### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs A ugus t 16
, 200 5

RA ND OLP H JENN INGS v. S TAT E OF TEN NES SEE

Appeal f romthe Cr im inal Cou rt for Ham ilton Coun ty No. 247485 Douglas A. Meye r, Judge

No. E2004-02646-CC A-R3- P C - F iled Novem ber 14, 2005

The pe titioner, Randolph J enning s, appea ls f rom the Hamilton County Criminal Court’s denial of h i s p e t i t i o n f

o r p o s t

- c o n v i c t i o n r e l i e f f r o m h i s c o n v i c t i o n f

o r a g g r a v a t e d r o b b e r y, a C l a s s B f e l o n y, and sente nce of

sevente en y ear s as a Rang e I I , multipl e o ff en der. O n appea l, he contends tha t he recei v ed t h e inef

fec tive assistance of counse l because (1) his trial counsel fa iled to raise the issue that th e state su pp re sse d f a vo ra ble e vid e nc e in v iol a tio n o f B ra dy v. Ma ry la nd , 3 73 U. S. 8 3, 83 S. Ct. 11 94 (1 96 3) ; ( 2) his tr ia l c ou ns e l f a ile d to e xpla in h is c on sti tut ion a l r ig ht t o te sti fy pu rs ua nt t o Momon v. St ate, 18 S.W.3d 152 (Tenn. 1999); and (3) his appellate counsel failed t o advise him of his right to appe al to the Tenne ssee Supre me Court in a timely manner

. We r ever se the judg ment of the tr ia l c ou rt , g ra nt a

de la y e d a pp e a l, a ndstay

fu rthe r pr oc e e din g s pen din g the de la y e d a pp e a l to the Te nn e sse e Sup re me Cou rt

.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt R ever sed
, Delayed Appeal Grante d

J OS EP H M. T I PTON , J ., delivere d the opi n i o n of the c ourt, in which T H O M A S T. W O O D A LL and R OB E R T W. W EDEMEYER , J J ., joined.

B ra nd on Do ug la s Rauls ton , Ch a tta no og a , T e nn e sse e , f or the app e lla nt, Ra nd olp h Jen nin g s.

Pa ul G . Summe rs , Atto rn e y Ge ne ra l a ndRe po rt e r; An g e le M. Gr e g ory , A ssi sta nt A tto rn e y Ge ne ra l; Wil liam H. Cox , I I I , District Attorney Gene ral; and Rodney

C. Strong, Assistant Dist rict Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

The e vidence at the convic ting tria l refle cted that on April 9, 1999, the petitioner a pproac hed the victim as she wa s g etting out of her c ar ou t s i d e her

place of employ ment in downtown Chattanoog a. The petitioner pointed a g un at the victim a nd demande d she g ive him money

. The victim was only

able to produc e thre e dollars, whic h the petitioner took along wi th an eng rave d watch. Shortly

there afte r, a police office r enc ountere d the petitioner a nd chase d him into a chicken-2-

plant, wher e the pe titioner was see n t h ro wi n g a g un into a chicke n vat. Off icer s appre hended the petitioner and sear ched him, finding the victim’s watch a nd three dollars. The vic tim later identified the petitioner a s the robber

. At the trial, the pe titioner did not pre sent evidenc e, but he did attempt to discredit the state’s identification evide nce. T he petitioner a sserted tha t the description g iven by the victim of what the
perpe trator wa s wea

ring varied fr o m t h e d escription given by the police of

fice rs. The pa

rties stipulated that the clothing worn by the petitioner a t the time of his arr est could not be located. The jury reje cted the pe titioner’s cha lleng e to discre dit the ide n tification proof a nd convicted him of
ag g ravated robbe ry . The pe titioner appea led, and this court a ffirme d his convict i o n

. See State v. Randolph Scott J enning s, E2001-02118-CCA-R3-CD, Ha milton County (Tenn. Crim. App. De c. 6, 2002). On Nove mber 27, 2003, the petit ioner filed a petiti on for post-conviction relief alleg ing that he re ceive d the ineff

ective a ssistance of c ounsel.

