IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 6, 2008

BERNARD HENRY v. STATE OF TENNESSEE

 Appeal from the Criminal Court for Shelby County

No. 02-05634 W. Fred Axley, Judge

No. W2007-00679-CCA-R3-PC - Filed July 25, 2008

The Petitioner, Bernard Henry, appeals from the Shelby County Criminal Court’s order dismissing

his petition for post-conviction relief. He argues that the dismissal was erroneous because he did

not receive the effective assistance oftrial counsel and because the post-conviction court improperly

prevented him from presenting evidence that his appellate counsel was ineffective. After a review

of the record, we conclude that the post-conviction court erred in denying the Petitioner an

opportunity to be heard on his claim of ineffective assistance of appellate counsel. Accordingly, the

case is remanded for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;

Remanded

DAVID H. WELLES,J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., J.,

and DAVID G. HAYES, SR. J., joined.

Jason Poyner, Memphis, Tennessee, for the appellant, Bernard Henry.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Tom Hoover, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

A Shelby County jury convicted the Petitioner of two counts of aggravated child abuse and

neglect, a Class A felony. See Tenn. Code Ann. § 39-15-402. The trial court sentenced him to

concurrent sentences of twenty-five years as a violent offender. On direct appeal, this Court

affirmed his convictions but modified the length of his sentences to twenty years. See State v.

Bernard J. Henry, No. W2003-03045-CCA-R3-CD, 2004 WL 2848382 (Tenn. Crim. App., Jackson,

Dec. 9, 2004), perm. to appeal denied, (Tenn. Mar. 28, 2005).
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On May 20, 2005, the Petitioner, pro se, filed a petition for post-conviction relief, which was

amended following the appointment of counsel. The Petitioner sought relief on the basis that trial

and appellate counsel rendered ineffective assistance. 

A hearing was held on the petition on October 5, 2006, at which the Petitioner and trial

counsel testified. The Petitioner then attempted to call appellate counsel as a witness. The State

objected, and the following colloquy occurred:

[POST-CONVICTION COUNSEL]: Essentially, that’s our proof as far as

the, [trial counsel] goes. Now, he is represented on appeal by Mr. Brayton. And, that

was the other issue that I was talking [sic].

[THE STATE]: Judge, do I have, does [p]ost[-c]onviction cover appellate

counsel?

THE COURT: No.

[THE STATE]: I didn’t think so. So, I would object to any further proof

along that line.

[POST-CONVICTION COUNSEL]: All right. I get a rule [sic] on it today?

THE COURT: No, but you can raise that issue on appeal, if there is a need

for appeal, that you were prevented in calling the appellate lawyer. You may make

new law. I’m serious. 

The post-conviction court then denied relief by written order on February 23, 2007,

concluding that the Petitioner did not prove that he received the ineffective assistance of counsel.

This appeal followed.

ANALYSIS

The Petitioner now appeals to this Court, arguing that (1) the trial counsel’s performance was

constitutionally inadequate and (2) the post-conviction court erred in preventing him from offering

proof of appellate counsel’s ineffectiveness. The State concedes error regarding denial of the

Petitioner’s right to be heard on claims of ineffective assistance of appellate counsel, and we agree.

In Carpenter v. State, 126 S.W.3d 879 (Tenn. 2004), our supreme court held that the same

test that applied to claims ofineffective assistance oftrial counsel under the federal constitution, also

applied to determine whether appellate counsel was constitutionally effective: “To determine

whether appellate counsel was constitutionally effective, we use the two-prong test set forth in

Strickland v. Washington, 466 U.S. 668 (1984)—the same test that is applied to claims of ineffective

assistance of trial counsel asserted under the Sixth Amendment to the United States Constitution.”

Carpenter, 126 S.W.3d at 886; see also Smith v. Murray, 477 U.S. 527, 535-36 (1986) (applying

Strickland to a claim of attorney error on appeal).
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Although the issue of trial counsel’s performance has been determined by the post-conviction

court, the Petitioner properly raised the claim of ineffective assistance of appellate counsel in his

petition and is entitled to have it considered by and determined by the post-conviction court. See

Laraiel Winton v. State, No. E2006-02392-CCA-R3-PC, 2007 WL 2438112, at *1(Tenn. Crim.

App., Knoxville, Aug. 29, 2007). Considerations of judicial economy and the avoiding of piecemeal

appeals mandate that we remand this case to the post-conviction court. The Petitioner has had no

opportunity to raise the issue of ineffective assistance of appellate counsel, and he is entitled to

present proof on the merits of this claim. After the post-conviction court considers and rules on the

merits of the Petitioner’s claim of ineffective assistance of appellate counsel, appellate review of the

post-conviction court’s rulings on the ineffective assistance of trial and appellate counsel may

proceed anew in accordance with the Tennessee Rules of Appellate Procedure.

CONCLUSION 

Based upon the foregoing rationale, the order of the post-conviction court dismissing the

petition is vacated. The case is remanded for further proceedings consistent with this opinion.

 

______________________________

DAVID H. WELLES, JUDGE