### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Novem ber 19, 200 3 Session

STEVE EDWARD LEACH v. STATE O F TENNESSEE
Appeal from the Criminal Court for Smith County No. 95-74 James O. Bond, Judge

No. M2002-02194-CCA-R3-PC - Filed October 1, 2004

The petitioner, Steve Edward Lea ch, entered pleas of guilt to first degre e murder and rape of a child. The trial court imposed consecutive sentenc es of life imprisonme

nt without t

he possibi lity

of parol e and 25 years, r

espectively. The

re was no direct appeal of t he conviction or sentence. La ter, the petitioner was denied his application for post-conviction relief. This court affirmed. Steven Edward Leach v. State , No. M1999- 00774-CCA-R3-PC (Tenn. Crim. App., at Nashville, Feb. 16, 2001). Counsel for the p etitioner

failed to make a timely

applica tion for p ermission

to appea l to the supre

me court and our su

preme court denied a

request to waive the 60-day period of limitation as prescribed by Tennessee

Rule of Appellate Procedure 11. By motion, the petitioner then applied for relief i n th e post-convi ction court. The post-conviction court found that the petitioner was not at fault for failing to timely file a Rule 11 application but denied re lief based upon lack of jurisdiction. In thi s appeal, the petitioner has asked this court to vacate and re-e nter its judgment filed February 16, 2001, inCause No. M1999-00 774-CCA- R3-PC. Be cause ou r suprem e court has ruled under similar circumstances that the petitioner was not entitled to the effective assistance of counsel and wa s not denied due process of law, the judgment is aff irmed.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

G ARY R. W ADE , P.J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and N ORMA M C G EE O GLE , JJ., joined.

Frank Lann om (on app eal) and Zach Griffith (at trial), Lebanon, Tennessee, for the appellant, Steve Edward Leac

h.

Paul G. Summers, Attorney Gene ral & Reporter; Kim R. Helper, Assistant Attorney General; and Tom P. Thompson, District Attorney Genera l, for the appellee, State of Tennessee.

OPINION

OnNovember 19, 1995, the petitioner was indicted for first degree murde r, felony murder , two count s of rape of a child, and attempted rape of a child. On September 4, 1996, the petitioner-2-

entered into aplea agreement with the state wher eby he pled g

uilty to one count each of

first degree murder and rape of a chil d. The tri al c ourt imposed a s entence of life without the possibility of parole for the murder to be served consecutively to a twenty-five -year

sent ence for

the rape of a child.

In Steven Ed

ward L each v. State , No. M1999-0 077 4-CCA-R3-PC (Tenn. Crim. App., at Nashville, Feb. 16, 2001), this court affirmed the denial of post-conviction re lief. However, counsel for th e petitioner failed to file a timely application for permission to appeal to the supreme court

. Further, counsel failed to withdraw as provided by Tennessee Supreme Court Rule 14. On April 15, 2002, the petitioner filed a motion for

relief, asking the post-conviction court to make a fa ctual finding that his appointed counsel had failed to either timely file an app lication for per mission to appeal the decision of this court to our supreme court or properly obtain permission to withdraw as required by rule. The post-c onviction judge determined that while it was without jurisdict i on to vacate or reinstate the opinion of the court of criminal appeals, the pet itioner' s counsel was responsible for the procedural mishap.

The petitioner has again appealed, asking this court to withdraw and re-enter its affirmance of the denial of post-conviction relief. In response , the state first insists thatbecause the judgment entered by the post-con

vic tion court was merely

a factual finding, it could not be appealed unde r Tennessee Rule of Appellate Procedure 3(b), which provides for an "appeal as of right fr

om an order denying or revoking probation, and from a fi nal judgmen

t in a crim

inal cont empt, hab eas cor

pus, extradition, or post-c onviction procee ding." In the

alterna tive, the st ate argu es that the court of criminal appeals does not have authority to vac ate and re-enter its own opinion. I t argues that

