IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 10, 2016

QUANYA REVELL PREWITT v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 2012-A-48 Cheryl A. Blackburn, Judge

No. M2015-02090-CCA-R3-PC – Filed March 8, 2017

The Petitioner, Quanya Revell Prewitt, filed a petition for post-conviction relief, alleging 

various claims of ineffective assistance of counsel. The post-conviction court denied 

relief, and the Petitioner appeals. Upon review, we conclude that because of the postconviction court‟s failure to comply with the mandates of section 9(D)(1)(b)(i) of

Tennessee Supreme Court Rule 28, we are compelled to reverse the denial of postconviction relief and remand for further proceedings consistent with this opinion. 

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

Case Remanded

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

David M. Hopkins, Murfreesboro, Tennessee, for the Appellant, Quanya Revell Prewitt. 

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; 

Glenn R. Funk, District Attorney General; and Megan King, Assistant District Attorney 

General, for the Appellee, State of Tennessee.

OPINION

After an April 9, 2012, the Petitioner was convicted of possession with intent to 

sell or deliver dihydrocodeinone, a Schedule III substance, in a school zone. State v. 

Quanya Revell Prewitt, No. M2012-01627-CCA-R3-CD, 2013 WL 3282869, at *1

(Tenn. Crim. App. at Nashville, June 26, 2013). The trial court imposed a sentence of 

four years with the first three years to be served at 100% and the remaining one year on 

probation. On June 26, 2013, this court affirmed the Petitioner‟s conviction on direct 
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appeal. Id. The Petitioner did not file a timely application for permission to appeal to the

supreme court.

On February 26, 2014, the Petitioner filed a timely pro se petition for postconviction relief (“first petition”). See Tenn. Code Ann. § 40-30-102(a) (providing that 

in order to obtain relief, a post-conviction petition must be filed within one year of the 

final action of the highest state appellate court to which an appeal is taken). The only 

issue specifically raised in the first petition was that “[e]vidence was not introduced to the 

State/Courts for review in this case.” On March 13, 2014, the court appointed postconviction counsel (“first post-conviction counsel”). On June 27, 2014, the postconviction court entered an order stating that the matter was before the court “on a postconviction status hearing.” In the order, the court granted the Petitioner a delayed appeal 

and noted that the “parties agreed [to] DISMISS WITHOUT PREJUDICE the postconviction proceeding.”

1

 The order stated that the Petitioner “may refile a postconviction petition after the ruling on her appeal.” 

When first post-conviction counsel filed the application for permission to appeal 

pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure, the post-conviction 

court‟s order granting a delayed appeal was not attached to the application. On October 

20, 2014, our supreme court dismissed the delayed appeal as untimely. 

On January 20, 2015, the Petitioner filed another pro se post-conviction petition 

(“second petition”), again alleging that that she was denied effective assistance of counsel 

and that “[e]vidence was not introduced on my behalf to the courts/State for review in 

this case.” On January 26, 2015, the post-conviction court found that the Petitioner had 

presented a colorable claim and appointed post-conviction counsel (“second postconviction counsel”). On April 15, 2015, second post-conviction counsel filed an 

amended post-conviction petition on behalf of the Petitioner (“amended petition”). The 

amended petition alleged that trial counsel failed to properly investigate her case, inform 

her of the charges and evidence against her, and advise her that she could either plead 

guilty or proceed to trial. The amended petition further alleged that trial counsel should 

have obtained an interpreter for a witness who testified at trial and should have objected 

to the witness‟s testimony as hearsay. The amended petition maintained that counsel was 

ineffective by failing to file a timely application for permission to appeal to the supreme 

court. Finally, the amended petition asserted that the State committed prosecutorial 

 

1 The dismissal of the Petitioner‟s timely February 26, 2014 petition arguably rendered any subsequently 

filed petitions untimely. Nevertheless, we note “that strict application of the statute of limitations may not 

deny a petitioner „a reasonable opportunity to assert a claim in a meaningful time and manner,‟ and . . . a 

strict application of the statute in this case could have this effect on the [Petitioner].” Williams v. State, 

44 S.W.3d 464, 468 (Tenn. 2001) (quoting Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000)). However, 

if the issue were raised, the strict application of the statute of limitation would appear to deny the 

Petitioner a reasonable opportunity to bring a post-conviction claim and would violate due process. Id. 
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misconduct by obtaining a superseding indictment against the Petitioner solely because 

she would not plead guilty in general sessions court and that trial counsel should have 

filed a motion to dismiss the superseding indictment.

The post-conviction court conducted an evidentiary hearing on May 27, 2015. On 

October 14, 2015, the post-conviction court issued an order, addressing the merits of the 

Petitioner‟s post-conviction claims, making numerous factual findings, and determining

that the Petitioner was not entitled to relief. The order then said:

Since prior post-conviction counsel failed to perfect 

the Rule 11 appeal, the Court again GRANTS a delayed Rule 

11 appeal. In light of the unusual posture of the case, should 

said Rule 11 appeal lead to any additional post-conviction 

issues, counsel may file a supplemental petition with the 

Court raising the additional post-conviction issues for review, 

should any arise upon the completion of the Rule 11 

proceedings. 