At the post-conviction hea ring , the petit ioner testified that he wa s repr esente d by the district public defe nder at the trial

. He s ai d h e met with hi s attorney four or five times and met with an investigator one time bef ore tria l. He said he re q u es t ed that his trial attorney investigate what happ en ed t o t he clothes he was we aring at the time of his ar rest bec ause he felt the c lothes were signific ant to his de fense

. The pe titioner testified that he unde rstood his right to testify but that he

w a s c o n f u s e d

. H e s a i d t h a t a l t h o u g h h i s t r i a l a t t o r n e y t h o u g h t “ a t t h e l a s tm i n u t e ” h e s h o u l d t e s t i f y, she “didn’t talk a

bout what, what should I

speak on a nd what should I not speak on.”

On cr oss-examination, the pe titioner acknow ledg ed that his tria l attorney raised the issue of his lost clothi ng in pretrial motions and that the judg e rule d on how the at t o rney could use the information at the tria l. The petitioner acknowledg ed his trial attorney arg ued at the trial that the jury should not believe the pe titioner was involved in the robbe ry beca use the c l o t h es we re not in the possession of the jail at the time of the trial. The petitioner said he did not believehis trial attorney had his best intere st in mind. He said he thought she relied on the s trateg ies of his previous a ttorney instead of de vising ne w strateg ies.

The pe titioner acknow ledg ed that he had two prior convictions which could have be en used
aga i n s th i mh ad h e t es t i fi ed an d t h at t h o s e co n v i ct i o n s we re p ar t o f t h e re as o n fo r hi s n o tt es t i fy i n g. He f urther a cknowledg ed that the trial court asked him if he wa nted to testify and that he r esponded he h a d d e c i d e d n o t t o t e s t i f y a f t e r c o n s u l t i n g w i t h h i s a t t o r n e y

. T h e p e t i t i o n e r a c k n o w l e d g e d h is decision not to testify was made knowing ly and based on the risk of his prior convic tions being use d

a g a ins t hi m.
The pe titioner’s trial attorne y testified at the post-conviction hearing that she was the district public defe nder f

or Hamilton County and that she had held that position si nce 1989. T he attorne y testified that s he had been prac ticing law s ince 1983 and that most of her private pra ctice involved

c ri min a l de fe ns e . Sh e sa id s he too k o ve r the pe tit ion e r’ s c a se o n S ept embe r 2 6, 20 00 . Sh e sa id another attorney in her off ice had repr esente d the petitioner throug h the close of the state’s pr oof at the pe tit ion e r’ s f

ir st t ri a l w hic h e nd e d in a

mis tr ia l.-3-

The trial a tt o r n e y te s ti f

ie d th e f a c ts o f th e c a s e d id n o t c h a n g e f r o m th e f ir s t tria l to the second, a nd there fo re , no major additional investig ation occur red. She te stified she had the advanta g e of knowing the state’s proof by having the transcript from the first trial. She said she f iled motions on behalf of t he petiti oner, including a motion to dismiss or compel discovery reg arding the clothing the petitioner was wea ring at t he ti me of his arre st. She testified that there w as a he aring on the motion and that the judge ruled there was no intentional hiding of the clothing. She sa id the trial court a llowed her to a rg ue about the diffe rent de scriptions g iven by the diffe rent witnesse s at tr ia l.

On cr oss-examination, the trial attorney testified she prepa red and investigated the ca se by

re vie wi ng the tr a ns c ri pt f

ro m th e fi rs t tria l, m e e tin g wi th the inv e sti g a tor , g oin g ov e r the c a se wi th the pre vious attorney , and discussing with her what the strateg y had bee n. She testified that she dis c us se d w ith the pe tit ion e r tha t hi s p ri or fe lon ie s a ndhi s parole status a t th e tim e of the of fe ns e

wo uldbe us e d to imp e a c h h is c re dib ili ty if he te sti fi e d. She sa id the de c isi on to t e sti fy wa s so le ly the petitioner’s a nd “I

do not disc ourag e or encour ag e people; I just basically

tell them, [ i] f y ou do choose to testify , this is what can be broug ht in and how it ca n apply to y ou.” She said she did not know if the pe titioner was g oing to testify until the day of trial. She said the tria l judge asked if the peti t i o n er would testify

and she r esponded he would not. She said the trial judg e then a sked the petitioner the same question and the pe titioner respon ded that he w ould not testify and that it was h i s d e c i s i o n n o tt o t e s t i f

y.

