FILED

August 27, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JUNE 1999 SESSION

EDWARD THOMAS KENDRICKS, III, )

alias ) C.C.A. NO. 03C01-9806-CR-00205

EDWARD THOMAS KENDRICK, III, )

)

Appellant, ) HAMILTON COUNTY

)

VS. )

) HON. STEPHEN M. BEVIL,

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

EDWARD T. KENDRICKS, III PAUL G. SUMMERS

P.O. Box 2000 Attorney General & Reporter

Wartburg, TN 37887

(Pro Se) GEORGIA BLYTHE FELNER

Asst. Attorney General

John Sevier Bldg.

425 Fifth Ave., North 

Nashville, TN 37243-0493

WILLIAM H. COX, III

District Attorney General

OPINION FILED:____________________

AFFIRMED IN PART; REVERSED IN PART;

AND REMANDED

JOHN H. PEAY,

Judge
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O P I N I O N

A jury convicted the petitioner of the first-degree murder of his wife, which

this Court affirmed. State v. Edward Thomas Kendricks, III, No. 03C01-9510-CR-00336,

Hamilton County (Tenn. Crim. App. filed September 25, 1996, at Knoxville). In April

1998, the petitioner timely filed a petition for post-conviction relief. By written order, the

post-conviction court dismissed the petition without a hearing, finding the issues raised

were either waived or previously determined. One week later, the petitioner filed an

amended petition for post-conviction relief. The post-conviction court dismissed the

amended petition for post-conviction relief as being untimely filed. On appeal, the

petitioner argues various reasons why the post-conviction court erred in dismissing his

petition without first allowing him to amend it with the aid of counsel. Finding some merit

to the petitioner’s arguments, we reverse the post-conviction court’s order in part and

remand for further proceedings.

The petitioner contends that the post-conviction court’s written order

illustrates that the court erred in dismissing his petition without allowing for an

amendment. In the order dismissing the original petition, the post-conviction court

acknowledged that the petitioner attached to and incorporated in his petition a document

titled “memorandum of law,” stating that the memorandum “in substance appears to be

more of a general recitation of his allegations rather than a Memorandum of Law.” A

review of the “memorandum of law” reveals that it is in fact more of a detailed recitation

of the underlying facts and allegations, as required by the Post-Conviction Procedure Act,

rather than a memorandum of law containing legal argument and citation. We fail to

understand how the trial court’s characterization of the “memorandum of law” illustrates

error in dismissing the petition.

The petitioner also claims that the post-conviction court erred in dismissing
1Although the trial record is not before this Court, all parties appear to agree that the petitioner

was represented by different attorneys at trial than on appeal. According to documents attached to the

petitio ner’s appe llate brief, th e pub lic def ender’s o ffice filed a mo tion fo r new trial on the petition er’s

behalf, but a supplemental motion for new trial was filed by a private attorney, Jerry Summers, who

continued to re pres ent th e petitioner on a ppeal.

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his amended petition as untimely filed. The petitioner refers to a document in the record

entitled “Motion for Extension of Time to File Amended Petition” and claims that if his

motion had been granted, then his amended petition, which was filed one week after the

court’s dismissal of his original petition, would have been timely filed. Although the

petitioner appears to assume he was entitled to an extension of time to file an amended

petition simply by filing a motion for extension of time, the record does not contain an

order disposing of his motion, thus indicating that he waived his request for an extension

by failing to secure a ruling on his motion. See Nashville Chattanooga & St. Louis Ry. v.

Hayes, 117 Tenn. 680, 99 S.W. 362, 366 (1907)(it is the movant’s duty to ensure a

ruling). Without an extension of time, the post-conviction court was within its authority to

rule upon the petitioner’s original petition. See T.C.A. § 40-30-206. When the court

dismissed the original petition, the petitioner’s remedy was to appeal the dismissal, not

file an amended petition. Because the petitioner’s attempt to amend his petition followed

the post-conviction court’s dismissal of his original petition, the post-conviction court

properly dismissed the petitioner’s amended petition as untimely.

The petitioner also complains that the trial court dismissed the merits of his

original petition without a hearing. In his original petition and attached “memorandum of

law,” the petitioner alleged various instances of trial court errors and prosecutorial

misconduct. The petitioner alleged ineffective assistance of trial counsel for various

omissions and errors committed during trial by his trial attorney, an assistant public

defender. The petitioner further alleged ineffective assistance of trial counsel to the

extent that some potential issues were not raised in his motion for new trial, which

apparently was filed by a different attorney. 1 To the extent that some issues were not

raised on direct appeal, the petitioner also alleged ineffective assistance of appellate
4

counsel. In ruling on the petition, the post-conviction court found that all allegations were

either waived or previously determined on direct appeal.

