# FILED
October 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON SEPTEMBER 1996 SESSION

SHANNON L. SMITH, KEITH VE RSIE, ) AND MICHAEL L. WOFFORD, ) ) APPELLANTS, ) ) No. 02-C-01-9508-CR-0 0241 ) ) Shelby County v. ) ) W. Fred A xley, Judge ) ) (Extraordinary Appeal) STATE OF TENNESSEE, ) ) APPELLEE. )

FOR THE APPE LLANT: FOR THE APPELLEE: Richard B. Fields John Knox Walkup Attorney at Law Attorney General & Repor ter 699 Jefferson Avenue 500 Charlotte Avenue Memphis, TN 38105 Nashville, TN 37243-0497 George Kendricks Michael J. Fahey, II L. Song Richardson Assistant Attorney Gener al Attorneys at Law 450 James Robertson Parkwa y 99 Hudson Street, Suite 1601 Nashville, TN 37243-0493 New York, NY 10

013 William L. Gibbons Steven W. Hawkins District Attorney General Attorney at Law 201 Poplar Avenue, Suite 3-01 918 F Street, N.W., Suite 601 Memphis, TN 38103 Washington, DC 20004 John W. Campbell Assistant District A

ttorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILED:_______________________________
REVERSED AND REMAND ED FOR FURTHER PROC EEDINGS Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The issue this Court must r esolve in this extr

aordinary appeal is w

hether the trial court a bused its discretion by disqualifying couns

el in this post-convi ction proceed in g based upon a conflict of interest amongst the petitioners. Afte r a thorough review of the record, the briefs of the parties, and the law governin g the issue presented for review, it is the opinion of this Court the judg ment of the trial court should be reversed and this action remanded to the trial court for further proceedings consis tent with this opinion. On the evening of June 24, 1991, at approximat ely 9:12 p.m., three AfricanAmer ican males approa ched Terry

and Elizabeth Wilbanks and at tempted to rob

them. When the couple attempted to flee, Terry Wilbanks was s hot. He died as a result of this gunshotwound. Elizabeth Wilbanks was shot in the hip. She surviv

ed the gunshot wound. The petitioners were arrested at a fast food outlet approximately two blocks from the situs of the robbery. The petitioner s entered the following g uilty pleas pursuant to a

plea bargain agreement: 1.) Shannon

L. Smith : murder

in the pe rpetration of a robbery, confinem ent for l ife in the Department of Correction; e specially aggra

vated rob bery, confinement for twenty -fi ve (25) ye ars in the Departme nt of Cor rection; aggravated assault, confine ment fo r six ( 6 ) years in the Department of Co rrection; 2.) Keith Versie: murder in the perpetration of a robbery, confinement for life in the Departmentof Correction; especiall y aggravated rob bery, confinement for twenty -five (25) years in the Department of Co rrection; aggrav ated assault, confinement for six (6) years in the Department of Correctio n; and 3.) Michael A. Wofford: f acilitation to commit murder in the perpetratio n of a robbery, confine ment fo r twenty-fi ve (25) years in the Department of Correction; especially aggravated robbery, confinement for twenty-five (25) years in the De partment of Correction ; aggravat ed assault, confinement for six (6) years in the Depar tment of Correction. The petitioners filed a joint petition for post-conviction relief on April 20, 1995, in the Criminal Court for the Thirtieth Judicial Distric t. The pe tition al leged the ineffe ctive3

assistance of counsel and the entr ance of involuntary pleas of guilty. The state filed an answer on May 3, 1 995. On or a bout the 30th day of May, 1995, the state filed a pleading entitled “Motion to Remove Counsel Dueto Conflict of Interest.” The motion alleged that (a) W offord will be subject to a life sentence if his convictions are set aside, (b) counsel will use Wo fford to benefit Smith and Ve rsie , and (c) Wofford should be advised of the conseque nces of his actions in seeking

