IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 2, 2003

JOSEPH BROWN v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-24735 W. Fred Axley, Judge

No. W2002-03014-CCA-R3-PC - Filed February 11, 2004

The petitioner, Joseph Brown, appeals pro se the denial of his petition for post-conviction relief from

his convictions for facilitation of first degree murder and two counts of especially aggravated

kidnapping. He argues that the trial court’s failure to advise him of his constitutional right against

self-incrimination voids his guilty pleas and that the court’s failure to provide him with a transcript

of the post-conviction hearing violated his constitutional rights. Additionally, he argues that the

record does not reflect that counsel who represented him at the post-conviction hearing was relieved

from continuing to represent him on appeal, and that he is entitled to counsel in his appeal to this

court. We agree that the petitioner is entitled to be represented by counsel in the first tier appeal of

the denial of his post-conviction petition and, accordingly, dismiss the appeal and remand to the

post-conviction court with instructions to reenter its findings of fact and conclusions of law, with

the petitioner’s time for appeal to start at the date of reentry, and the petitioner to be represented by

counsel on appeal.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed and Remanded

ALAN E. GLENN, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and

ROBERT W. WEDEMEYER, JJ., joined.

Joseph Brown, Hardeman County Correctional Facility, Whiteville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Reginald Henderson, Assistant District Attorney

General, for the appellee, State of Tennessee. 

OPINION

The petitioner pled guilty on February 28, 2000, to facilitation of first degree murder and two

counts of especially aggravated kidnapping, all Class A felonies. He was sentenced as a Range I,

standard offender to fifteen years for the facilitation of first degree murder conviction and as a

violent offender to fifteen years for each of the especially aggravated kidnapping convictions, all to
We note that the petition was notarized on February 19, 2001, and that, according to the petitioner’s 1

certification, he mailed a copy to the Shelby County District Attorney General on February 20, 2001.

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be served concurrently, for an effective fifteen-year sentence. No direct appeal of the petitioner’s

convictions was taken. 

On March 1, 2001, the petitioner filed a pro se petition for post-conviction relief, counsel

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was subsequently appointed, and an amended petition was filed on May 23, 2002. In his petitions,

the petitioner alleged that he was denied the effective assistance of trial counsel and that his guilty

pleas were not voluntarily, knowingly, and understandingly entered. 

Apparently, a hearing was held on the post-conviction petition for the post-conviction court’s

order of November 26, 2002, denying the petition, referred to certain pages from the transcript of the

hearing. The petitioner prepared a pro se notice of appeal, which bears the date of November 27,

2002, in the certificate of service and December 11, 2002, as the filing date. In his pro se appellate

brief, in addition to his claims that trial counsel was ineffective, he complains about the fact that he

is not represented by counsel on appeal, saying that the record contains no order releasing appointed

counsel who represented him at the post-conviction hearing from continuing to do so. In our review,

we first will consider the petitioner’s claim that he is entitled to be represented by counsel. With this

claim, we agree. Since the petitioner had no choice but to proceed pro se, as he did, or relinquish

his right to appeal, we must remand this matter to the post-conviction court so that counsel can be

appointed for the petitioner, assuming that previous counsel was relieved, and a notice of appeal can

then be refiled.

It is without question that the petitioner has a statutory right to be represented by counsel in

the first tier appeal of his post-conviction petition, as we will explain. Tennessee Supreme Court

Rule 28, section 10(A) provides that “[a]n appeal from the dismissal or denial of a post-conviction

petition shall be in accordance with the Tennessee Rules of Appellate Procedure.” In turn, Rule

18(a) of the Tennessee Rules of Appellate Procedure provides:

A party who has been permitted to proceed in an action in the trial

court as a poor person (which includes a person who has been

permitted to proceed there as one who is financially unable to obtain

adequate defense in a criminal case) may proceed on appeal as a poor

person unless, before or after the appeal is taken, the trial court finds

the party is not entitled so to proceed, in which event the trial court

shall state in writing the reasons for such finding.

Tennessee Code Annotated section 40-30-215 provides that “[i]ndigency shall be determined

and counsel and court reporters appointed and reimbursed as now provided for criminal and habeas

corpus cases by chapter 14, parts 2 and 3 of this title.” Tennessee Code Annotated section40-14-203

requires that an attorney appointed to represent an indigent defendant must continue to do so

“through the initial appellate review,” and section 40-14-205 provides that if the appointed attorney
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is allowed to withdraw “upon good cause shown, . . . the court shall . . . immediately appoint another

attorney in the former attorney’s place.” In Drummer v. State, 6 S.W.3d 520, 523 (Tenn. Crim. App.

1999), we concluded that these statutes and rules, taken together, entitle a post-conviction petitioner

“to counsel on the direct appeal from the denial of [the] first petition for post-conviction relief.”

The record on appeal contains neither an explanation as to why counsel who represented the

petitioner before the post-conviction court is no longer representing him nor a determination that the

petitioner no longer is indigent. The petitioner, who is now proceeding pro se in this matter, is

entitled to be represented by counsel, as he has requested. Accordingly, we vacate the order of the

post-conviction court denying the petition for post-conviction relief and direct that counsel be

appointed for the petitioner and that the court reenter its order denying post-conviction relief, with

the time for the petitioner’s appeal beginning to run from the time of the reentry of the order.

CONCLUSION

Based upon the foregoing authorities and reasoning, we vacate the order of the postconviction court denying the petition and remand for proceedings consistent with this opinion.

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ALAN E. GLENN, JUDGE