The trial attorney

also testified ab o u t the appe llate counse l’s attempt to file a Rule 11 application for permission to appea l. She said that she worke d in the same public de fende r’s off ice as the a ppellate attorney

and that af

ter this court’s opinion on direc t appea l, the appellate attorney

a tte mpt e d to c on ta c t th e pe tit ion e r. Ho we ve r, sh e did no t r e c e ive the pe tit ion e r’ s r e sp on se un til

“ a ft e r h is a

pp e lla te tim e ha d run. ” She sa id the app e llate a tto rn e y ha d d oc ume ntatio n in the fi le stating tha t the appellate attorney had advi s ed t h e p etitioner that he ha d “g ood standing ” for a delay ed appe al. She said “be cause I think either he w as -- somehow the mail fr om our offic e did not
g et to him, a n d w h e n it d id g e t to h im
, h e r e s p o n d e d to u s p a s t th e ti me o f th e

. . . d e a d line for permission to appea l.”

Ba sed upon this testimony and the arg uments of counsel, the trial court found the t ri al attorney ’s perf

ormanc e was not c onstitut ionally defic ient. I t f ound the petitioner’s c laims about the cloth i n g wer e “disting uishable fr om previously determined claims only

in that the petitioner now alleg es that the state’ s loss of exculpatory evidenc e wa s intentional.” I t f ound the petitioner wa ived this iss ue for

failing to present the issue of t he st ate’ s intent previously . The c ourt also found that

no e vid e nc e e xiste d to sh ow that th e c lothin g ha d b e e n in te nti on a lly los t.

With re g ard to the pe tit ion e r’ s c la im tha t tria l c ou ns e l f a ile d to e xpla in t o h im a de qu a te ly his constitutional right to testify pursuant to Momon, the trial court found that “the petitioner’ s waiver of t he right t o testify was counseled and voluntary and that any defic iency in counsel’s pe rformance in this re sp ect was th ere fo re no t pr e jud ic ia l.” Th e tr ia l c ou rt fo un d th a t th e pe tit ion e r’ s a pp e llate

a tto rn e y no tif ie d th e pe tit ion e r o f this c ou rt ’s de c isi on on his app e a l bu t th a t th e pe tit ion e r f a ile d to-4-

respond in time to file an a pplication for pe rmission to appeal. The trial court al s o found t hat the petitioner off

ere d no evidenc e to support this alleg ation.

The pe titioner contends the tria l court er red in de ny ing his petition for post-conviction re lief. He c la ims he re c e ive d th e ine ff e c tiv e a ssi sta nc e of

c ou ns e l be c a us e his tr ia l a tto rn e y fa ile d to ra ise the issue of the state withholding B rady materia l and fa iled to inform hi m adequa tely about his rig ht to testify . Additionally , the petitioner cl ai m s h e rece ived the inef fec tive assistance of counse l beca use his appellate attorney failed to inform him of his right t o fi l e a R u le 11 application for permission to appea l to the Tennesse e Supreme Court. T h e s t at e contends the pe titioner did not

rec eive the ine ffe ctive assistanc e of counsel. I t a sserts that the trial attorney ’s eff orts to r ecove r the
p et i t i o ner’ s clothing c onstitut ed the e ffe ctive assistanc e of c ounsel and that the f ailure of trial counsel to follow Momon did not result in prejudice. Th e s t ate asserts the appe llate attorne y provided e ffe ctive assistanc e by advising the def

endant of his right to file a

Rule 11 application.

