# FILED August 12, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON MARCH 1999SESSION

ROD NEY L. JEF FRIES , ) C.C.A. NO. 02C01-9807- CR-00214 ) Appe llant, ) ) SHELBY COUNTY V. ) ) ) HON . JAME S C. B EASLE Y, JR., STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (POST CON VICTIO N)


### SEPARA

TE CONCURRING OPINI ON
I co ncur in the result reac hed in the majority op inion auth ored b y Presiding Judge G ary R. W ade. I write separa tely, however, to expre ss my con cern thatappointed counselfor the Appel lant at t he trialcou rt level did not pro ceed to represent

Appellant in the a ppeal to this court from th e trial co urt’s dismissal of the petitions fo r post-co nviction relief.

In this case, the Appellant filed pro sepetiti ons for post-convict ion reli ef attacki ng each conviction in a separate petition. On August 11, 1998, the trial court entered an order nunc protunc

for March 18, 1998 appointi ng counsel to r epresent Appellant. The order provides as f ollows:
Be it remembered that the C ourt ascertai ned in the absence of the Pe titi o ner, tha t the ab ove P etitione r is financ ially unable to employ counse l as a resu lt of his presentincarcerat ion, and t hat it i s incumbent upon the Court to appoi nt cou nsel to repres ent sa id Petitio ner’s interest s in his absen ce.-2- And further , the Co urt is of th e opin ion tha t the Pu blic Defenderof Shelby

Coun ty, Tennessee, should not be appointed to represent the Petit ioner herei n, for good cause shown
. IT IS THEREF OR E ORDERED, A DJUDGED AND DECREED that[ ] Monica Simmons, a licens ed Atto rney in the State of Tenness e e, be appointed to represent the Petitione r in the abo ve-captio ned ca use.

The record ref lects t hat after the trial court

made its findings of f

act and ruling dismissing the petiti ons on the record in open court , it r equested counsel f

or the Appe lla nt to draft the orde r reflecting th e court’s ru ling. Cou nsel agre ed to
com ply with thi s request. The order was entered. There was no request by counsel to withdraw f rom further representat ion of Appell ant. Appell ant fil ed a pro senotice of appeal. While no moti on was fil ed by Appellant for ap pointmentof counsel on appe al, he did type i n “*ATTORNEY REQ UESTED*” at the bottom of t he front page of the “Doc keting S tateme nt” filled ou t by him and re turned to the c lerk of th is court. The “Docket in g Statement” i s not requi red by any rul e of procedure or rule of any court, but is sent

by the clerk of theappellate courts to app ellants in orde r to obta in informa tion abou t cases.

In any even t, Appellan t did not brin g to the atte ntion of this c ourt b y motion, any des ire to have counsel appointed to re present him on appea l. However, in cases where an attorney is p r operly ap pointed to repres ent a pe titioner in pos tconvicti on proceedings i n the tri al court, I feel that it is incumbent u pon the trial court and appointed counselto ens ure that couns el remains at torney of

record in t he direct appealof the di smissal of the fir st post-convicti on petiti on, unless appoi nted counsel is pr

operly permitted to withdraw and other counsel is ap pointed.-3- Tenn. Sup. C t. R. 28, § 10(a) states that “[a]n appeal f rom the dismissal
or denial of a post -conv ic tion petition shal l be in accor dance with t he Tennessee Rules of Appellate Procedure.” Rule 18(a) of the Tennes see Ru les of Ap pellate Proced ure provid es the follo wing:

A party who has be en perm itted to proceed in an action in the trialcourt as a poor person (which includes a perso n who has been permitted to proce ed t here a s one who is financ ially unab le to obtain adequate defense i n a criminal case) may proceed on appeal as a poor person unle ss, before or after the ap peal is taken, th e trialcourt fi nds the party is not entitl ed so to proceed, in which event the t rial court sha ll state in writing th e reaso ns for suc h finding.

In the Post-Convi ction Procedur e Act, Tennessee Code Annotated section 40-30-215 states that “[ i]ndigenc y shall bedeter mined and coun sel and cou rt reporters appointed and reimbursed as now provided for cri minal and habeas corp us cases by ch apter 14, parts 2 a nd 3 of this title.”

Tenn es see Code Annotated secti on 40-14-205 all ows an attorney appointed by the trialcourt to withdraw as counsel of record upon good cause shown, but requires t he trialcourt to i mmediately appoi nt another at torney i n the former attorney’s pl ace. Furthermore, Tennessee Code Annotated sect ion 40-14- 203, made app li cabl e to p ost- convi cti on cas es by Te nnes see Code Annotated section 40-30-215, ent itles a petiti oner to appointed counsel on the di rect appeal from the denial of a first petition for p ost-con viction relief.

Desp ite the failure o f the trial court a nd app ointed co unsel in th e postconvicti on procee dings to ensure that Appellant was r epresented by couns el in this directappe al, the parti cular fac ts of thi s case, in my opi nion, do not just ify a r eversal-4-

of the trial c ourt’s o rder, o r appo intme nt of co unse l to file a su bstitute d brief o n beh alf of Appellant in thi s court. Appellant’ s brief was adequate to convey his arguments. The proofin the record overw helm ingly jus tifies the affirma nce o f the trial c ourt’s judgm ent dism issing the petitions for p ost-con viction relief.

Most cases, however, would require, at a minimum, that counse l be appointed to fil e a substit uted brief on app eal. Under normal cir cumstances, the State would need to file a b rief in res pons e th eret o. Of course, th e resultant delay in disposit ion of post-convict ion case s wou ld be contrary to the prompt d isposit ion of post-conviction cases and the admini strati on of just ice.

I am authorized to state th at both Presi ding Judge Wad e a nd Judge Tipton joi n in with me in this conc urring opi nion.

____________________________________ THOMAS T. W OODALL, Judge