### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE November 27, 2001 Sessi on ROGER H ARRIS v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Unicoi County

No. 4280 Lynn W. Brown, Judge

No. E2 001-0 0782- CCA-R3 -PC August 22, 2002 Petitioner appeals the trial court’s denial of post-conviction relief . On appeal , petitioner alleges (1) ineffe cti ve ass istance of trial counsel, (2) ineffective a ssistance of appellate counsel, (3) he was unconstitutionally denied bail, and (4) the indictment a gainst him for first degree murde r was unconstit

utio nally amended. We g rant petitioner a delayed appeal, and we stay further procee dings on

his remaining pos t-conviction claim s. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed in Part;

Delayed Appeal Granted; and Post-Conviction Appeal Stayed J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which J OSEP H M. T IPTON an d A LAN E. G LENN , JJ., joined. Kenneth F. I rvine, Jr. , Knoxville, Tenness ee, for the appe llant, Rog er Harr

is. Paul G. Summers, A ttor ney Gene ral and Reporter; Kathy D. Aslinger, Assistant Attorney Genera l; Joe C. Crumley, Jr., District Attorney General; and Kenneth C. Baldwin, Assi stant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION On June 27, 199 1, peti t ioner Roger Harris was convicted of first degree murder and reckle ss endangerment with a deadly weapon. The convictions were affirme d on d irect ap peal. Statev. Harr

is , No . 03 C0 1–9 201 -CR -19 , 19 92 W L 171368 (Tenn . Crim. App., filed July 23, 199 2, at Knoxville) . No Rule 11 applica tion for p ermission

to appea l to the Te

nnessee Supreme Courtwas filed. On Mar ch 15, 1995, petitioner filed a pro se petition for post-conviction relief. The public def

ender’s off

ice was a ppointed t

o repre sent him, a

nd two ame

ndments we

re filed to the original petition. The State fi led a motion to dismiss a nd answe r on Aug ust 19, 199 6. Both the State and petitioner concede that this case has been c ontin ued numerous times for various reasons . On Septembe

r 22, 1997 , new cou

nse l fo r petitioner filed an entry of appearance in the case after being retained by

petitioner’s family. On

Septe mber 29, 1997, Judge Ly nn W. Brown-2-

wrote to new counse l inf

orming him that the public defender was still counsel of recor d for petitioner. The trial court st ated tha t he would

allow subs titution if n

ew couns el was pr

epared to go forwar d with the e

videntia ry hearin g set f

or October 17, 1997. At that hearing, the trial cour t ordered that the su

bsti tution of co unsel could occur if petitioner’s family would reimburse the public defender in the amount of $500.00. This Co urt subsequently order ed that the trial court could not require petitioner’s family to pay $500 .00 to the public defender’s office. Harris v. State , No. 03C0 1-9712-CR-00516, 1999 WL 39503, at *2 (Tenn. Crim. App., filed Jan. 28, 1999, at Knoxv ille). Following this decision, the trial court allowed new counsel to be substituted. On August 19, 1999, petitioner, through his new counsel, filed an a mended pet ition fo r post-convi ction r elief alleging that he suffe red ineffective assistance of counse l at trial and on appeal. The trial court dismissed the petition for failure to verify t he petition by oath or affirmation. On July 28, 2000, t his Co urt reversed the trial court’s dismissal of petitioner’s petition. Harris v . State , No. E199 9-02056- CCA -R3-P C, 2000 WL 10381221 (Tenn. Crim. App., filed July 28, 2000, at Knoxville). Following this Court’s remand, the State f iled an answer to th e peti tion on Ja nuary 5, 2 001. T he tri al cou rt con ducte d an ev ident iary heari ng o n March5, 2001. Th e trial cour t ultimately denied petitioner relief . A timely notice of appe al followed on March 30, 2001. Facts Becau se we have concluded that the petition er is enti

tled to a d

elay ed appe al, we lim

it our recitat ion of fa cts to those

perti nent to tha t holding. Trial counsel represented petitioner on direct appeal. At the post

-convic ti o n hearin g, petit ioner te stified th at after

this Court r

ejecte d his direct appeal, trial counsel came to see him in the jail and told hi m that the n ext step was t

o file an appeal with the Tennessee Supreme Court. I f that was unsuccessful, trial counsel said that he would file a petition for post-conviction relief. However, petitioner state d that trial counsel n ever filed an appeal to the Tennessee Supreme Court and neve r informed petitioner that he was not going to file an appeal t o the Ten nessee Su preme Cou

