### IN THE SUPREME COURT OF TENNESS EE AT NASHVILLE October 1, 2003 Se ssion

DONALD WALLA CE v. STATE OF T ENNESSEE

An Appeal by P ermis sion from the Court

of Crimi nal Appeals Circuit Court for Stewart County No. 4-769-CR-96 Robert E. Burch, Judge

No. M2001-02722-SC-R11-PC - F iled December 23, 2003

We granted this appeal to determine w heth er the tr

ial cour t proper ly g ranted t he defe ndant post

convictionrelief in the form of a delay ed direct appeal

on the g round tha t counsel ’s failur

e to file a motion for new

trial re sulted in th e waive r of all issues on direct appeal except for sufficiency

of the evidence. The Court of Criminal Appeals dismissed the appeal after concluding that the trial court lacked the statutory authority

to grant a delay

ed appeal and

that the defendant had

not suffered any prejudice from cou

nsel’s pe rforman ce. Afte r reviewi ng the record and applicable a uthority, we conclude that the trial court properly granted a delay

ed appeal based upon ineffective assistance of counsel. We there fore re verse th e Court of

Crimin al Appea ls, affirm the trial court’s grant of a delayed appeal, and remand to the Court of Criminal Appeals for review of the issues presented by the defe ndant’s motion for

a new tri al.

Tenn. R. App. P. 11 Appe al by Per mission; Judgment of the Cour

t of Crim inal Appeals Revers ed; Case

Remande d to the Co urt of Crim inal Appeals

E. R IL EY ANDERSON , J., delivered the opinion of the court, in which F RANK F. D ROWOT A , III, C.J., and A DOLPHO A. B IRCH , J R ., J ANICE M. H OLDER , and W IL LI AM M. B ARKER , JJ., joined.

Richard McGee and

James O. Martin, II I, Nashville, Tennessee, for the Appellant, Donald Wallace.

Michael E. Moore, Solicitor General; David H. F in dl ey, Assistant Attorney Gene ral; Dan Alsobroo ks, District A

ttorney Genera l; and Robert S. Wilson, Assistant District A ttorney Genera l, for the Appellee, State of Tennessee.1 For a det ail ed reci tat ion of th e subst anti ve fact s in t his ca se, r eferto State v. Wallace , No. 01C01- 9711- CC005 26, 1 998 W L 67 062 7 (T enn. C rim. A pp. S ept. 3 0, 19 98) , the de fenda nt’s initial direc t app eal.

2 State v. Burkhart , 541 S.W .2d 365, 371 (Tenn. 1976 ) (holding tha t a de fen dant may not proceed pro se when simultaneousl y represented by counsel).

3 Th ough the de fenda nt’s first pro se motion f or a new trial and the mot ion for a new tr ial fil ed by tri al couns el

are n ot con tai ned i n th e recor d, there is no dis pute that the moti ons we re f

il ed.

4 Pursuant to Tennessee Rule of Appellate Procedure 3(e), is sues not s pecif ical ly rai sed i n a t imel y mot ion f or
a new trial, other than sufficie ncy of the evide nce, ar e not re viewe d on app eal.
-2- OPINION

BACKGROUND

InSeptembe

r of 1999, the defe

ndant, Donald Walla

ce, file d a post- con viction petition seeking to obtain a delaye d direct appeal of his 1996 conviction. Our factual summary is taken from the post- convicti on proce edings. 1

Wallace was indic ted for f irst deg ree mur der in the 1996 killin

g of Mel i nda Sue Perrin. Wallace retained counsel and executed an ag reement explicitly stating that trial counse l would be responsi ble only for repr

esentation

at trial a nd would no t be resp onsible for handling any

potential appeals

. Wallace was convi cted of first degree murder by a jury, and the tr

ial court entered a judgment of conviction on January 31, 1997.