to set aside his convi ctions. Based upon these concepts , the state asserted there was a confli ct of interest between Smith and Versie on the one handand Wofford on the other hand. Both the state and the petitioners rely u po n the S ixth Amendment to the United States Constitution, Article I, § 9 of the Tenness ee Constitution, and the Code of Professional Conduct, Tenn. Sup. Ct. R. 8. On July 27, 1995, Alan E. Glenn, a former assistant district attorney and presently in the private practice of law, entered a limited appearance on behalf of Wofford. On this
same date, Mr. Glenn, a person of sterling character, advised the trialcourt he had talked to Wofford and Woffo rd’s mother regarding the proceedings pending before the trial court. He explaine d to Wofford th e potential for a conflict of interest and what may occur if his convictions

were set as ide. W offord advised Gl enn he wish ed to wa iv e any conflict of interest and proc

eed with the suit for pos t-conv iction relief w ith his tw o former codefendants. The trial court subsequently ent ered an order disqualify ing counsel of record from representing any of the petitioners. The order recites that Wof ford had waived any conflict of interest. However, the trial court ruled this waiver w as not binding upon the court. According to the trial court, w hether to permit the waiv er of a conflict of

interest rests within the sound discretion of the tri al court.

I.

Since the creation of the Post-Conv iction Act, the appellate cou rts of this jurisdiction have been unable to determine whether suits brought pursuan t to the Act are civil or criminal in nature. The courts have referred to such proceedings as “criminal,” “q ua s i-4

criminal,” and a “hybr

id affair.” In State v. Scales , 767 S.W.2d 157, 158 (Tenn. 1989), the issue before the supreme court was whether the waiver of the noti ce of appeal provision contained in Rule (4)(a), Tenn. R. App. P., cou ld be a pplied in a p ost-convi ction reli ef proceeding . The supreme court, stating “post-conv iction proceedings are criminal in nature,” hel d the waiver prov ision was applicable in post-conviction suits. In State v. Ron nie C. Styles , Cocke County No. 03-S -01-9108-CR-00067 (Tenn., Knoxville, January 25, 1993), Styles was indic ted for committing perjury in a post-conviction proceeding brought

by Ronald Cassity. The q uestion arose regarding the difference in the statute of lim itations betwee n criminal and civil c ases. The court said in ruling:

Neither party, a s defen se counsel has pointed out in th e defense brief, h ave been ab le to discover a case in this jurisdiction directly pointing out whe thera post-conviction proceeding is a civil matter or a criminal matter. We agree there has been a blur in the definition between civil and criminal cases h ea rd under the provisionsof the PostConviction Procedure Act. In this ju ri sdiction such pro ceedings have variously been refer red to as quasi civ

il or quasi criminal. In Mitchell v. State , 512 S.W.2d 661, 663 (Tenn. Crim. App. 1974), the Court of Criminal Appeals h eld a petition for habeas corpus and a post-conviction petition t o be pari causa when the relief and procedure authoriz ed by the Post-Convic tion Procedure Act appears adequate and appropr iate. We find the comment of the United States Suprem e Court in Smith v. Bennett , 365 U.S. 708, 81 S.Ct. 895, 897, 6 L.Ed.2d 39 (1961), to be relevant in this c

ase. In Smith the court said: “We shall not quibb le as to whether in this context it be called a civil o r criminal act. . . . The availabil ity of a p roce dure to regain liberty lost through criminal pro ce ss cannot be made contingent upon a choice of labels.” * * * * A post-conviction proceeding is a hybrid affair, invo lving an appeal from acriminal prosecution which is considered under civil rules of procedu re. * * * * The procedural cha racte ristics of the post-conv iction remedy should be appropriate to the pu rpose s of the remedy. While the post-conviction proc eeding is separate from the origi nal prosecution proceeding, the post-conv iction stage is an extension of the original proceeding and should be related to it insofar as feasible. Post-convictionreview has become an established part of

the criminal process. In form ulating a rule we reco gn ize that the5 post-convictionproceeding is procedurally separate and apart from the origi na l criminal prosecution.. . . It seeks not to convict, but to set

aside a conviction w

hich is void or

voidable because of the abridgement of constitutional rights. The base root of the proceeding is crimi nal. The post-con vict ion stage of a c riminal trial is an ex tension of the original proc eed ing