We must first address the issue of w hether the petitioner is entitled to seek se cond tier r eview with the Tenne ssee Supre me Court pursuant to Tenne ssee Supreme Court Rule 28 §9(D)( 2)(b) (i). This court has pr eviously

rec og nized that a petitioner who wa s denied the opportunityto seek sec ond tier appe llate re view bec ause of h i s o r h er at t orney ’s improper w ithdrawa l is entitl ed to a de lay ed
appea l. See St at e v . Evans, 108 S.W.3d 231 (Tenn. 2003); Pinkston v. S tate, 668 S.W.2d 676 (Tenn. Crim. App. 1984); State v. Br own, 653 S.W .2d 765 (Tenn. Crim. App. 1983) . I f an attorney

re pr e se nti ng a n in dig e nt d e fe nd a nt c ho os e s n ot t o p ur su e se c on d ti e r r e vie w, the a tt orney mus t withdraw a s counsel and notify the def endant of the withdraw al and a

bilityto proce ed pro se. See Te nn . Su p. Ct. R. 1 4. Rul e 14 pr ov ide s:

Perm is s io n f

o r le a v e to w ith d r a w a s c o u n s e l f o r a n in d ig ent party afte r an a d v er s e fina l decision in the . . . Court of Criminal Appea ls and befor e pre paration and filing of an Applica tion for Permission to Appeal in the Supreme Court m u s t b e obtained from the int e rm e diate app e llate c ou rt by fi lin g a mot ion wi th the Ap pe llate Cou rt Cle rk no t late r tha n f

ou rt e e n ( 14 ) d a y s a ft e r the int e rm e diate

c ou rt ’s e ntry

of fi na l ju dg me nt.

. . . . Upon th e filing of

a timely

motion in accord w ith the fo re g oing requi re m en t s , t h e i n t er m ed i at e a p p el l at e c o u rt , o r a n y j u d ge there of, may

summarily

g rant the m o t i o n. Upon entry of the orde r g ranting the motion to withdra w, a copythere of will be sent to the indige nt party

by the Clerk, ac companied by l etter notice to the indige nt party

of the last day within whic h to f ile an Application for Pe rm iss ion to A pp e a l.

I d.-5-

The r e c o r d r e f

le c ts th a t th e ap p e ll a te a tt o r n e y d o c u me n te d in th e f il e th a t le tt e r s w ere sent to the pe tit ion e r no tif

y ing him abo ut his ri g ht to app e a l a nd his “ g oo d s ta nd ing ” fo r a de la y e d a pp e a l. The trial attorney

acknow ledg ed on cross-e x amination that the petit ioner may not have r ece ived the letters sent to him by the appellate attorney

. Additionally
, the appellate record from the petitioner’s direc t appea l is devoid of any motions to withdraw filed by the appe llate attorne y

or any order s allowing withdrawa l. We conclude that the appellate attorney failed to follow the r equire ments of Rule 14 and that the petiti oner’ s opportunity to seek sec ond tier re view wa s terminated throug h no fa ult of his ow n. We g ra nt the pe tit ion e r a de la y e d a pp e a l to the Te nn e sse e Sup re me Cou rt fr om this

c ou rt ’s de c isi on of

De c e mbe r 6 , 2 00 2, that a ff ir me d th e pe tit ion e r’ s c on vic tio n. We d o n ot a dd re ss t h e o t h er cl ai m s ra i s ed b y t h e p et i t i o n erb u ts t ayt h e r em ai n d ero f t h es e p o s t -c o n v i ct i o n p ro ce ed i n gs pending the outcome of

the delay ed appe al. See Te nn. Sup. Ct . R. 28 § 9(D)(2) (b)( i).

CO NC LU SION

B a se d o n th e fo re g oin g a ndthe re c or d a s a wh ole
, we re ve rs e the jud g me nt o f the tr ia l c ou rt , g rant the pe titioner a dela y ed appea l, a nd stay further proce eding s pending the delay ed appea l to the Te nn e sse e Sup re me Cou rt

.

___________________________________ J OSEPH M. TI PTON, J UDGE