After the conviction, trial counsel sent Wallace a letter instructing him h ow to prepare a moti on for new trial and what legal issues should be ra ised but did not obtain court app roval t o withdrawas at to rn ey o f r ec or d. Wa ll ac e f il ed a t im el y pro se

motion for

new trial on February

6, 1997. Because trial counsel had failed to withdraw, however, the trial court re fused to consider the pro se motion. 2 On May 20, 1997, trial counse l filed a motion for new trial, and on May 28, 1997, Wallace filed a secon d pro se motion for

new tria l, alleg ing that

the evide nce was insuffic ient to support the jury’s ver

dict, that the trial court er red in admitting hearsay

evidence and other evidence, and that t he tri al jud ge ma de in ap pr op ri at e c om me nt s i n t he pr es en ce of th e j ur y. 3 The trial court granted trial counsel’s motion to be relieved from representing the de fendant, but did not grant either of the two

late-fi led motions

for new trial.

Onappeal, the Court of Criminal Appeals concluded that because no timely motion for

new trial had been filed, all issues were waived on appeal except for suffic iency of the e vidence. See Tenn. R. App. P. 3(e). 4 The appe llate cou rt held that the evidence was insufficient to support first degree murder, and it remanded to the trial court for re- sentencing for second deg ree murder. Upon remand, the trial court sentenced Wallaceto twenty-five y ears for second degre e murder. Wallace appealed this re-sentencing, which the Court of Criminal Appeals affirmed.5 Amo ng other co ntentions, the State mainta ined th at it pro vided trial cou nsel co mple te access to it s fil es, and

as such, it

satisf ied the requ ireme nts of Brady v. M aryland , 373 U.S. 83 (1963). The tr ial court ag reed and deter mined that this issue w as witho ut mer it.
-3- Ina petition for post-conviction relief, Wallace, now repr esented by new

counsel, alleged that his original trial counsel was inef fective for fail ing to file a timely motion for new tria l. The petition alleged that the defe ndant wa s prejudi ced in his origina l trial be cause

the trial court al lowed the

State to present inadmissib le hearsay

evidence that the victim had previously stated that she was afraid of the defendant, which directly contradicted evidence presented by the defendant

that the victim had been treated kindly by

the defendant. The petition further alleged that the State withheld exculpatory evidence as to the victim’s state of mind prior to trial and that the prosecution had in its possession
a Tennessee Bureau of

Investigation ag ent’s report that would have provided a basis to impeach the pr ej ud ic ia l h ea rs ay t es ti mo ny. 5

Ina hearing on the petition, Wallace arg ued that these errors were prejudicial and provided sufficient ground s for a de layed appe al and a new trial

. The post-conviction trial court found that Wallace had bee

n denied h

is direct appeal o f these is sues due t o the ineffe ctivene ss of coun sel in failing to file a motion for new trial. The trial court g ranted a delay ed appe al, allowed the defendant to file a motion for new trial, and then denied the motion. The Court of Criminal Appeals dismissed the delay ed appe al, howe

ver, con cluding that Walla

ce had r eceive d a direct appeal , thou gh only on the issue of the sufficiency of the evidence. The appellate court concluded that the defendant had not been prejudiced and that the trial court lacked the a uthority to gra

nt a delaye d appeal. We granted the defendant’s applica tion for permission to appeal.

STANDARDOF REVIEW

Since this case arises from the Post-Conviction Procedure Act, Tennessee Code Annotated section40-30-101, et seq. (2003), the defendant is required to prove t

he alleg ation con

tained in his petition by clear

and convincing evidence. Nichols v. State , 90 S.W.3d 576, 586 (Tenn. 2002). A trial court’s factual finding s shall not b e disturb ed unless the evidence in the record preponder ates agains tthem. Id. Determinations of whether counsel provided a defendant constitutionally deficient assistance present mixed questions of l aw and fact. Id. . As such, our review is de novo, and we accord the conclusions reached be low no presumption of correctness. Id.

