# FILED

Au gust 28, 1997 Cecil Crowson, Jr

. App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON APRIL 1997 SESSIO N

LARRY D. CARR, ) NO. 02C01-9605- CR-00137 ) Appellant ) SHELBY COUN TY ) V. ) HON. ARTHU R T. BENNET, JU DGE ) STATE OF TENNESSEE, ) (Post-Conv iction) ) Appellee ) )

FOR THE APPELLANT FOR THE APPELLEE Harold D. Archibald John Knox Walkup 33 North Fr

ont Street, Sui te 790 Attorney Gen eral and Repor ter Memphis, Tennessee 38103 450 James Roberts on Parkway Nashvil le, Tennessee 37243- 0493 Deborah A. Tullis Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, Tennessee 37243- 0493 John W. Pierotti Distric t Attorney General 201 Poplar Avenue Memphis, Tennessee 38103-1947 Jennifer Nichols Assistant D istrict A

ttorney Gener

al 201 Poplar Avenue Memphis, Tennessee 38103-1947

OPINION FILE D:______

AFFIRMED IN PART -- DELAYED APP EAL GRANTED W illiam M. B arker, Ju dge2 Opinion The Appellant, Larr

y D. Car r, appeals as of right the She lby County Criminal Court’s di smissal of his petition for post -convic tion relief. H e argues that his trial attorney pr

ovided ineffectiv

e assistance o f counsel. We have revie wed the record on appeal and find that theAppellant’s trial attor ney prov ided effective ass istance of counsel throug h the trial a nd the appeal to thi s Court, but failed to advi se the Appellant of his r ight to seek permission t o appeal his cas e to the Tennessee Supreme Court. Accordingl y, we vacate this Court’s opi nion entered on F ebruary 16, 1994, and re-enter

the opinion so that the Appellant may file an appl ication for permission to appeal to the TennesseeSupreme pursuant to Rule 11 of the Tennessee Rules of Appel late Procedure. We affirm the trial court in all other respects. The Appellant, w hile on parol e for aggrav ated robbery , was arr

ested and charged with another instance of aggravated robbe ry. After a trial on the merits, a jury found the App ellant guilty as charged. The trial court later sentenced him to ten years imprisonment. The A ppellant appealed his convi ction to this Court and we affirmed. State v. Larry D. Carr , C.A.A. No. 02C01-9204-CR -00075 (Tenn. Cr im. App., Jacks on, Feb. 16, 1994). On July 8, 1994, the Appellan t filed this pet ition for post- convicti on relief. On Dec ember 15, 1995, after an evidentiar y hearing , the trial court filed a memorandum denying the Appellant’ s petition. The Appellant arg ues that his constitutional right to t he effective assi stance of counsel wa s violat ed. In rev iewing an appellant’s Sixth Amendment claim of ineffective assi stance of counsel, this Court must determine w hether the adv ice given or servi ces rendered by the attorney

are wit hin the rangeof competency demanded of attorneys i n criminal cases. Baxter v. Rose , 523 S. W.2d 930, 936 (Tenn. 19 75). To prevail on a claim of ineff ective counsel, a petitioner “must show that coun sel’s representation fell be low an objective standard or reasonableness” and that this performance prejudi ced the defense. There must be a reasonableprobability that but3

for counsel’s e rror the result of the procee ding wou ld have been di fferent. Strickland v. Washington , 466 U.S. 668, 687 -88, 692, 694, 104 S .Ct. 2053, 2064, 206 7-68, 80 L.Ed. 674 (1984); Best v. Stat e , 708 S.W .2d 421, 422 (Tenn . Crim. App. 1985). The Appellant clai ms that his attor ney insufficient ly investigated hi s case by failing to i nterview

potential w itnesses. The ev idence in the record clearl y shows that the Appellant’s

attorney s ufficiently i nvestig ated this case. The Appellant’s attorney reviewed the State’s fil e and then sent an i nvestig ator to take st atements from the State’s key

witness es. She also i nvestig ated potential defense witnesses suggested by the Appell ant, but those w itnesses eit her were unavailabl e or did not co operate. Moreover , the Appellant fai led to introduc e the testimony of any wi tnesses at the postconviction hearing. W ithout such testimony, we are unable to review the Appellant’s claim that he was prejudiced

. See Wade v. State , 914 S. W.2d 97,102 (T enn. Cr im. App. 1995); Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App . 1990). The Appellant also

claims that hi s lawyer prejudic ed his defense by introducing police lineup photographs of the Appellant to the jury. The App ellant’s lawyer did intro duce thre e or f our p olice lineu p pho togra phs, but s he di d tha t to a ttem pt to prove that the State’s key witness had erroneously identif ied the Appellant as the robb er. Tactical deci sions, such as this one, are not subject to p ost-convi ction challe nges. Hellard v . State , 629 S.W .2d 4, 9 (Tenn. 1982 ). Moreover, all information on those pictures that

suggested that the Appella nt had committed pr ior crimes was delet ed. The Appellant has fail ed to show pr ejudice The Appellant nex

t claims that his trial attorney w as inefficient becaus e she failed to file a moti on to suppress a police repor t which al legedly

contained conflic

ting and erroneous info rmation. The Appellan t failed to introduce a cop y of the police report into t he record and, t herefore, we a re unable to review his claim that he was prejudiced. Finally , the Appellant a rgues that hi s counsel failed to advise him of his rig ht to seek second ti er appellate review to the Tennessee Supreme Court and that he4

should be gr

anted a delayed appeal. The State con cedes that this argument has merit and w e agree. After the Appellant ’s attorney completed her representation of the Appellant and was per mitted to wi thdraw, s he sent him a let ter advis ing him that she was withdraw ing and that i f he wanted to appeal he had three years to file a pe tition for post-convi ction reli ef. She did not adv ise him that he could file a petit ion asking for permission to appeal his cas e to the Tennessee Supreme Court. Rule 14 of the Rul es of the Supreme Cour t of the State of Tennessee requires attorneys w ithdrawi ng from further representation of in digent defendants to notify them in writing: (1) that couns el does not inte nd to file an Appli cation for Permi ssion to Appeal and that lea

ve of Court i s being soug ht to with draw; (2 ) that the defendant may file a pr o se Applicati on for Permissi on to Appeal w ith the Clerk of the Supr

eme Court if filed w ithin six ty (60) days after entr

y of final judgment i n the Court of Cr iminal Appeals ; (3) the date on which t he Court of Cri minal Appeals opi nion was r eleased; and (4) the date on which an Ap plication for P ermission to Appeal is due. Rule 14, Rul es of the Supreme Cour t of the State of Tennessee. Minimum compli ance with this rule i s necessary to protect defendants ’ due process ri ghts. Stat e v. Bro wn , 653 S.W.2d 765, 767 (Tenn. Crim. App . 1983). When a defendant is denied s econd tier appel late revi ew by no fault of his ow n, he is entit led to a delayed a ppeal. Pinkston v . State , 668 S.W.2d 676, 677 (Tenn. Crim. App

. 1984). The Appellant’s t rial counsel failed to notify the Appellant of hi s right t o seek second tier r

eview. Therefore, we grant the Appel lant the rig ht to seek a del ayed appeal from the Tennessee S upreme Court. Accordingl y, we vacate our judgment of February 16, 1994, and reinstate it as of the dat e of the release of thi s opinion.5 __________________________ WILLIAM M. BARKER, JUDG E CONCUR:

__________________________ JOSEPH M. TIPTON , JUDGE

__________________________ DAVID G. HA

YES, JUDG E