to do

so would dire ctly

contrad ict the te rms of the

Post-Convic

tio n Pr ocedure Act of 1995, citing as authority an order entered in State v. Stella Rodifer , No. E200 1-00034- CCA-R3-CD(Tenn. Cr im. App., at K nox vi ll e, M ar. 14, 200 3). It is the position of

the state that State v. Pinkston , 668 S.W.2d 676 (Tenn. Crim. App. 1984), does not extend the remedy of a delayed a ppeal to second-tier review of the denia l of post-c onviction

relief. Its r

ationale is that by granti ng a de layed appe al in a pos tconvictioncase, this court would be granting re lief for ineffective assistance of post-convict ion counsel, a non-exis tent entit lement under eith er the sta te or fe deral constitutions . The state cites David Stov all v. State , No. M1999-00937-CCA-R3-PC (Tenn. Crim. App., at Nashville, Dec. 29, 1999), for the proposition that the p etitioner

is notentitled t

o the eff ective a ssistance

of counse l in a post-conviction proceeding.

In Anthony

Jerome Stok

es v. State , No. E2002-02597-CCA-R3- PC (Te nn. Crim. App., at Knoxville, July 7, 2003), perm. to appeal granted (Tenn. Dec. 22, 2003), a p anel of this court rejected the same argument made by the state in th is case. As in this in stance, Stokes' s postconvictioncounsel had failed to either timely file an application for permission to appeal to the supreme cour t or wit hdraw as counsel as provided by rule. After our supreme court denied the petit ioner 's mot ion to file a delaye d application for permission to appeal, the petitioner filed a "petition for enforcement of agr

eement," which he amended to request a writ of error coram nobis and a reopening of his petition for post-conv iction relief. The post-conviction court denied relief based upon lack

of jurisdi ction. An

appeal r esulted in a reman d for an e

videntia ry hearing to-3-

determine whether there had been a violation of the petitioner's due process rights. See Anthony Jerome Stok

es v. State , No. E2000-03232-CCA-R3-PC (Tenn. Crim. App., at Knoxville, Oct. 15, 2001). On remand, the trial court conducted an evidentiary hearing and concluded that the petitioner

was free from any

fault for his counsel's failure to take approp riate action after the entry of the opinion by

the cour t of crimi nal appe als. Upon review, this court vacated and reinstated its initial opinion affirmi

ng the d enial of post-con viction re lief, fin

ding tha t the petit ioner ha d been c aught in

a "procedural

trap" and denied due process. See Anthony Jerome Stok

es v. State , No. E2002-02597- CCA-R3-PC (Tenn. Crim. App., at Knoxville, July 7, 2003). In Anthony Jero me Stokes v. Sta te ,

___ S.W.3d ___, No. E2002-02597-SC-R11-PC, filed Septembe r 23, 2004 , howeve

r, our supreme
cour t ruled that Stokes was not entitled to the effective assistance of counsel in post-conviction procee dings and

held that because Stokes received a full evidentiar y hearing and first tier review

on his petition for post-conviction relief, there was no due process violation.

Our supreme court, which had not previously addressed the issue presented, acknowledged that there is a statutory r

ight to counsel in a post-conviction proceeding, see Tenn. Code Ann. § 40- 30-107(b)(1) (2003), b

ut the rig ht to the e ffectiv e assista

nce of c ounsel ap

plies only through the first appeal as of

right. See House v. St

ate , 911 S.W.2d 705, 712 (Tenn. 1995). In Stokes , the high court held that "[i]f a

claim of i

neffec tive assis tance of

post-con victi on couns el does not establish an

excuse for a defendant's failure to raise an issue, it similarly cannot provide an e xcuse for a defendan t's failu re to timel y file a Rule 11 appl ication." Stokes , slip op. at 5. Our high court observed that in the post-conviction setting, constitutional due proc ess requires nothing more than the "opportunity to be hea rd at a meaningful time" and in a mea ning ful way. Id. , s lip op. at 6 (quoting House , 911 S.W.2d at 711). Th e opinion by our supreme c ourt in Stokes is controlling

au th or it y. Accordingly , the judgment of the trial court deny ing relief is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE