1 Court of Appeals Rule 10(b): Th is Co urt, with the c onc urren ce of a ll judge s partic ipating in the cas e, may affirm, rev erse o r mo dify the act ions of t

he t ria l cou rt bymemorandu m opini on when a for mal opi nion woul d h ave no preceden tial

value. When a case is decided by memo randum opinion it shallbe design ate d “MEMORANDU M OPIN IO N,” shall not be published, and shall not be cited or relied on for any
reaso n in a sub sequ ent unre lated c ase. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs A ugust 11, 2003 KIM S. H ICKERS ON v. A NDREW JACKSO N DEA RING, III Appeal from the Circuit Court for Coffee County No. 31974 L. Craig Johnson, Judge

No. M2002-02210-COA-R3-CV - Filed August 27, 2003

This is a malpract ice a ction filed by Appellan

t again st his crim

inal def ense att orney in a case resulting in his conviction by a Coffee County jury

of selling cocaine a Class C felony

. While this civilcase was pendingon appeal the underly ing criminal conviction of Appellant was affirmed by the Court of Cr

iminal App eals and the Supreme Court denied his application to appeal. Based upon Gibson v. Trant , 58 S.W.3d 103 (Tenn.2001), we affirm the action of the trial court in dismissing the case. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirme d and Rem anded
W IL LI AM B. C AIN , J., delivered the opinion of the co urt, in which W IL LI AM C. K OCH , J R ., and P ATRIC IA J. C OTT RELL , JJ., joined. Kim S. Hickerson, Wartburg, Tennessee, Pro Se.
Larr y F. W all ace , J r., Sh elb yvil le, Ten nes see , fo r th e ap pel lee , An dre w J ack son Dea rin g, III.
MEMORAN

DUM OP

INION 1
Plaintiff is an inmate in the Department of Corre ctions. Defendant is an attorney practicing law primarily in the 17th Judicial District of Tennessee. Plaintiff wa s indicted on April 18, 1997 by the Coffee C ounty

grand jury for selling less than 0.5 gra ms of cocaine. He then employ ed Defendant

to represent

him in the trial of the case. On December 15, 1997, Plaintiff was tried a nd found guilty of the unde rlying c rimina l offens e and sentenced to fifteen y ears in prison and a-2-

$100,000 fine. This sentence was imposed on January 23, 1998. On Febr uary 26, 1998, Defendant filed a Motion for New Trial on behalf of Plaintiff in the criminal case and the Motion was overruled on April 13, 1998.
Defendant

did not file a notice of appeal on behalf of Appellant, nor file a wr itten waiver of Appellant’s right to appeal as required by rule 37 of the Te nness ee Rules of Criminal Procedure. After the time for appeal expired, Kim Hickerson filed a Petition for Post Convict ion R elief and Honorab le Robert S. Pe

ters of the Win chester

bar wasappointe d to repr esent him in the post conviction proceeding, and on May 16, 2000, the trial court granted a delay ed appeal to Mr. Hickerson and appointed Robert S. Peters to represent Hickerson on appeal. Proper notice of appea l was filed on May 22, 2001.
On May 6, 2002, Plaintiff filed, pro se, a Com plaint for Malpractice in thi s case a gainst Defendant Dearing.
On June 4, 2002, Defendant Dearinganswered the Complaint deny ing that he had

ever been retained by H

ickerson for the purposes of appeal throug h the Court of Criminal Appeals. On July 12, 2002, Plaintiff Hickerson filed a Motion for Summary Judgment in the malpractice action. On Augu st 12 , 2002 , Defen dant filed a Moti on to Dism iss as serti ng:
1. Th e plain tiff still has a pending appeal in the Court of Criminal Appeals , Case number: M2001-02072-CCA-R3-CD. This matter is on brief and no opinion has been issued as of August 9, 2002, and theref ore its not ripe for disposition

