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Counsel Not Ineffective For Not Using an Expert Witness

Ineffective assistance of counsel in the original trial or appeal is an often asserted claim when people convicted of crimes are attempting to gain retrials through the statutory post-conviction process. Because effective assistance of counsel in a criminal trial and direct appeal is a constitutional right, having ineffective counsel during those proceedings is a constitutional violation which can result in a new trial. In the recent Tennessee case of Hawkins v. State, M2012-02293-CCA-R3-PC (Tenn.Crim.App. 11-26-2013), the Court of Criminal Appeals affirmed a post-conviction court ruling rejecting the claim that counsel in an aggravated child abuse case was ineffective for not obtaining and using a medical expert to rebut the state's evidence that the victim suffered 'shaken baby syndrome.'

Counsel Not Ineffective For Not Using an Expert Witness

Ineffective assistance of counsel in the original trial or appeal is an often asserted claim when people convicted of crimes are attempting to gain retrials through the statutory post-conviction process. Because effective assistance of counsel in a criminal trial and direct appeal is a constitutional right, having ineffective counsel during those proceedings is a constitutional violation which can result in a new trial. In the recent Tennessee case of Hawkins v. State, M2012-02293-CCA-R3-PC (Tenn.Crim.App. 11-26-2013), the Court of Criminal Appeals affirmed a post-conviction court ruling rejecting the claim that counsel in an aggravated child abuse case was ineffective for not obtaining and using a medical expert to rebut the state's evidence that the victim suffered 'shaken baby syndrome.'

Post-Conviction Limitations Not Tolled by Lack of Knowledge

There is a one year statute of limitations in Tennessee for filing a petition for post-conviction relief (challenging the constitutionality of the underlying conviction) from a final judgment in a criminal case. There are statutory and due process exceptions to strict application of the limitations period in cases where circumstances beyond a petitioner's control prevented the petitioner from having a reasonable opportunity to file a claim within the limitations period. However, lack of knowledge of the basis of a claim does not create such an exception, where the basis for the claim has not been concealed. In the recent Tennessee case of Onate v. State, M2013-00531-CCA-R3-PC (Tenn.Crim.App. 8-28-2013), the Court of Criminal Appeals affirmed the trial court ruling that a petition was untimely, where the petitioner asserted he had not been made aware of the immigration consequences of his guilty plea in time to file a petition within the limitations period.

Post-Conviction Limitations Not Tolled by Lack of Knowledge

There is a one year statute of limitations in Tennessee for filing a petition for post-conviction relief (challenging the constitutionality of the underlying conviction) from a final judgment in a criminal case. There are statutory and due process exceptions to strict application of the limitations period in cases where circumstances beyond a petitioner's control prevented the petitioner from having a reasonable opportunity to file a claim within the limitations period. However, lack of knowledge of the basis of a claim does not create such an exception, where the basis for the claim has not been concealed. In the recent Tennessee case of Onate v. State, M2013-00531-CCA-R3-PC (Tenn.Crim.App. 8-28-2013), the Court of Criminal Appeals affirmed the trial court ruling that a petition was untimely, where the petitioner asserted he had not been made aware of the immigration consequences of his guilty plea in time to file a petition within the limitations period.

Post-Conviction Relief is Not Available for Expunged Charges

In Tennessee, a person who has pled guilty to a crime may seek post-conviction relief from that judgment of conviction, within one year of the judgment becoming final. In the recent case of Rodriguez v. State, M2011-01485-CCA-R3-PC (Tenn.Crim.App. 1-7-2013), the Tennessee Court of Criminal Appeals considered whether the guilty plea must result in an actual conviction before post-conviction relief is available. The majority of the panel concluded that where no conviction exists, there is no claim for post-conviction relief.

Post-Conviction Relief is Not Available for Expunged Charges

In Tennessee, a person who has pled guilty to a crime may seek post-conviction relief from that judgment of conviction, within one year of the judgment becoming final. In the recent case of Rodriguez v. State, M2011-01485-CCA-R3-PC (Tenn.Crim.App. 1-7-2013), the Tennessee Court of Criminal Appeals considered whether the guilty plea must result in an actual conviction before post-conviction relief is available. The majority of the panel concluded that where no conviction exists, there is no claim for post-conviction relief.

Misunderstanding of Sex Offender Probation Doesn't Invalidate Plea

Sex offender probation requirements are generally more extensive and rigid than the typical probation requirements for other criminal convictions. Rules regarding where the probationer may live and work and what activities a probationer may engage in are generally more restrictive. A sex offender probationer's access to the Internet may be prohibited or restricted. Failing to properly register as a sex offender can be both a new criminal offense and a probation violation. In the recent case of Privette v. State, M2011-02640-CCA-R3-PC (Tenn.Crim.App. 12-11-2012), an individual who had pled guilty to incest sought to vacate his guilty plea on the basis that neither the trial court nor his attorney properly advised him regarding the specific probationary requirements he would be subjected to as a result of the conviction.

Misunderstanding of Sex Offender Probation Doesn't Invalidate Plea

Sex offender probation requirements are generally more extensive and rigid than the typical probation requirements for other criminal convictions. Rules regarding where the probationer may live and work and what activities a probationer may engage in are generally more restrictive. A sex offender probationer's access to the Internet may be prohibited or restricted. Failing to properly register as a sex offender can be both a new criminal offense and a probation violation. In the recent case of Privette v. State, M2011-02640-CCA-R3-PC (Tenn.Crim.App. 12-11-2012), an individual who had pled guilty to incest sought to vacate his guilty plea on the basis that neither the trial court nor his attorney properly advised him regarding the specific probationary requirements he would be subjected to as a result of the conviction.

Boy Scout Connection Did Not Require Judicial Recusal

Judicial recusal is appropriate when there is a reasonable basis to question a judge's impartiality. Defendants in criminal cases have a right to an unbiased, impartial judge. In the recent case of Brennan v. State, M2012-00187-CCA-R3-PC (Tenn.Crim.App. 12-4-2012), a defendant who had pled guilty to incest and attempted rape of a child, and received a total effective sentence of twenty years in prison, later discovered that the sentencing Judge's son was in the same Boy Scout Troop with the Defendant. The Defendant filed a petition for post-conviction relief seeking a new sentencing hearing and recusal of the same judge from hearing the post-conviction claim.

Boy Scout Connection Did Not Require Judicial Recusal

Judicial recusal is appropriate when there is a reasonable basis to question a judge's impartiality. Defendants in criminal cases have a right to an unbiased, impartial judge. In the recent case of Brennan v. State, M2012-00187-CCA-R3-PC (Tenn.Crim.App. 12-4-2012), a defendant who had pled guilty to incest and attempted rape of a child, and received a total effective sentence of twenty years in prison, later discovered that the sentencing Judge's son was in the same Boy Scout Troop with the Defendant. The Defendant filed a petition for post-conviction relief seeking a new sentencing hearing and recusal of the same judge from hearing the post-conviction claim.

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