### FILED August 27, 199

9 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JUNE 1999 SESSION

EDWARD THOM AS KENDRICK S, III, ) alias ) C.C.A. NO. 03C 01-9806-CR-00205 EDWARD THOM AS KENDRICK , III, ) ) Appellant, ) HAMILTON COUNTY ) VS. ) ) HON. STEPHEN M. BEVIL, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE:
EDWARD T. KEN DRICKS, III PAUL G. SUMMERS P.O. Box 2000 Attorney General & Repor ter Wartburg, TN 37887 (Pro Se) GEORGIA BLY THE 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 REMA

NDED JOHN H. PEAY, Judge2 

### O P I N I O N

A jury convicted the

petitioner of thefirst-degree murder of his wife, which this Court affirmed. State v. Edward Thomas Kendr icks, III , No. 03C01-9510-CR-00336, Hamilton County (Tenn. Crim. App. filed September 25, 1996 , at Knoxvil le). In April 1998, the petitioner timely fil ed a petition for post-conviction relief. By writ

ten order, the post-conviction court

dismissed the petition w ithout a hearing, finding the issues raised
were either waived or previously determin ed

. One week later, the peti tioner filed an amended petition for post-convic tion relief. The post-convi ction court dismissed the amended petiti on for pos t-conv iction relief as being untimely filed. On appeal, t he petitioner

argues various reasons why th e 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 pos t-convicti on court’s order in part and remand for further proceedings.

The petitioner contends that the pos t- con viction court’s written order illustrates

that the court erred in dismissin g his petition without al lowing for an amendment. In the order dism issing t he 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 appear s to be
more of a general recitation of his allegations rather

than a M emorandum 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 a llegations, as required by the Post-Conviction Procedure Act, rather than a me morandum

of law c ontaini ng leg al argu ment and c itation . We fa il t o understand how

the trial court’s char

acterization of the “memorandum of law” illustrates error in dismissing

the petition.

The petitioner also claims t hat the post-conviction co urt erred in dismissing1 Although t he trial record is not

before thi s Court, al l parti es appear to agre e that t he petit ioner was represented by

differen t attorneys at t rial than on appeal. According to documents attached to the petitio ner’s appe llate b rief, th e pub lic def end er’s o ffice filed a mo tion fo r new trial on the p etition er’s behalf, bu t a supplementalmotion for new t rial was filed by a pri vate att orney, Jer ry Summers, who con tinue d to re pres ent th e pet itione r on a ppe al. 3 his amended petition as untimely filed. The petition er refers to a document in the record entitled “Motion for Ex

tension of Time to File Amended Petition” and claims that if his motion had been granted, then his amended petition, whic h was filed one week after the court’s dismissal of his origi nal petition, woul d have been timely filed. Although the petitioner

appears to assume he was enti tled to an extension of time to file an amended petition simply by filing a motion for extension of time, the record does not contai n an order disposing of his motion, thus indicating that he waived his request for an extension byfailing to secure a rul ing on his motion. See Nashville Chattanoog a & St. Louis Ry. v. Hayes , 117 Tenn. 68 0, 99 S.W. 362 , 366 (1907)(it is the mov ant’s duty to ensure a ruling). Without an extension of tim e, the post-conviction court was within its authority to rule upon the petitioner’s orig inal petition. See T.C.A. § 40-3 0-206. When the court dismissed the original

petition, the petitioner’s remedy was

to appeal the dismissal, not file an amended petition. Because the peti tioner’s attempt to amend his peti tion followed the post-conviction cour t’s dismissal of his ori ginal pet itio n, the post-conviction court properly d ismissed the petit ioner’s a mended petition as untime ly.

The petitioner also complains that the trial court dismissed the merits of his original petition without a hearing. In his orig inal petition and attached “memorandum of law,” the petitioner alleged va rious instances of trial c ourt errors and prosecutor ial misconduct. The petitioner alleged ineffective assistance of trial coun se l f or various omissions and errors committed duri n g trial by his trial attorney, an assistant public defender. The peti tioner furt her alleged ineffective ass istance of trial counsel to the extentthat some potential issues w ere not raised in his motio n f or new trial, which apparently was filed by a different a ttorney. 1 To the extent that some issues were not raise d on direct appeal, the petiti oner also alleged ineffectiv e assistance of appellate4

counsel. In ruling on the petition, the post-conv iction court found that all al legationswere either waived or previously determined on direct appeal.

