NORMA McGEE OGLE, J.
The petitioner, William K. Paulson, appeals the post-conviction court's denial of post-conviction relief from his convictions of reckless endangerment, felony evading arrest, driving without a license, and violating the state registration law. On appeal, the petitioner contends that the post-conviction court erred in determining that he received effective assistance of counsel. Upon review, we affirm the judgment of the post-conviction court.
The proof at trial revealed that on the morning of March 6, 2003, the petitioner was stopped by Officer John Day because the license plate on the petitioner's vehicle was not illuminated.
During the ensuing pursuit, the petitioner refused to stop.
At trial, the petitioner acknowledged that he fled from the officers, but he maintained that some of the officers were "somewhat hostile" toward him.
The jury found the petitioner guilty of reckless endangerment, two counts of felony evading arrest, misdemeanor evading arrest, a violation of the driver's license law, and a violation of the state registration law, and the trial court imposed an effective eighteen-year sentence.
Thereafter, the petitioner filed a pro se petition for post-conviction relief, alleging, in pertinent part, that his trial counsel was ineffective by failing to raise the issue of the petitioner's "mental problems" at trial. Counsel was appointed, and an amended post-conviction petition was filed, again alleging that trial counsel was ineffective by failing to raise the issue of the petitioner's "mental instability" at trial. The petitioner contended that he was advised by counsel to not mention his mental problems at trial.
The petitioner attached exhibits to his petition to support his claims. Exhibit 1 was the order appointing trial counsel to the petitioner's case and the indictment charging the petitioner. Exhibit 2 was an August 7, 2002 letter written by Michael B. Lange, an "Assistant Legal Defender" from Pima County, Tucson, Arizona, to Dave Mitchell, a "Clinical Liason." An attachment was included that listed the petitioner's medications. The attachment reflected that the petitioner was daily administered one-half of a 100-milligram tablet of Seroquel and one tablet each of naproxen, a multi-vitamin, grape seed extract, vitamin C, and fish oil concentrate.
Exhibit 2 also contained a letter documenting a June 22, 2002, "Rule 11 Psychiatric Evaluation" of the petitioner by Dr. Herschel D. Rosenzweig of Tucson, Arizona. According to the letter, the petitioner was evaluated after he was charged with "Possession of a Narcotic Drug, Aggravated Criminal Damage and Possession of Drug Paraphernalia." The petitioner told Dr. Rosenzweig that he was taking 500 milligrams of Seroquel daily. Dr. Rosenzweig's letter also stated that the petitioner had a history of "paranoid ideation" consisting of "visual hallucinations or distortions" which led him to believe that police were pursuing and trying to kill him. Dr. Rosenzweig stated that the petitioner suffered from paranoid schizophrenia and that it appeared to be under control with the use of antipsychotic medication. Dr. Rosenzweig concluded that the petitioner was competent to stand trial for the Arizona charges.
The petitioner's Exhibit 3 was a September 27, 2002 minute entry from the Pima County Arizona Superior Court, reflecting that the petitioner pled "guilty except insane" to possession of a narcotic drug and aggravated criminal damage and that Dr. Rosenzweig's report supported the plea.
Exhibit 4 was a letter documenting a psychological evaluation of the petitioner by Todd C. Flynn, Ph.D., on September 14, 2000, in Tucson, Arizona. Dr. Flynn stated that the petitioner's "history, collateral information, presentation on interview and psychological test results are consistent with some form of severe emotional disorder." However, Dr. Flynn said that "[t]he disorder does not appear to affect [the petitioner's] ability to come to a rational and factual understanding of the legal procedure in criminal Court." Exhibit 5 was a list of the exhibits at the trial in the instant case, which consisted of eight photographs.
Exhibit 6 was a February 16, 2006 letter to Knox County Criminal Court Judge Richard Baumgartner from Dr. Clifton R. Tennison, Jr., a certified forensic examiner from the Helen Ross McNabb Center. In the letter, Dr. Tennison stated that the petitioner was competent to stand trial and that an insanity defense could not be supported for the charges of aggravated burglary, theft, and assault, which were not the underlying charges in the instant case. Dr. Tennison recommended that the petitioner continue taking medication to maintain competency. Exhibit 7 was a copy of the jury instructions from the trial in the instant case.
