e v. State, 911 S.W.2d 705, 712 (Tenn . 1995), cert. denied, __ U.S. __, 11 6 S.Ct. 1685 , 134 L.Ed.2d 787 (1996 ).

In the Defendant’s second post-conviction petition, he attempted to attack collate rally convictions entere d in another state . This court uphe ld the trial c ourt’s denial of relief. In the Defendant’s third post-conviction petition, he alleges that at the hearing on his second post-conviction pe tition, the trial court should have taken judicial notice of his mental incapacity because his counsel at his second post-conviction proce eding was ine ffective in bringin g this to the trial c ourt’s attention.

The Defendant’s mental competency at the time of his second post-conviction proceeding was not raised in the trial court at that time or on appeal from the denial of post-conviction relief. This issue is presumed to be waived.

3 Philip Kevin C ook v. S tate, C.C.A. N o. 01C0 1-9208 -CR-0 0247, D avidson Coun ty (Tenn. C rim. App., Nashville, Feb. 9, 1993).

-3-Tenn. C ode Ann . § 40-30-206 (g). “Waiver” is to be determined by an objective standard unde r which a petitio ner is b ound by the a ction o r inactio n of his attorney. House, 911 S.W .2d at 712 . There is no right to effective assistance of counsel in post-co nviction pro ceedin gs, and therefore, an a llegation of ineffective assistance of prior post-conviction counsel does not preclude application of the defens e of waive r. Id. at 714.

As our supreme court stated long ago, “[t]here must be a finality to a ll litigation, criminal as well as civil.” Arthur v. S tate, 483 S.W.2d 95, 97 (Tenn. 1972). We do not believe tha t the allegations con tained in this petition are sufficient to rebut the presumption of waiver or to entitle the Defendant to an evidentiary hearing concerning whether the trial judge should have taken judicial notice of the Defe ndan t’s alleged mental condition at the time of the hearing on his second post-conviction petition.

For the reasons stated herein, we cannot conclude that the trial judge erred in dism issing the po st-con viction p etition. T he jud gme nt of the trial cou rt is affirmed.

____________________________________ DAVID H. WELLES, JUDGE

-4-CONCUR:

___________________________________ GARY R. WADE, JUDGE

___________________________________ J. CURWOOD WITT, JR., JUDGE

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