Arzolia Charles Goines v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE September 7, 1999

Cecil Crowson, Jr. JULY SESSION, 1999 Appellate C ourt Clerk

ARZOLIA CHARLES ) C.C.A. NO. 03C01-9808-CR-00288 GOINES, ) ) Appe llant, ) ) KNOX COUNTY VS. ) ) HON. RAY L. JENKINS STATE OF TENNESSEE and ) JUDGE AUBREY L. DAVIS, ) ) Appellees. ) (Post-C onviction/D isbarm ent)

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

FOR THE APPELLANT: FOR THE APPELLEE:

ARZOLIA CHARLES GOINES PAUL G. SUMMERS Pro Se Attorney General and Reporter N.E.C.X. Box 5000 Mountain City, TN 37683 ERIK W. DAAB Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243

RANDALL E. NICHOLS District Attorney General City-County Building Knoxville, TN 37902

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE

OPINION

The Appella nt, Arzolia Charles Goines, is an inmate in the Department of Correction serving a life sentence as a habitual crimin al. 1 On June 11, 1998, he filed a “Petition for Disbarment” in the Criminal Court of Knox County, alleging that his attorney in a previou s post-conviction proceeding should be disbarred because of ineffective a ssistanc e of counsel during the post-conviction proceeding. The trial judge treated the petition as one for post-conviction relief and dismissed it, primarily because it was time-barred. The Appellant appeals, arguing that the trial court erred by dismissing the “Petition for Disbarm ent.” We affirm the ju dgme nt of the trial co urt.

The Appellant’s petition na med A ubrey L. Davis as the respon dent. Mr. Davis was the Assistant Public Defender who represented the Appellant in his previous petition for post-conviction relief. In that previous post-conviction proceeding, the trial judge denied the Appellant relief and this Court affirmed the trial court’s decision.2 The petition for disbarmen t alleged num erous errors committed by the original trial counsel, by the original trial judge, and by M r. Davis, the post-conviction counsel. Although the petition sought disciplinary action against the Appellant’s prior attorney, it also asked that the Appellant be allowed to file a pro se appeal from the previous judgments entered against him. The trial court dismissed the petition because (1) it was barred by the statute of

1 See State v. Arzolia Charles Goines, No. 1208, 1989 WL 34856 (Tenn. Crim. App., Knoxville, Apr. 14, 1989). 2 See Arzolia Charles Goines v. State, No. 03C01-9710-CR-00456, 1999 WL 162487 (Tenn. Crim. App., Knoxville, Mar. 24, 1999).

-2-limitations applicable to post-conviction petitions, (2) the Appellant had previously filed a post-conviction petition attacking the same con viction, and (3) the allegations of ineffective assistance of counsel had been previously determined.

The Appellant’s petition recites that it is filed pursuant to Tennessee Code Annotated § 23-3-202 , which provides that proceedings for disbarment or discipline of an attorney may be instituted in the circuit, chancery, or criminal court of the county of th e attorney’s residence or where the “offense” was committed. In this app eal, the A ppellant a rgues th at the trial judge erred by treating his petition a s one for post-con viction relief. He arg ues tha t pursua nt to the referenced statute, his petition should proceed as a petition for disbarment against his post-conviction attorney, Aubrey L. Davis.

The statute provides that an attorney may be disbarred or suspended for (1) committing an infamous crime or misdemeanor involving moral turpitude, (2) impro perly soliciting employment, (3) wrongfully detaining a client’s money or property, (4) frau dulen tly obtain ing ad miss ion to th e bar, o r (5) en gagin g in unprofessional condu ct, dishonesty, malpractice, or other conduct rendering the attorney unfit to be a member of the bar. Tenn. Code Ann. § 23-3-202.

Upon the filing of a petition pursuant to the above referenced statute, the trial judge is directed to issue a citation requiring the attorney to appear and answer within fifteen days of service o f process . Id. § 23-3-2 02(b). T he statute contemplates that a “preliminary investigation” should be conducted by “comm issioners appointed under the supreme court rules or the state or the local bar association.” Id. § 23-3-202(c). If no such “preliminary investigation” has

-3-been made, the statute directs the trial judge to ap point a specia l master to conduct an investig ation. Id. “Such proceedings shall be expedited and given preceden ce over other b usiness of the c ourt . . . .” Id.

Initially, we note that in Ex pa rte Ch attano oga B ar Ass ’n, 566 S.W.2d 880 (Tenn. 1978), our supreme c ourt held that as a result of its adoption of the disciplinary procedure now found in Rule 9 of the Rules of the Supreme Court, the statutory scheme found in Tennessee Code Annotated § 23-3-202 was no longer available as an alternative disciplinary procedure for use by any bar association or bar co mm ittee. Id. at 884. The court specifically stated, howe ver, “Any individual aggrieved by the act or c ondu ct of an attorne y may avail him self of the statute, or of course may file his comp laint with the d isciplinary co unsel.” Id; see also Wayne David son v. R oger D elp, No. 03A01-9711-CV-00518, 1998 W L 548750 (Tenn. Ct. App., Knoxville, Aug. 14 , 1998). But see John Wayne Slate v. State, No. 03A01-9708-CV-00369, 1998 WL 102072 (Tenn. Ct. Ap p., Knoxville, Feb. 27, 1 998).

W e decline to find that the trial judge erred by treating the Appellant’s pleading as a petition for post-conviction relief. A trial court is not bound by the title of a plead ing. Norton v. Everh art, 895 S.W.2d 317, 319 (Tenn. 1995). Wh ile this petition is clearly styled as a disciplinary action against an attorney, the petition wa s filed by an inmate in the Tennessee Department of Correction and alleges as ground s for disciplinary action only ineffective assista nce o f coun sel. The ramblin g petition a lleges tha t counse l was ineffe ctive for failing to appeal issues re lating to (1) the statute of limitations, (2) prosecutorial misconduct, (3) improper cross-examination, (4) his right to a sequestered jury, and (5) the

-4-exclusion of African -American s from the jury. The petition also alleges that the trial judge erred by not enforcing the Appellant’s right to a unanimous jury. Furthermore, it alleges that the original indictment against the Appellant contained a fatal variance and that an unconstitutional statute was used to render the Ap pellan t a hab itual crim inal.

In addition to reque sting appropriate disciplinary action against M r. Davis, the petition asks that the prior proceedings be stayed so that Appe llant may appeal pro se after all the “paperwork” is returned to the Appellant. Although ineffective assistance of counsel could fall within the definition of “unprofessional condu ct” or “malpractice,” we do not construe the statute to require a trial judge to proceed with disbarment proceedings based on such allegations of ineffective assistance of counsel intertwined with allegations of error by the trial cour t, post-conviction court, a nd ap pellate court. Under these circumstances, we do not believe the trial court should be required to re-examine the petitioner’s allegations in a proceeding brought in the form of a disbarment action against one of his former attorneys. The A ppella nt is free to see k discip linary ac tion ag ainst h is former a ttorney in ac cordan ce with R ule 9 of the Rules o f the Sup reme C ourt.

The judgment of the trial court is affirmed.

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____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ GARY R. WADE, PRESIDING JUDGE

___________________________________ JOE G. RILEY, JUDGE

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