In his petition, the petitioner argued that trial counsel should have used the information in the exhibits regarding his mental problems to defend the evading arrest charge. The petitioner conceded that Exhibit 6, for the most part, did not support his post-conviction claims. However, he argued that Dr. Tennison's recommendation that the petitioner continue receiving mental health treatment and medication in order to remain competent could be construed to mean that Dr. Tennison believed the petitioner would not be competent if he did not take his medication. The petitioner asserted that he was not taking his medication when he was arrested for the instant charges.
The petitioner also argued that trial counsel was ineffective by failing to raise the defense of insanity. The petitioner contended that evidence of his mental defect could have demonstrated to the jury that he resisted arrest and evaded police because he feared he would be injured.
At the post-conviction hearing, the parties agreed to allow the court to determine the issue based solely upon the pleadings and the attached exhibits. In a written order, the post-conviction court found:
The court further noted that the record was silent concerning any possible discussions between the petitioner and counsel concerning his mental health and that there was no indication the petitioner requested trial counsel use the evidence of his mental defect at trial. The court opined that introducing proof of the petitioner's mental history, which was intertwined with his prior criminal history, could have damaged the petitioner's case. The court determined that "[t]he [p]etition appears to be nothing more than second-guessing or hindsight." Therefore, the court denied the petition, finding that the petitioner had failed to establish his claim of ineffective assistance of counsel by clear and convincing evidence. On appeal, the petitioner challenges this ruling.
Initially, we note that the State contends that the appellant's notice of appeal was untimely. Rule 4(a) of the Tennessee Rules of Appellate Procedure instructs that "the notice of appeal required by Rule 3 shall be filed with and received by the clerk of the trial court within 30 days after the date of entry of the judgment appealed from . . . ." In the instant case, the post-conviction court's order denying relief was filed on July 6, 2011. The time for filing the notice of appeal expired on August 5, 2011, a Friday. However, the petitioner's notice of appeal was filed on August 8, 2011, the following Monday. Therefore, the petitioner's notice of appeal was untimely. Regardless, Rule 4 provides that "in all criminal cases the `notice of appeal' document is not jurisdictional and the filing of such document may be waived in the interest of justice." Tenn. R. App. P. 4(a). We have chosen to waive the timely filing to address the petitioner's concerns.
To be successful in his claim for post-conviction relief, the petitioner must prove factual allegations contained in his post-conviction petition by clear and convincing evidence.
A claim of ineffective assistance of counsel is a mixed question of law and fact.
When a petitioner seeks post-conviction relief on the basis of ineffective assistance of counsel, "the petitioner bears the burden of proving both that counsel's performance was deficient and that the deficiency prejudiced the defense."
The petitioner maintains that trial counsel was ineffective by failing to raise an insanity defense or to present proof of his "mental instability" to establish the "affirmative defense" of "resistance by party about to be injured." Tennessee Code Annotated section 39-11-501(a) provides:
Further, Tennessee Code Annotated section 38-2-101 states that "[l]awful resistance to the commission of a public offense may be made by the party about to be injured, or by others." Our code further provides that the
Tenn. Code Ann. § 38-2-102.
The petitioner contends that the reports by Dr. Rosenzweig and Dr. Flynn specifically address the petitioner's "paranoid mental defect pertaining to interaction with police officers" and support a defense for his actions that resulted in the instant charges. The petitioner asserts that his mental issues were not investigated or raised by counsel.
The exhibits submitted by the petitioner reflect that he has been repeatedly found competent to stand trial. Additionally, Dr. Rosenzweig's report reflected that the petitioner's mental health issues were controlled by medication. Although the petitioner asserts in his post-conviction petition that he was not taking his medication at the time of the offenses, "[a]llegations contained in pleadings are not evidence."
In sum, we conclude that the post-conviction court did not err in denying the petitioner post-conviction relief. Therefore, we affirm the judgment of the post-conviction court.