Opinion
C.C.A. No. 02C01-9709-CC-00360.
November 2, 1998.
APPEAL FROM FAYETTE COUNTY, HON. JON KERRY BLACKWOOD, JUDGE POST-CONVICTION
FOR THE APPELLANT:
David Crichton
FOR THE APPELLANT:
John Knox Walkup, Attorney General Douglas D. Himes, Asst. Attorney General
The defendant appeals from the dismissal of a petition for post-conviction relief, wherein he sought a delayed appeal from the judgment of the Court of Criminal Appeals, which affirmed his trial court conviction for "hindering a secured creditor," to the Supreme Court.
The resolution of this case rests upon whether the defendant was fully and properly advised by counsel who represented him at trial and on first-tier appeal that he would no longer represent him on further appeals, as well as the date when the right to apply to the Supreme Court for review would expire and other information required by Rule 14 of the Supreme Court Rules. Our determination of this issue turns upon whether the Clerk of the court complied with the requirements of Rule 14.
Rule 14 is as follows:
Permission for leave to withdraw as counsel for an indigent defendant after an adverse final decision in the Court of Criminal Appeals and before preparation and filing of an Application for Permission to Appeal in the Supreme Court must be obtained from the Court of Criminal Appeals not later than fourteen (14) days after that Court's entry of final judgment.
The motion shall state (1) that after a study of the opinion of the Court of Criminal Appeals, the brief filed on behalf of the defendant in that Court presents such issues as are available for second-tier appellate review, if sought by defendant pro se, and (2) that the written notification prescribed by this Rule, along with a copy of the Court of Criminal Appeals opinion, have been forwarded to the defendant.
The motion shall be accompanied by a copy of the written notification forwarded to the defendant which shall advise the defendant (1) that counsel does not intend to file an Application for Permission to Appeal and that leave of Court is being sought to withdraw; (2) that the defendant may file a pro se Application for Permission to Appeal with the Clerk of the Supreme Court if filed within sixty (60) days after entry of final judgment in the Court of Criminal Appeals; (3) the date on which the Court of Criminal Appeals opinion was released; and (4) the date on which an Application for Permission to Appeal is due. The written notification must also reflect the defendant's mailing address to which the notice was forwarded.
Upon the filing of a timely motion in accord with the foregoing requirements, the Court of Criminal Appeals, or any judge thereof, may summarily grant the motion. Upon entry of the order granting the motion to withdraw, a copy thereof will be sent to the defendant by the Clerk, accompanied by letter notice [sic] to defendant of the last day within which to file an Application for Permission to Appeal.
The Court of Criminal Appeals entered judgment on August 6, 1996 affirming the conviction of the defendant. Counsel who represented the defendant testified he sent a letter to the defendant's home in Holly Springs, Mississippi on August 6, 1996 which included a copy of his motion to withdraw and all of the information required by Rule 14. A copy of the transmittal letter was filed in the hearing on the post-conviction petition. There were no copies of the motion, etc. filed in this case as exhibits. The attorney testified he received a letter from the defendant subsequently which caused him to think the defendant had not received the letter and documents he mailed on August 6, 1996. As a result, he then, according to his testimony, sent a letter to the defendant in Tiptonville, Tennessee, where he was incarcerated.
A copy of the letter was made an exhibit to counsel's testimony. This letter stated counsel was enclosing the information required by Rule 14 in the packet which accompanied the letter. The exhibit did not contain copies of these documents.
The brief of the State in a footnote says the Court of Criminal Appeals granted the attorney's motion to withdraw on August 14, 1996. We do not find a copy of the order in the record before us.
The defendant testified he did not receive the letter mailed to him by the attorney on August 6, 1996. He testified he received the letter sent to his former home address in November 1996 when it was forwarded to him by his wife.
At this time, the defendant's wife was in the process of divorcing him.
The trial judge found counsel had indeed informed the defendant of his intent to withdraw and of his right to seek review of his conviction by the Supreme Court. This finding, of course, is based upon a determination of the credibility of the testimony of counsel vis-a-vis the testimony of the defendant. In such case, we are bound by the determination of the credibility of witnesses made by the trial judge. If we were to base our opinion upon this alone, we would affirm the judgment.
However, there is another matter of concern. Rule 14 requires the Clerk of the court to furnish to a defendant a copy of the order granting the motion to withdraw accompanied by letter notice informing the defendant of the last day within which to file an Application for Permission to Appeal to the Supreme Court. There is no showing in this record that this was done.
The purpose of Rule 14 is to insure that an indigent defendant shall not lose his right to seek relief by way of an Application for Permission to Appeal to the Supreme Court because he is not made aware of the withdrawal of counsel or the expiration of the time in which to ask for review by the Supreme Court through no fault of his own.
Rule 14 speaks of what counsel must file with the Court of Criminal Appeals before the court can relieve counsel of further duties in a case. Beyond this, Rule 14 places a positive duty upon the Clerk of the court to send a copy of the order relieving counsel to the defendant.
The termination of the right to seek review by the Supreme Court may not occur in the absence of the Clerk's forwarding to the defendant the material required by Rule 14. The requirement is a safeguard to see that the defendant's right has been protected.