Inthis case, the Court

of Criminal Appeals based its opinionlargely upon its interpretation of the statutory

law appli cable to

delay ed direct appeal s. Statutory interpretation pre sents a question of law, which we review de novo, accor ding the conclusions reached below no pre sumption of correctness. State v. Ta

it , 114 S.W.3d 518, 521 (Tenn. 2003).-4- ANALYSIS

The defendant contends that the trial court properl y g ranted a delay ed appe al under

the fac ts of this case and that the Court of Criminal Appeals erred by rev er sing the trial court’s ruling and dismissing the appeal. The defendant requests a ne w tri al or a remand t o the Court of Criminal Appeals to address the issues raised in his delay ed motion for new

trial. The State contends that the Court of Cr

iminal App eals cor

rectly dismissed t

he appe al.

We begin our analysis by reviewing when a defenda nt may obtain a delay

ed appeal as set forth in Tennessee Code Annotated section 40-30-113 (2003):

(a) When the tr ial j udge co nduct ing a hearing pursuant to this part finds tha t the petit ioner wa s denied th e right to a n appeal fr o m the original

conviction in violation of the Constitution of the United States or the Constitution of Tennessee and that there is an adequa te record of the original trial proceeding

available for such review, the judge c an: (1) [G]rant a delaye d appeal; or

* * * (3) If no motion for a new trial was filed in theoriginal procee ding, auth orize such mo tion to be made before the original trial court wit hin thirt y (30) days. Such motion shall be disposed of by the orig inal trial court as if the motion had been filed under authority of Rule 59 of the Rules of Civil Procedure.

(E mp ha si s a dd ed ). Si mi la rl y, Tennessee Code Annotation section 4 0-30-111 (a) pro vides, in p art:

If the court finds that there was such a denial or infringement of the rightsof the prisoner as to render the judgment void or voidable, including a finding that tria l counsel was inef fective on direc t appeal , the court shall vacate and se t aside the judgment or order a delay ed appeal as provided in this part and shall enter an appropr iate order.

Ac co rd in gl y, these statutes clearly indicate that a d efendant may receive a delay

ed appeal where there has been a denial of the ef

fective assistanc e of coun sel in viola tion of the

Sixth Amendment

to the United States Constitution and article I, section 9 of the Tennessee Constitution. Indetermin

ing whe ther a de fendant

has been denied th e constitu

tional rig ht to e ffectiv e counse l, courts apply a two-pr

onged test. Strickland v. Washington , 466 U.S. 668, 688 (1984 ); see also State v. Burns , 6 S.W.3d 459, 461 (Tenn. 1999).-5-

First, a defendant must prove that counsel was ineffective by showing errors made by

counsel that caused the assistance of counsel to fall below pre vailing professional norms. Strickland , 466 U.S. at 6 87. Inmaking t

his asses sment, how ever, c ourts must be deferential to the tactical decisions of counsel and

must not base assessments on a lawye r’s competence from the clear perspective of hindsight. Id. at 689.
Second, upon establishing that counsel was defi cient, th e petitioner must establish a
reasona ble probability that the outcome of the trial would have been different but for the de ficiencies of counsel. Strickland , 466 U.S. a t 687, 694. Althoug

h this second prong of the Strickland analy sis is commonly refe

rred to as “actual prejudice,” see, e. g. , Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994), the re is a sma

ll categ ory

of case s in

which actual prejudice need not be shown. See United States v. Cronic , 466 U.S. 648 (1984). In Cronic , for example, which was decided on the same day
as Strickland , the Unite d States Supreme Cour t sta ted that there are situations where counsel’s performance is so deficient that it becomes presumptively prejudicial. Cronic , 466 U.S. at 6 58. In comparingthis level of ineffective counsel t o the complete denial of counsel, the Court concluded that when “counsel entirely

fails to su bject the prosecu tion’s ca se to meaningful adversarial testing,” the process becomes “presumptively unreliable” and proof of actual prejudice is not required. Id. at 659.