Tennessee appellate courts generally direct postconviction courts to hold in abeyance all post-conviction 

proceedings when a delayed appeal is warranted; however, 

given the procedural history in this case and fact that prior 

post-conviction counsel attempted that route and failed to 

perfect said appeal, the Court finds it appropriate to allow 

current Post-Conviction Counsel to proceed simultaneously 

with the Rule 11 Application and post-conviction appeal.

Thereafter, the order concluded by stating:

Accordingly, although this Court denied postconviction relief as to the issues raised in Petitioner‟s pro se

and Amended Petitions before this Court, the Court shall hold 

the post-conviction proceeding in abeyance pending the 

outcome of the Rule 11 appeal.[

2

] The Court directs PostConviction Counsel to file a notice with the Court within 

thirty (30) days of the Supreme Court‟s ruling on the Rule 11 

Application to advise the Court whether Petitioner intends to 

raise any additional post-conviction issues in a forthcoming 

 

2 On January 19, 2016, while this appeal was pending, our supreme court denied the Petitioner‟s 

application for permission to appeal.
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petition or whether Petitioner rests on her previously raised 

claims.

Following the entry of the order, the Petitioner filed a Rule 11 application and also 

filed the instant appeal of the denial of the remaining post-conviction claims. 

We note that Rule 28, section 9(D)(1)(b)(i) of the Rules of the Tennessee Supreme 

Court explicitly provides:

Upon determination by the trial court that the petitioner was 

deprived of the right to request an appeal pursuant to Rule 11, 

Tennessee Rules of Appellate Procedure, the trial court shall

enter an order granting the petitioner a delayed appeal, 

staying the post-conviction proceedings pending the final 

disposition of the delayed appeal, and providing that the order 

is final for purposes of appeal under this rule.

(Emphasis added). This court has explained that 

[t]he post-conviction court should have bifurcated the 

proceedings and conducted a hearing solely on the Rule 11 

claim. See Tenn. Sup. Ct. R. 28, § 8(D)(3). Once the postconviction court determined that the Petitioner was deprived 

of [her] right to request an appeal under Rule 11, the court 

should have granted the delayed appeal and stayed the 

remaining post-conviction proceedings until final disposition 

of the delayed appeal. See Tenn. Sup. Ct. R. 28, § 

9(D)(1)(b)(i).

DeMarcus Ant-Juan Nelson v. State, No. E2015-01247-CCA-R3-PC, 2016 WL 3563696, 

at *3 (Tenn. Crim. App. at Knoxville, June 22, 2016); see Frederick Alexander Avery v. 

State, No. M2011-02493-CCA-R3-PC, 2013 WL 451867, at *2 (Tenn. Crim. App. at 

Nashville, Feb. 6, 2013). This court has explained that by holding the remainder of a 

petitioner‟s post-conviction claims in abeyance, “the petitioner may amend the original 

petition to challenge any „new issues cognizable in a post-conviction proceeding 

result[ing] from the handling of the delayed appeal.‟” Howard Lee Coleman v. State, No. 

W2006-02601-CCA-R3-PC, 2007 WL 1651882, at *6 (Tenn. Crim. App. at Jackson, 

June 7, 2007) (quoting Tenn. Sup. Ct. R. 28, § 9(D)(3)(a)). 

Clearly, although the post-conviction court acknowledged the proper procedure for 

handling the remaining post-conviction claims while a delayed appeal was pending, the 
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court nevertheless chose not to follow the dictates of Rule 28. Our supreme court has 

explained that 

[t]here are sound reasons for not permitting a direct appeal 

and a collateral attack upon the same conviction to be 

pending simultaneously. First, judicial economy dictates that 

only one appeal should be considered at one time; if a Rule 

11 application is granted and this Court finds in favor of the 

appellant, the post-conviction petition would most likely be 

dismissed or continuously amended to reflect the on-going 

litigation. Second, the issues raised in a post-conviction 

petition cannot be ripe for review if a Rule 11 application is 

pending a decision by this Court. And finally, the issues in 

the post-conviction petition would be rendered moot if this 

Court reversed the conviction and remanded for a new trial.

Williams v. State, 44 S.W.3d 464, 469-70 (Tenn. 2001).

We conclude that the post-conviction court erred by allowing the Petitioner to 

proceed simultaneously with a Rule 11 appeal and an appeal of the post-conviction 

court‟s holding on the other post-conviction claims. Accordingly, we must reverse the 

post-conviction court‟s denial of post-conviction relief. On remand, the post-conviction 

court must allow the Petitioner to “amend the original petition to challenge any „new 

issues cognizable in a post-conviction proceeding result[ing] from the handling of the 

delayed appeal.‟” Coleman, No. W2006-02601-CCA-R3-PC, 2007 WL 1651882, at *6 

(quoting Tenn. Sup. Ct. R. 28, § 9(D)(3)(a)). Should the Petitioner raise no additional 

issues, the post-conviction court may, at that point, issue a final judgment from which an 

appeal may be taken.3 

_________________________________ 

NORMA MCGEE OGLE, JUDGE

 

3

If the Petitioner fails to file a notice with the post-conviction court or notifies the post-conviction court 

of her intent not to raise additional post-conviction issues, then no additional evidentiary hearing will be 

needed.