. The procedure by which a criminal convicti on may be set aside is civil in nature, therefore, it is tried under t he Rules of Civil Procedure and less string ent evidentiary rul es apply.
St yles , slip op. at 6-9. In Watkins v. State , 903 S.W.2d 302, 305 (Tenn. 1995), the supremecourt essentially a dopted the holding in Styleswithout making reference to the
case. The Tennessee Rules of Post-Convi ction Procedure, created by the supreme court, ad d another dimension to this dilemma. Section 3(B) states “[n]eith er the Tenness e e Rules of Civi l Proc edure nor the Tennessee Rules of Cr iminal Procedure apply to postconviction proceedings. . . .” While the supr

eme cour

t has mad e an effor

t to cla rify

the nature of post-conviction proceedings, the distinction remains bl urred. After stating in Styles and Watkins the proceedings are civil in natur e and are governed by the Rules of Civil Pr ocedure, t h e suprem e court has formulated a rule which states that neither the civil or criminal r ule s apply in these p roceedin gs unless s pecific ally design ated by a particular provis ion of the rules. Tenn. Sup. Ct. R. 28 § 3(B).

II.

It has long been established tha t the right to counsel pr ovision s e mbodied in the Sixth Amendment to the United States Constitution an d Artic le I, § 9 of the Tennessee Constitution extend through the first appeal as of right. Pennsylvania v. Finley , 481 U.S. 551, 554-55, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539, 545-46 (1987); House v. State , 911 S. W.2d 7 05, 712-13 (Tenn. 1995), cert

. denied , ____ U.S. ____, 116 S.Ct. 1685, 134 L.Ed.2d 787 (1996). In other wor ds, there i s no constitutional right to the assistance of counsel in p ost- conviction proceedings. Carruthers v. State , 814 S.W.2d 64, 69 (Tenn. Crim. A pp.), per . app . denied (Tenn. 1991). As the supreme cour t said in House , “th e federal consti tuti on does not require that sta tes provide an attorney to an indigent post-6

conviction petitioner.. . .” 911 S.W.2d at 712. The petitioner in a pos t- conviction proceeding has a statutory rig ht to the appointmentof counsel when the petit ion allege s a colorable claim that has not been waived, previously determi ned, or barred by the statute of limitations. Tenn. Code Ann. § 40-30-207(b)(1) (former ly Te nn. Code Ann. § 40-30-107). The supreme court has a lso provided for the appointment of counsel in post-conviction cases. Tenn. Sup . Ct. R. 13 § 1. The appellate courts of this state have zeal ously guar

ded a petitioner’s rig ht to counsel in post-conviction cases. See , e.g ., Allen v. State , 854 S.W.2d 873, 876 (Tenn. 1993); Swanson v. State , 749 S.W.2d 731, 734-35 (Tenn. 1988); Martucci v. State , 872 S.W.2d 947, 948 (Tenn. Crim. App. 1993); State v. Clark , 774 S.W.2d 634, 63 6 (Tenn. Cri m. App. 1989); State v. Mullins , 767 S.W.2d 668, 67 0 (Tenn. Crim. App. 1988), per . app . denied (Tenn. 1989); Childress v . State , 69 5 S.W.2d 541, 543 (Tenn. Crim. App. 1985); Mayes v. State , 671 S.W.2d 857, 859 (Ten n. Crim. App. 1984); Haynes v. State , 637 S.W.2d 467, 468 (Te nn. Crim. App. 1982). The number of unreported cases which have reversed the

trial court for the failure to appoint counsel are legion. In State v. Butler , 670 S.W.2d 241, 243 (Tenn . Crim. App.), per . app . denied (Tenn. 1984), this Court said “the assistance of counsel is nece ssary to aid both the petitioner and the courts in bringing this matter to a proper conclusion.”

III.