rt. Trial counsel t

estified that he ha

d been pr

acticing la w for thirty-two y

ears and that at least 95% of h is practice was criminal defense. He state d that during that time he had been counsel in excess of fifty homicide ca s es. Due to th e lapse of time between petitioner’s trial and the post- conviction hearing, trial counsel had limited recollection about the c ase and stated that he was unable to find his file from pe titioner’ s c ase. Notwithstanding, trial counsel testified about his general course of pract ice. T rial counsel stated that he m et with pe titioner a t Northea st Correctional Center a

fter thisCourt den

ied petiti oner relie f on direc t appeal . Althoug h he could notrecall t

he substa nce of th e conve rsation, trial cou

nsel maint

ained tha t i f he pro mised to fi le an appeal with the Te

nnessee Supreme C ourt, he w ould have done so. H e reaso ned that b ecause he never filed an appeal with the Supreme Court, he must not have pr omised to do so.-3- Analysis Petitioner complains that appellate counsel fa iled in his representation of petitioner on appea l for various reasons, among them is petitioner’s claim that counse l was deficient for failing to appeal to the Tennessee Supreme Court. Therefore, we must first determine whether a delayed appe al to the T ennesse e Supreme Court is ap

propria te relief becau se such r

elief would preclude this Court from addressing the merits of the petitioner’s post-conviction appeal. See Tenn. Sup. Ct. R. 28 § 9(D). Petitioner submits that he is entitled to a delayed appe al because trial cou ns el did not properl y comply with Rule 14 of the Tenness ee Supreme Court Rules regarding withdrawal of an attorney of a

n indigent client. However, the record r eflects that trial counsel wa s retained by the petitioner’s family, and the re was no finding of i ndigen cy for the purposes of representation during trial or on direct appea l. Nonetheless, we conclude that the d

ispositive issue in thi s case is not whether counsel was retained or appointed but whethe r the petitioner was no tified by counsel t hat no app eal would

be soug ht. We acknowl edge th at State v. Brown , 6 53 S.W.2d 765, 767 (Tenn. Crim. App. 1983), and its p roge ny provide for a delayed a

ppeal based upon Supreme Court Rule 14, which expressly refers to indigent petition ers. Howeve r, this Cour

t reiter ated, pos t- Brown , that a dela yed appeal should also be granted where the petitioner is denied the opportunity to pursue a n appeal in the Tennessee Supreme Court thro ugh no f ault o f his own. See Pinkston v. S tate , 668 S.W.2d 676 , 677 (Tenn . Cri m. App . 1984 ) (cit ing Moultrie v . State , 542 S.W.2d 835, 838 (Tenn. Crim. App. 1976)). As we ori ginall y recog

nized in Moultrie v . State , the “uni lateral terminat ion of an a

ppeal, withoutconfirmation from the client, . . . depriv es the defendant in a criminal case

of his rig ht to e ffective assistance of counsel.” 542 S.W.2d at 838. In Moultrie , retained counsel “failed to fi l e a petit ion fo r certi orari despi te the clear u nders tandi ng with his cl ient that this action would be taken.” 542 S.W.2d 835, 838 (Tenn. Crim. App. 1976). This Court recognized that “in doing so, [counsel had] unilaterally terminated the de fendant’s appeal without notice and thus de prived his client o f the opportunity to secure substitute counsel.” Id. Likewise, the instant petitioner’s direct a ppeal wa s unilater

ally terminat ed follow ing fir st-tier r

eview by this Court. Petitioner testified that trial counsel promised pe ti tioner tha t trial counsel would appea l to the Tennessee Supreme Court. Trial counsel did not have any recollection regarding

this matter buts ta ted that if he promised petitioner that he would appeal, then he would have a ppealed. Ho wever , trial counsel did not testify that he had notified pe titioner that no appeal would be sought. Theref

ore, it a ppears t hat although noth

ing wasp romised t o petitioner, petitioner was still never notified by

counsel t hat he did not intend

to file an appeal. As such, we conclude that any potential appeal following first-tier review wa s termina ted through no fault of petitioner. As we stated, in

fra, the “unilate ral termination of a direct appea l followin g first- tier rev

iew entit les a prospective appellant to relief in the form of a delay ed appeal.” Pinkston v. State , 668 S.W.2d 676, 677 ( Tenn. Crim. App. 198 4). Acc ordingl y, t he petitio ner is en

titled to a delay ed appe al.-4- CONCLUSION We conclude that the petitioner was unilaterally deprived of hi s r ight to seek review by the Tenness ee Supre

me Court pu

rsuant to Ru le 11, T.R. A.P. Accordingly , we grant the petitioner a delayed appeal to seek Rule 11 review. Pursuant to Tennessee Supr e me Court Ru le 28 § 9 (D), th e petitioner’s post-conviction proceedings are stayed pending

the final deposition of the delaye d appeal to seek such review.

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### JOH N EVER ETT WIL LI AMS, JUD GE