nor can w e answe

r the pla intiff’sMotion for

Summary

Judgemen

t. 2. Gi bson v. Trant, 58-S.W.3d, 103 (Tenn.2001), stands for th e proposition that a criminal plaintiff cannot maintain an action for cr imi nal legal malpractice. This case

affirmed the cas e of Gibson v. Trant, 20 00 Tenn.A pp. Le xis 188 (Ct.App.2000). 3. In Trant, supra , that court hel d that in order to maintain a claim for legal malpractice ari sing out o f a criminal convi ction, the plaintiff must first obta in post-conviction relief from the underl yingcriminal conviction to establish the necessary element of causation. Here the plaintiff has clearly not show[n] th

is to be the case.
While this Motion i s captioned as a Moti on to Dismis s, the pra ye r for re lief ther ein was to stay the proceedings pending the outcome of the Court of Criminal Appeals onHickerson’s direct appeal of the criminal case. On Sep tembe r 4, 20 02, t he tri al cou rt dis miss ed the Comp laint in th is cas e hold ing:
This matter c ame on to b e heard on Augu st

30, 2002, upon plaintiff’s motion for summary judgme

nt and defendant’s motion to dismiss. Plaintiff sued defendant-3-

for legal malpractice arising f romdefendant’s representation of plaintiff in a criminal case. Plaintiff

was convicted in h

is criminal

case and after

filing a petition for postconviction relief, alleg ing ineffective assistance of counsel; plaintiff was g ranted a delayed appeal. Plaintiff’s direct a ppeal wa s pending

at the time

of filing of this action, and is still

pending in the Cour

t of Crimi n al Appea

ls. Plaintif

f mistake nly relied u pon the g ranting of a dela ye d appea l in his criminal cas e as esta blishing his right to sue his criminal defense attorney for legal malpractice. Defendant

filed a motion to dismiss stating that plaintiff can not established (sic) c ausat ion i n his cause o f acti on, ci ting Gibson v. Trant , 58 S.W.3d 10 3 (Tenn .2001) (plaintiff must first obtain post-conviction relief form the underly ing criminal convicti on in orde r to estab lish th e neces sa ry element of causation). Alth ough plaintiff

initially filed a p etitio n for post-conviction relief, the trial court entered a delayed appeal to the Court of Criminal A

ppeal of the criminal judg ment, notfrom the underlying

criminal conviction. Defendant’s motion is well taken and is therefore granted.
Defend ant filed

a timely appeal.
On June 2, 2003, Appellee filed in this Court a motion pur suant to Tennessee Rule of Appellat e Procedure 14 for this Court to consider post-judgment facts attaching thereto copies of the unanimous decision

of the Te nnessee Court of A

ppeals in State of Tennessee v. Kim Hickerson , No. M2001-02072-CCA-R3-CD, released October 23, 2002, affirming the conviction of Kim Hickerson and affirming the

action of the trial court in sentencing him as a caree r offender. Also attached as an exhibit to the motion i s the per curiam denial by the Tennessee Supreme Court of Hickerson’s application to appeal the criminal conviction issued under date of Marc h 3, 2003. Further exhibited to the motion is the trial court order of March 31, 2003, spreading the mandate, judgment, and opinion up on th e M in ut es of th e C ir cu it Co ur t o f C of

fe e C ou nt y, Tenness ee. The motion toconsider post-judgment facts was granted.
The opinion of t he Court o f Criminal Appealsdisclose s that on October 25, 1996, Kim Hickerson sold cocaine to an undercover agent. The jury

convicted him and th

e convic tion was in all respects affi

rmed. As t

o sentencing, the

Court of Cr

iminal App eals’ op inion disc loses:
Fi na ll y, the Appel lant argues that he was improperly sentenced as a career offender. With respect to class C felonies, a defendant may be sentenced as a career offender if he has “any

combination of six (6) or more class A, B, or C prior felony convictions.” Tenn.Code Ann. § 40-35-108(a)(1). Howeve r, “[c]onvi cti ons for multiple felonie s committe d as part of a sing le cours e of conduct within twenty-f our (24) hours constitute one (1) conviction for the purpose of determining prior convictions.” Id.

§ 108(b)(4). Appellant asserts that because onApril 30, 1993 he receivedsix felony convictions for selling coc aine, the convictions should not be aggrega ted so as to cl assify

him as a career offender . However, the presentence report reflects that each

of the six convictions is based on conduct that occurred on-4-

separa te dates, e ach mo re than twenty- four hours apart. Therefore, the tr ial court pr operly consider ed each of the six co nvictionsdated Ap ril 30, 199 3 as a separat e conviction and properly

sentenced Appellant as a caree r offender. Thi s is sue is without me

rit. Appellan tasserts that because on his Petition for Post Conviction Relief he was gra nted a delayed appeal, the rule

in Trant , 58 S.W.3d 103 (Tenn.2001) is inapplicable. Appellant is mistaken.
In Trant , the supreme court held: “Based on principles of equity, tort

law, post-conviction law, and public policy, we hold that a c riminal defendant must obtain post-conviction relief in order to maintain a

legal malprac tice cla

im against his def

ense lawyer.” 53 S.W.3d 103, 116 (Tenn.2001). Hickerson has obtained no r elie f from the underly ing conviction. All he obtained was a delay ed appeal which was perfected for him by appointed counsel and his conviction was in all res pects affirmed. He has not alleg ed and ind eed can not alleg e that he

has rec eiv ed any relief

from the judgment of conviction or from his sentence as a ca reer offender.
The Supreme

Court of Tennessee addressed the controlling issue a nd made clear that a per so n co nvict ed of a criminal offense must receive re lief from his criminality befor e he can maintain a ma lp ra ct ic e a ct io n a ga in st hi s a tt or ne y.

The dilemma of

proving causation is not

simply a matter of the co mplexity of the task facing jurors. Rather, it highlights a basic, theoretical distinction between civiland crim

inal malpr

actice actions t hat , in terms o f the ca

usation r equirem ent, strongl y suppor ts treating these cases differe ntly. The California Supreme Court discusse d the issue

as follow s: In a civil ma

lpractic e action , the focus is solely on the defendant attorney ’s alleged error or omission; the plaintiff’s conduct is irrelevant. In the criminal malpractice context by contrast, a defe ndant’s own criminal act remains the ultimate sourc e of this predicament irrespective of counsel’s subseque nt negligence. Any harm suff ered is not “only because of” attorn ey err or but principally due to the client’ s antecedent criminality

. Wiley , 19 C al.4th

532, 79 Cal .Rptr.2d 6 72, 966 P.2d 983, 988; see also Berringer , 758 A.2d at 597 (“If a pote ntial criminal plaintiff is unsuccessful in obtaining relief from convicti on, then it

would seem that the attorney ’s conduct was not the proximate

cause of the convi ction or in

jury .”); Rodriguez , 609 N.W .2d at 373; Peeler , 909 S.W.2d at 497. Therefore, the Court in Wiley concluded, “it

is not at all difficul tto defend a di fferent rule because cr iminal prosecution takes place in a signific antly

different procedural context, ‘and as a re sult the elements to sustain a cause of action

must likewise differ.’ ” Wiley , 19 Cal.4t h 532, 79 Cal.Rptr.2d 672, 966 P .2d 98 3, 988 (quot ing Bailey , 621 A.2d at 114).
Trant , 58 S.W.3d 103, 111-12 (Tenn.2001).-5-

As Hickerson does not and indee d cann ot all ege in his malpractice action that he has received anyrelief fr om either

his conviction or his s entence , his Compla int fails to

state a c ause of a

cti o n under Trant , 58 S.W.3d 10 3 (Tenn. 2001) an d the tria l court pr operly dismissed h

is Complain

t. Judgment of the trial court is in all respects affirmed and costs of the c ause areassessedto Appellan t.

___________________________________ WILL IAM B. CAI

N, JUDGE