The precise question this Court must resolve is whether (a) the petitioner is entitled to be represented by priv ate counsel of his or her choice, (b) there is a conflict of interest in this case, and, if so, whether (c) thepetitioner has a right to waive a conflict of interest created by joint representati on. The app ellate cour ts of this state have not addre ssed these issues. A petit ioner in a post-conviction actio n has a qualified right t o be represented by retained private counsel of his or her

choice. For instance, retained private counsel must be licensed to practice law in Tennes see and be in good standing w ith the appropriate1 When a member of this panel asked the attorn ey arguing the merits of the

petitioners’ case if evidence had been pres ented regarding Wofford’s desire to wa ive any potential or actual conflict of interes t that might exist, cou nsel stated evidence had been presented at the hearing. The record,as previously noted,does not contain evidence of this fact. The statements of counsel do not constitute evidence. See Delk v. State , 590 S.W.2d 435, 440 (Tenn. 1979); State v. Dykes , 803 S.W.2d 250, 255 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). 7 agenc ies. Counsel licensed in another state may represent the peti tioner if coun se l complies with the pro hac vice requirements contained in the Supreme Court Rules. Of course, there are numerous other factors that could affect this qual ified right. In this case, the facts do not create a conflict of interes t. All three petitioners were convicted for engaging in the same criminal conduct after they entered their respecti ve pleas of guilty. The gr

ounds raised in the petition are common to all three petitioner s. If each petitioner was gr

anted a separate evidentiar y hear ing, or each granted a s eparate lawyer, the same evidence would be adduced at each heari ng or by each lawy er. In short, whether or notthere may be disparity in sentencing if the petitioners are gr anted a new trial and are convicted does not cr eate a conflict of int erest in this proceeding. However, separate counsel may be req uired to represent the petiti oners if a new trial i s granted. Assumin g arguendo t here is a conflict of interest based upon multiple representati on in a post-conviction acti on, the parties should be given the oppor tunity to waive the conflict in order to be represented by the same lawyer. Here, the state alleged Michael Woff ord presented a conflict of interest, and pri vate counsel should be barred f rom representing any of the petitioners. Separate coun sel conferred with Woffor d and his mo ther and announced to the trial court Wofford understood the p ossibilit y of a conflict of interest. However, he was willing to waive the conflict

to be represented by pri vate counsel filing the petitio n on his behalf. The statements of counsel are insufficient , as a matter of law, to consti tute a waiver of a potential conflict of interest

. 1 The petitione r mu st be present in open court. The parties and the trial court should explain to the petitioner how an actual or potential conflict mayaffect him and that the petitioner has a right to be represented by separate counsel. The petitioner must be question ed under oath by the parties and the trial court to deter mine if the petitioner understands the ac tual or potential conflict. The petitioner must state under oath whether he desires to w aive the actual or potenti al conflict. If the petitioner states he8

is willing to w

aive any actual or pot

ential conflict of

interest, the trial cour

t shall permit the petitioner

to be repr esented by private c ounsel a bsent a co mpelling reason to the cont rary. In short, a trial

court s hould no

t overr ule the i nfo rmed decision of the petitioner w ho knowingly

and intelligently w

aives either a potenti al o r actual conflict of interest,decides to be represented by his r etained counsel of choi ce, and ag rees to accept the consequencesof his decision. See State v. Parrott , 919 S.W.2d 60, 62 (Tenn. Crim. App. 1995). While Tenn. R. Crim. P. 44(c) is notapplicable in post-conviction actions, the rule
servesas a guideline as to how a trial court should pr

oceed when aparty asserts or it is readilyrecognized that an actua l or potential conf lict of interest may exist. Such a procedure will preserve the right to counsel in post-convi ction actions prescribed by statute and rule. This cause is remanded to the trial court for further proceedings consi stent with this opinion.

_______________ ______________________ ______ _ JOE B. JONES, PRESIDIN G JUDGE

CONCUR:

______________________________________ DAVID H. WELLES, JUDGE

______________________________________ JERRY L.SMITH, JUDGE