We are compelled to hold that the record does not show compliance with Rule 14 in this case. We must, therefore, reverse the judgment of the trial court denying a delayed appeal to the Supreme Court.
The judgment affirming the conviction of the defendant entered by the Court of Criminal Appeals on August 6, 1996 is set aside and reentered on the date the judgment in this case is filed, and the time for filing an Application for Permission to Appeal to the Supreme Court shall commence to run from that date.
The cost of this appeal is taxed to the State.
________________________________ John K. Byers, Senior Judge
CONCUR:
_______________________________________________________________ David H. Welles, Judge
_______________________________________________________________ Jerry L. Smith, Judge
Although I agree with the majority opinion that the error of the trial court clerk in giving the appellant proper notice pursuant to Rule 14, Rules of the Supreme Court, may have cost the appellant his right to apply for permission to appeal to the Tennessee Supreme Court, I must dissent from the holding of the Court that such an omission entitles the appellant to post-conviction relief in the form of a delayed appeal.
Tennessee Code Annotated Section 40-30-203 provides that relief under the Post-Conviction Act shall be granted:
. . . when the conviction or sentence is void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States.
Tennessee Code Annotated Section 40-30-213 allows a delayed appeal when a criminal defendant is unconstitutionally denied an appeal from his conviction. In Pinkston v. State, 668 S.W.2d 676 (Tenn.Crim.App. 1984); this Court concluded that as a matter of state constitutional law the right to the effective assistance of counsel mandated that counsel may not unilaterally act in such a way so as to deny a criminal defendant second tier review of his conviction in the Tennessee Supreme Court. Id. at 677. Thus, following an affirmance of a conviction on direct appeal, counsel has a duty to timely file an application for permission to appeal pursuant to Tenn. R. App. P. 11, or to withdraw from the case pursuant to Rule 14, Rules of the Tennessee Supreme Court. This latter rule requires, in order for counsel to withdraw, that the defendant be fully apprised in a timely fashion of his rights to second tier review and how to pursue these rights. Only then will the appellate court allow counsel to withdraw. Failure to either file a timely application for permission to appeal or to properly withdraw under Rule 14 of the Rules of the Supreme Court would result in the grant of a delayed opportunity to present an application for permission to appeal to the Tennessee Supreme Court. Id.
The legislature could of course authorize a delayed appeal in cases where the deprivation of an appeal is the result of non-constitutional errors. To date however it has not done so.
Prior to the adoption of Rule 28, Rules of the Tennessee Supreme Court, governing post-conviction relief procedure, the delayed opportunity at second tier review was obtained by the mechanism of having the trial court conduct an evidentiary hearing wherein the reason for the failure to file a timely application for permission to appeal is established. If it is established that the failure is the result of the unilateral act of counsel in derogation of counsel's state constitutional duty to give effective assistance, the trial court nevertheless denied the post-conviction petition. On appeal however, this Court could then vacate its previous judgment and then reinstate the judgment immediately so as to start again the time period for filing an application for permission to appeal. Id. at 677-78.
In 1996 the Tennessee Supreme Court, pursuant to a legislative directive to adopt rules governing procedure in cases arising under the Post-conviction Procedures Act, adopted Rule 28, Rules of the Tennessee Supreme Court. See, Tenn. Code Ann. Sec. 40-30-218. rule 28, Sec. 9(D) allows this Court to grant a delayed opportunity for second tier review when we find:
. . . that the petitioner was deprived of the right to request an appeal pursuant to Rule 11, Tennessee Rules of Appellate Procedure.
While a literal reading of this rule might lead one to conclude that it would cover the situation presented here, i.e. deprivation of discretionary review through the error of a trial court clerk, it must be remembered that Rule 28 is intended to be consistent with the Post-Conviction Procedures Act. See, Tenn. Code Ann. Sec. 40-30-218. Therefore, in my opinion Rule 28 cannot be read to grant a right to delayed second tier review unless the deprivation of such review is the result of an abridgement of a state or federal constitutional right such as the state constitutional right to effective assistance of counsel. See, Pinkston v. State,supra.
Heretofore, any violation of Rule 14 which resulted in the deprivation of second tier review has been tied to the actions or inactions of the defendant's lawyer which constitutes ineffective assistance of counsel under the state constitution. I am unaware of any case announcing a constitutional right to have a trial court clerk give notice as required by Supreme Court Rule 14, and I do not believe any such right exists.
It must also be remembered that there is no per se constitutional right to even a first tier appeal much less discretionary second tier review. State v. Gillespie, 898 S.W.2d 738, 741 (Tenn.Crim.App. 1994).
Thus, I do not believe the trial court clerk's error under Rule 14 entitles the appellant to post-conviction relief so long as the trial court's findings of fact, adequately supported by the record, establishes counsel acted properly under Rule 14, Rules of the Tennessee Supreme Court.
The majority concedes that the trial court's finding that counsel fulfilled his obligations under Rule 14 is adequately supported by the record and that this Court is bound by this finding.
For these reasons, I dissent.
___________________________ JERRY L. SMITH, JUDGE