A post-conviction court shall dismiss any petition for post-convic tion relief that claims relief for issues t hat have been waived or previously det

ermined. 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 throu gh an attorney

failed to present it for determin ation in any proceeding before a court of competent jurisdicti on in which the ground could have bee n presented unless:

(1) The claim for relief is based upon a constitutional right not recognized as ex

isting at the time of

trial if either the federal or state constitution req uires retroactive applicat ion of that right; or (2) The failure to present the ground was the result of state action in violati on of the federal or state constituti on. (h) A ground f or relief is previous ly d etermined if a court of competent jurisdiction has rul ed on the meritsafter a full and fair hearin g. A full an d fair hearing has occurr ed where the petitioner i s afforded the opportunity

to call witnesses and otherwise pre s ent evidence, regardless of whether the petitioner act ually introduced any evidence. T.C.A. § 40-30-206(g)-(h).

The record shows that some of the issues raised by the peti tioner were previouslydeterm ined by this Court on direct appeal. Those issues raised by the petitioner

that were previously determi ned by this Court on direct appeal were properly dismissed without a hear ing. SeeT.C.A. § 40-30-206(f), (h).

A more difficult question aris es with regard to

whether the post-conv iction court properly dismissed the re maining issues on the gr ound they were wai

ved. The post-convictioncourt stated in its order that some ofthe issues raised in the petition were waived because the petitioner, “thr ough his attorney, failed to present [t h em] 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 the5

trial, the issues as to the ineffectiv e assistance of counsel either were or could have been raised on appeal.”

The petitioner alle ge d va rious instances of ineffective assistance of appellate counsel. The facts alleged, when taken as true, raise potential grounds for post-convictionrelief. See T.C.A. § 40-30-203. Thus, due proc ess requi res 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 petitio ner’s claims of ineffective as sistance of appellate counsel under § 40-30-206.

Moreover, we have previous ly warned defendants and their counsel of

the dangers of raising the issue of ineffective assistance of tri al c ounsel on direct appeal because of the significant of amoun t of development and factfinding such a n issue entails. Se e State v. William E. Brewer , No. 02C01-9710-CC-00400, Benton County (Tenn. Crim. App. filed October 28, 1998, at Jac kson); State v. Robert Wayne Frantz, Jr. , No. 03C01-9509-CC-00269, Sev ier County (Tenn. Crim. App. fil ed 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 Mar ch 14 , 1990, at Knoxville). Given this, we do not believe the Legisl ature intended the issue of ineffe ctive assistance of appellate counsel to be waive d if not ra ised on di rect appe al. Thus , we conclude that the post-conviction court er red in hol ding that the petit ioner’s in effect ive assistance of counsel claims were barred for failure to raise them on direct appeal.

Even if the Legislature did int end for claims of inef

fec tive assistance of counsel to be waived if not rai sed on direct appeal, the petit ioner’s claims are not w aived under the circumstances of this cas e. Here, the petitioner has alleged ine ffecti ve assistance of counsel for failing to rais e a myriad of issues

in his motion for new tri al and6

on direct appeal. If the petitioner’s allegations are taken as true, the failure to raise a ny potential ground for relief is attributable to counsel’s incompetence, not the petitioner’s waiver. Thus, any failure to raise these issues cann ot be considered a valid w aiver under § 40-30-206(g).

In sum, the post-convictio n court properly dismi ssed those issues that were previouslydetermined by this Court on direct appeal. However, the allegations regar ding ineffe ctive as sistance ofcounsel in preparing th e motion for new trial and on appeal should not have been summarily dis missed. Although the petiti oner’s allegations may be exceedinglydifficult 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 (assu ming the petitioner is indigent) and the opportunity to amend his petition.

The post-conviction cour t’s order is rever

sed in part and this case remanded for further proceedings. Giv en this disposition, the peti tioner’s remaining is

sues on appeal are moot.

_______________________________ JOHN H. PEAY, Judge CONCUR:

______________________________ DAVID G. HAYES, Jud ge

______________________________ JOHN EVERETT W ILLIAMS, Judge