Court re-affirms dismissal of Arnold's petition

By Thomas Wilson
STAR STAFF
twilson@starhq.com

   The state Criminal Court of Appeals reaffirmed by a 2-1 majority opinion the dismissal of a Carter County man's petition that alleged he received ineffective legal counsel during his trial for child rape over seven years ago.
   Heard on Tuesday in the Eastern District of the Criminal Court of Appeals at Knoxville, Judge Alan E. Glenn delivered the majority opinion of the court affirming the denial of post-conviction relief for Connie Lee Arnold.
   Arnold was convicted by a Carter County jury of child rape and especially aggravated exploitation in November 1995 following an incident involving one of his daughters in 1994. He was sentenced to consecutive sentences of 25 years for rape and 12 years on the aggravated exploitation conviction.
   Arnold submitted a petition alleging that pretrial publicity prevented his receiving a fair trial in Carter County and that trial counsel was ineffective, presumably, for failing to seek a change of venue.
   On March 10, 2003, the Tennessee Supreme Court granted Arnold's application to appeal and returned the case to the Criminal Court of Appeals for reconsideration in light of Terrance B. Burnett v. State. In that case, Burnett also had alleged ineffectiveness of counsel.
   Judge David H. Welles joined the majority opinion while Judge Joseph M. Tipton filed the dissenting opinion. The same court issued a 2-1 majority ruling made in November dismissing Arnold's petition for post-conviction relief of his sentencing.
   This court agreed with the determination of the post-conviction court that the petition consisted only of conclusory allegations without supporting facts, and affirmed the dismissal on Nov. 20, 2002.
   In his dissenting opinion, Tipton wrote that the case "adequately complies with the 1995 Post-Conviction Procedure Act." He wrote that Smith's petition alleged "a colorable claim regarding the ineffective assistance of counsel for failure to seek a change of venue in the face of bad publicity."
   In a series of correspondences, Arnold vehemently maintained his innocence of the charges. He requested a change of counsel on several occasions, according to court documents of the case.
   Arnold was originally indicted in Johnson County, but the trial was later moved to Carter County, according to court records. Following the affirmation of his convictions and sentences on direct appeal, he filed a "pro se" petition for post-conviction relief.
   Glenn wrote that in the Burnett case, the state supreme court affirmed, after appointment of counsel who had not filed an amended petition, the dismissal without a hearing of an ineffective assistance of counsel claim which "failed to allege any specific facts establishing deficient performance or prejudicial effect on the outcome of his case."
   In the Burnett case, Supreme Court Justice Adolpho Birch wrote the court's opinion in the Burnett case. Birch wrote that "an allegation of ineffective assistance of counsel must show first that counsel's performance was deficient and second that the deficient performance prejudiced the defense." Birch wrote that Burnett " ... fails to allege any specific facts establishing deficient performance or prejudicial effect on the outcome of his case."
   Accordingly, in the case presently under appeal, Glenn wrote " ... we conclude, as did the post-conviction court, that the petitioner presented only a bare and conclusory allegation as to a constitutional violation, and, as such, his claim was not colorable so as to avoid summary dismissal."