Withregard to the first prong of Strickland , we conclude that coun sel’s fa ilure to f ile a time ly motion for new

trial, as well as hi s failure

to withdra

w so as to allow the defendant to file a pro se motion for new trial, was deficient. I ndeed, counsel’s failure to take a ny timely

action following trial created a Catch-22 predicame nt – Wallace had counsel in name only , who failed to pre serv e Wallace’s post-trial and appellate remedies, y et hav ing that

c ounsel also prevented him from proceeding

in a pro se

fashion to preserve his remedies. I n short, counsel’s performance clearly fell below the established professional norms. We are a lso of the opinion tha

t trial co unsel’s f ailure to file a ti mely motion for new trial, despite the clear desire of the defendant to do so, constitutes deficient perfor mance no twithstan

ding the retaine r agre ement t

h at purported to limit counsel’s
r epresentation

to tri al wor k. Tak ing nec essary st eps to preser ve pos t-tri al rem edies , incl udin g t h e filing o f a motion f

or new tr ial, are clearly responsi bilities of counsel:

Duties of Counsel Regarding Appeal. – An attorney re

tained by the defendant to represent the defenda ntfor the trial, and not upon appeal, shall time ly

advise the trial court of this fact at the hearing on the motion for a new trial. Thereupon, such counsel will be permitted to withdraw as counsel of record. Tenn. R. Crim. P. 37(e).

Withregard to the second prong of Strickland , we note

first tha t t he Co urt of Criminal Appeals concluded that the defendant was not prejudiced be cause he had the benefit of a dire c t appeal on the issue of sufficiency of the evidence and thus was not entitled to a delaye d direct appeal under Te nnessee Code Anno tated se ction 40- 13-113. T he court reasone d:-6- we [do not] see an applicable constitutional imperative for allowing the second a

ppeal in t he absen ce of a showing o f prejud

ice. To o btain post-convictionrelief, the [defendant] needed to demons trat e ineffective assistanc e of coun sel – that is, bo th deficient performance and actual prejudice in the sense that had specific issues be en included in a new-trial motion and address ed on app eal, the y w ould have resulted in a new trial or other appropria te relief.

We disagree that the prejudice prong of the analy sis can be resolved simply by reasoning that Wall ac e had direct review on the issue of sufficiency of evidence alone. Nothing in the statutory l anguage of Tennessee Code Annotated section 40-30-113 specif ically limits the tri al court ’ s discretionto order a delay ed direct appeal to circumstances wher e there was a complete denial of a direct appeal. Indeed , the Court of Criminal Appeals’ reasoning would eliminate the remedy of a delayed appeal in all cases in which counsel completely fails to preserve post-trial and appella te
r eview of an y issues other than suffic iency of the e vidence. We cannot dispose of the issue of whether the defenda

n t was unconstitutionally denied a direc t appeal based solely

upon a determination that there was appellate review of one unwaived issue.

We likewise disagree with the Court of Criminal Appeals’ conclusion that the defendant is required to demonst

rate actual pre

judice f rom couns el’s def

icient pe rforman ce. Couns el faile d to file a timely moti on for new trial or, at the very least, a motion to withdraw as counsel so the defendant co ul d f il e a pr op er an d t im el y pro se motion. Counsel’s abandonment of his client at such a crit ical s tage of the proceedings resulted in the failure to prese rve and p ursue the availab le posttrial remedies and the complete failure to subject the State to the adversarial appellate process. See Cronic , 466 U.S. at 659. Counsel’s deficient performance was, ther efore, presumptively

prejudicial and supported the trial court’s grant of a delay ed appeal under Tennessee Code Annotate d section 40-30-113.