A post-conviction court shall dismiss any petition for post-conviction relief

that claims relief for issues that have been waived or previously determined. T.C.A. § 40-

30-206(f). Section 40-30-206 defines “waived” and “previously determined” as follows:

(g) A ground for relief is waived if the petitioner personally or through

an attorney failed to present it for determination in any proceeding before

a court of competent jurisdiction in which the ground could have been

presented unless:

(1) The claim for relief is based upon a constitutional

right not recognized as existing at the time of trial if either the

federal or state constitution requires retroactive application of

that right; or

(2) The failure to present the ground was the result of

state action in violation of the federal or state constitution.

(h) A ground for relief is previously determined if a court of

competent jurisdiction has ruled on the merits after a full and fair hearing.

A full and fair hearing has occurred where the petitioner is afforded the

opportunity to call witnesses and otherwise present evidence, regardless

of whether the petitioner actually introduced any evidence.

T.C.A. § 40-30-206(g)-(h).

 The record shows that some of the issues raised by the petitioner were

previously determined by this Court on direct appeal. Those issues raised by the

petitioner that were previously determined by this Court on direct appeal were properly

dismissed without a hearing. See T.C.A. § 40-30-206(f), (h).

A more difficult question arises with regard to whether the post-conviction

court properly dismissed the remaining issues on the ground they were waived. The

post-conviction court stated in its order that some of the issues raised in the petition were

waived because the petitioner, “through his attorney, failed to present [them] for

determination in the appeal of this matter.” The post-conviction court concluded, “Since

the petitioner had separate counsel on the appeal than he had during the course of the
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trial, the issues as to the ineffective assistance of counsel either were or could have been

raised on appeal.”

The petitioner alleged various instances of ineffective assistance of

appellate counsel. The facts alleged, when taken as true, raise potential grounds for

post-conviction relief. See T.C.A. § 40-30-203. Thus, due process requires that the

petitioner be afforded the opportunity to prove his contentions. See Waite v. State, 948

S.W.2d 283, 285 (Tenn. Crim. App. 1997). Accordingly, the post-conviction court erred

in dismissing the petitioner’s claims of ineffective assistance of appellate counsel under

§ 40-30-206.

Moreover, we have previously warned defendants and their counsel of the

dangers of raising the issue of ineffective assistance of trial counsel on direct appeal

because of the significant of amount of development and factfinding such an issue

entails. See State v. William E. Brewer, No. 02C01-9710-CC-00400, Benton County

(Tenn. Crim. App. filed October 28, 1998, at Jackson); State v. Robert Wayne Frantz, Jr.,

No. 03C01-9509-CC-00269, Sevier County (Tenn. Crim. App. filed February 6, 1998, at

Knoxville); see also Thompson v. State, 958 S.W.2d 156 (Tenn. Crim. App. 1997); State

v. Jimmy L. Sluder, No. 1236, Knox County (Tenn. Crim. App. filed March 14, 1990, at

Knoxville). Given this, we do not believe the Legislature intended the issue of ineffective

assistance of appellate counsel to be waived if not raised on direct appeal. Thus, we

conclude that the post-conviction court erred in holding that the petitioner’s ineffective

assistance of counsel claims were barred for failure to raise them on direct appeal.

Even if the Legislature did intend for claims of ineffective assistance of

counsel to be waived if not raised on direct appeal, the petitioner’s claims are not waived

under the circumstances of this case. Here, the petitioner has alleged ineffective

assistance of counsel for failing to raise a myriad of issues in his motion for new trial and
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on direct appeal. If the petitioner’s allegations are taken as true, the failure to raise any

potential ground for relief is attributable to counsel’s incompetence, not the petitioner’s

waiver. Thus, any failure to raise these issues cannot be considered a valid waiver under

§ 40-30-206(g).

In sum, the post-conviction court properly dismissed those issues that were

previously determined by this Court on direct appeal. However, the allegations regarding

ineffective assistance of counsel in preparing the motion for new trial and on appeal

should not have been summarily dismissed. Although the petitioner’s allegations may be

exceedingly difficult to prove, he should at least be afforded the opportunity to do so. See

Waite, 948 S.W.2d at 285. This includes, pursuant to T.C.A. § 40-30-207, the

appointment of counsel (assuming the petitioner is indigent) and the opportunity to

amend his petition.

The post-conviction court’s order is reversed in part and this case remanded

for further proceedings. Given this disposition, the petitioner’s remaining issues on

appeal are moot.

_______________________________

JOHN H. PEAY, Judge

CONCUR:

______________________________

DAVID G. HAYES, Judge

______________________________

JOHN EVERETT WILLIAMS, Judge