Inreaching this conclusion, we observe that the United States Supreme Court has indicated that ineffe ctive as sista

n ce of counsel can result in “the forfe iture of a proceeding [such as a direc t appeal] itself.” Roe v. Flores -Ortega , 528 U.S. 470, 483 (2000). In Flores -Ortega , a federal habeas corpus case, the petitioner complained that his trial co unsel fa il ed to file a notice of appea

l, apparently ba

rring the petitioner’s appeal. Id. at 474. The Court observed:

We have longheld that a lawye r who disregards specific instructions from the d

efenda nt to file a notice of appea l acts in a manner that is prof essional ly unreasonable. See Rodriquez v. United States , 3 9 5 U.S. 327 (1969 ); cf. Peguero v. United States , 526 U.S. 23, 28 (1999) (“[W]hen co unsel fa

ils to file a

request ed appe al, a def

endant is entitled to [a new] appeal witho ut showing that his ap

peal wou ld likely have had merit”). This is so because a defenda nt who instr

ucts counsel to initiate an appeal reasonably relies upon

counsel to file the necessary notice.-7-

Flores -Ortega , 528 U.S. at 477 (parallel citations inoriginal omitted) (bracketing in orig inal). The Courtalso commented

that its holding was supported by Cronic : that the complete denial of counsel during a criti cal st age of judicial proceedings renders those pr oceedings “presumptively unreliable.” Id. at 483 (citi ng Cronic , 4 66 U. S. at 65 9) . A cc or di ng ly, the Court held that “to show prejudice, .

. . a defenda nt must demonstrate that there is a reasonable probability that, butfor counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” Id. at 484.

Other states ha ve follow ed the ra

tionale of Flores -Ortega and Cronic . In State v. Trotter , 609 N.W.2d 33 (Neb. 2000), the Supreme Court of Nebraska held:

that after a trial, conviction, and sente ncing, if counse l deficie

ntly fails to fileor perfect an appeal afte r being so directed by

the criminal defenda nt, prejudice will be presumed and coun sel will be deemed ineffective, thus entitling the defendant to postconviction relief.

Id. at 41. We find

the reasoning of these courts persua sive. See also Peoplev. Edwards , 757 N.E.2d 442 (I ll. 2001); State v. Rogers , 32 P.3d 724 (Mont. 200 1); State v. Wicker , 20 P.3d 1007 (Wash. Ct. App. 2001)

. As these courts have recog nize d, the key issue is the fa ilure of trial counsel to file the specified pleading resulting

in the def endant be ing dep rived of

complete appellate review on direct appeal. In Edwards , the Supreme Court of Illinois held that if trial counsel fails to file motions to withdrawa guilty

plea and to appea l, despite the petiti oner’s d

esire to d o so, coun sel’s assis tance would be constitutionally ineff

ective. 757 N.E.2d at 452-53. In Wicker , the Court of Appeals of Washingtonheld “that an attorney ’s failure to file a requested notice of a ppeal is ‘ profess ionally unreasonable’” and that

“[t]he defendant need not make any additional showing of prejudice.” 20 P.3dat 1009. These state court cases , citi ng Flo res-Or tega and Cronic , emphasized that trial counsel’s failure to file motions to preserve appeals amounted to ineffective assistance, rendered the
re lated proceedings “presumptively unreliable,” and raised a presumption of prejudice to t h e defenda nts. See also Rogers , 32 P.3d at 729 (ado pting in d icta the rule of Flores -Ortega in a case where a defendant would have a ppealed but for counsel’s ineffectiveness)

.
In Flores -Ortega , the United States Supreme Court rejected a per se rule tha t would pre sume prejudice wheneve

r trial c ounsel, without the e xplicit dire ction of the client, failed to file a notice of appeal, and instead required proof that the defendant would have appealed. Id. at 48 0. We likewise decline to adopt a per se

rule r egardin g a

trial cou nsel’s fa ilure to f ile a motio n for new

trial; instead, a petitioner in a post-conviction proceeding must estab lish that he

or she int ended to f ile a motion for new trial and that but for the deficient representation of counsel, a motion for new trial would have been filed raising issues in addition to sufficiency of the evidenc e. This rule pro tects
a defendant’s constitutional right to effective counse l , w hile preventing petitioners from pursuing6 The Stat e’s rel ianc e on the unp ublishe d cas e of State v . Griffin , No . E 200 0- 024 71- CCA- R3- CD, 2 00 1 WL

710178 (Tenn. Crim. App. Jun e 25, 2001) , whi ch was als o rel ied u pon by the Court of Crim inal Ap pea ls, is mispl aced. In Griffin , a petitio ner so ught a d elayed app eal on the ba sis that counsel was in eff ect i ve for fa iling to inclu de ce rtain iss ues in t

he direct appeal. The Court of Cri minal Appeal s conclu ded that there was no evi dence of actua l preju dice to that petiti oner under Strickland and uphe ld the d enial o f a dela yed ap pea l. The decision in Griffin is dis ti ngui shabl e fr om the pres ent case, howeve r, i n th at t he pet it ioner ’s couns el i n th at c ase f il ed a mot ion for a ne w tri al and d id no t com pletely fail to sub ject the State to any dire ct a ppell ate scru ti ny. In con tra st, Wallace ’s couns el c omplet ely fai led t o fi le a moti on fornew trial, m ove to withd raw as coun sel, or o therwise prese rve ap pellate review of the d efend ant’s co nviction

. As such, tri al counsel’s performance was presumptively prejudicial under the reasoning in Cro nic and Flores-Ortega

. -8- untimely direct appeals in cases where they have in fact re ceived e ffectiv e assista nce of c ounsel in connection with post-trial procedure. 6

We also note

that the U

nited State s Supreme

Court in the

recent caseof Bell v. Cone , 535 U.S. 685 (2002), discussed the Cronic standard. In Cone , a Tennessee capital case on ce rtiorari from the United States Court of A ppeals f or the Sixth Ci

rcuit, the United States Supreme Court reversed the Sixth Circuit’s grant of a writ of habeas corpus and held that the Court of Criminal Appeals of Tennessee properly a

pplied the conve

ntional Strickland

test rather than Cronic

. Id. at 698. Writing for the majority, Justice Rehn quist stated t hat “[w]hen we spoke in Cronic of the possibility of presuming prejudice based on an attorney ’s failure to test the prosecutor’s cas e, we i ndicated that the attorney’s f

ailure must be complete.” Id. at 696-97. In Cone , the hig h court ul

timately determined

that coun sel’s errors were sporadic in nature, rather than complete. Id. at 697-98. Therefore, the United States Supreme Court held t hat the Court of Criminal Appeals properly applied the Strickland

test for “actual prejudice.” Id.

As we have previously

stated, we find that trial counsel’s deficiencies post-trial amounted to a complete failure

to subject the State’s case to appellate scrutiny . As a result, we hold that in the case at bar, the Court of Criminal Appeals erred in a pplying only

the Strickland

test.

Ac co rd in gl y, we hold

that counsel’s performance following the defendant’s conviction was deficient and pres umptively pr ejudicial. As a direct result of counsel’s ineffec tive assistance, the defendant wa s pr ocedurally ba

rred from pursuing issues on appeal, and the State’ s case was not subjecte d to adver

sarial sc rutiny upon appe al.

CONCLUSION

After reviewing the record and a pplicable authority, we

conclude that the trial court properl y gran ted a delaye d appeal based upon ineffective assistance of counsel. We therefore r everse th e Courtof Criminal Appeals, affirm the trial court’s grant of a delay ed appeal, and remand to the Court of Criminal Appeals for review of the issues presented by the defendant’s appeal fro m the trial court’s denial of his motion for a new trial. Costs are taxed to the State of Tennessee.-9- ___________________________________ E. RIL EY ANDER SON, JUSTI CE