IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 4, 2020

ZACHARIOUS COLE v. STATE OF TENNESSEE

Appeal from the Circuit Court for Madison County

No. C-17-223 Kyle Atkins, Judge

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No. W2019-00841-CCA-R3-PC

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The Petitioner, Zacharious Cole, appeals from the order of the Madison County Circuit 

Court denying post-conviction relief from his jury convictions of attempted first-degree 

murder, especially aggravated robbery, and employing a firearm during the commission 

of a dangerous felony, for which he received an effective term of twenty-six years’ 

imprisonment. Following an evidentiary hearing, the post-conviction court determined 

that trial counsel’s advice to the Petitioner to enter a post-sentencing waiver of his right 

to direct appeal was deficient but not prejudicial. On appeal, the Petitioner argues that 

the post-conviction court erred in denying relief.1 Because the record shows that the 

Petitioner was denied the right to pursue a direct appeal based on ineffective assistance of 

counsel, this matter is remanded to the trial court for entry of an order allowing the filing 

of a motion for new trial. See T.C.A. § 40-30-113(a)(3). Accordingly, the judgment of 

the post-conviction court is reversed, and this matter is remanded for proceedings 

consistent with this opinion. 

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

and Remanded

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS, P.J., and ALAN E. GLENN, J., joined.

William J. Milam, Jackson, Tennessee, for the Petitioner, Zacharious Cole.

 

1

The Petitioner raises several other grounds of ineffective assistance of counsel for the first time 

in this appeal including counsel’s failure to meet with him sufficiently pre-trial and an alleged conflict of 

interest. Ordinarily, these issues would be waived; however, given our holding, we decline to address any 

of these issues on the merits.

06/17/2020
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Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant 

Attorney General; Jody Pickens, District Attorney General; and Al Earls, Assistant 

District Attorney General, for the Appellee, State of Tennessee.

OPINION

On October 4, 2016, the Petitioner was convicted by a jury of attempted firstdegree murder, especially aggravated robbery, and employing a firearm during the 

commission of a dangerous felony. On November 15, 2016, he was sentenced to twentysix years’ imprisonment.2

 On November 22, 2016, the Petitioner signed a “Waiver of 

Right to Appeal Sentence” in which he acknowledged that he “voluntarily and knowingly 

and without coercion has decided to waive his right to appeal the sentence of [the trial 

court].” No direct appeal was taken. Almost eight months later, on August 23, 2017, the 

Petitioner filed a pro se petition for post-conviction relief, alleging that he received 

ineffective assistance of counsel because “trial counsel came to the county jail and had 

[the Petitioner] sign a waiver of his appellate rights which the Petitioner did not fully 

understand or comprehend[, and that] [t]rial counsel told the Petitioner that if he appealed 

he would receive a greater sentence.” On the same day, the State filed a response and a 

motion to dismiss the petition for post-conviction relief. On April 15, 2019, the postconviction court held a hearing on the Petitioner’s petition for post-conviction relief. 

The Petitioner testified that he was not satisfied with trial counsel’s representation, 

that he only met with trial counsel twice prior to his trial, and that these meetings were 

“very brief.” He also stated that trial counsel did not go over any materials with him 

prior to trial. The Petitioner asked for trial counsel to be removed prior to trial, but his 

request was denied. His jury trial lasted one day, and he testified on his own behalf. The 

Petitioner did not appeal his sentence, explaining that “[trial counsel] told me that had I 

appealed my case, I would have been given more time added to my sentence. And [trial 

counsel] asked me is that what I wanted to do and of course I said no.” The Petitioner 

acknowledged that he signed a waiver of the right to appeal his sentence, which was 

entered into evidence. In hindsight, the Petitioner would have pursued an appeal.

On cross-examination, the Petitioner could not remember the trial court telling him 

that he had a right to appeal his sentence. The Petitioner said that trial counsel did not 

tell him that he had a right to appeal when she visited him in jail. He said that, at the 

time, he did not know what a waiver of a right to appeal his sentence was, and he did not 

read the waiver but only signed it following trial counsel’s explanation that he would 

receive more time if he filed an appeal. The Petitioner stated multiple times that he 

 

2

The judgments are not included in the record on appeal. We glean this information from the 

State’s response to the petition.
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understood that he was giving up his right to appeal by signing the waiver. He said that 

no one forced him to sign the waiver. On redirect examination, the Petitioner stated that 

he was nineteen years old at the time of his trial, and he had never gone through a jury 

trial before. He stated that he only signed the waiver because of what trial counsel told 

him.

Trial counsel did not testify at the post-conviction hearing. Instead, John 

Hamilton, a representative from the Public Defender’s Office for the 26th Judicial 

District, testified that he reviewed the Petitioner’s file prior to the hearing. He stated that 

the notations on the Petitioner’s file indicated that trial counsel had met with the 

Petitioner several times prior to trial. He also reviewed the Petitioner’s signed waiver.

He said he had “no idea” why trial counsel would encourage the Petitioner to waive his 

right to appeal. He “guessed” that the Petitioner could receive more time after appeal, if 

his sentences were ordered to be served consecutively. However, when asked if there 

would be a benefit to waiving the right to appeal, he stated, “I don’t know that there is, 

you know. It’s a pretty long sentence.” On cross-examination, he confirmed that the 

Petitioner admitted to shooting the victim during an interview. He stated that he did “not 

really” see any prejudice stemming from trial counsel’s representation. On redirect 

examination, he said that he would “generally agree” that a longshot was worth taking on 

appeal.

In denying relief, the post-conviction court stated, “I tend to agree with [] 

Hamilton in that I don’t understand what the benefit of waiving the appeal would be. So 

I’m not certain that he has [not] shown by clear and convincing evidence that . . . that 

performance was deficient.” Nevertheless, in its written order, the post-conviction court 

dismissed the petition and reasoned as follows:

After hearing the testimony[,] the Court cannot understand why a waiver of 

appeal would be in the best interest of the [Petitioner] but the facts of the 

case were such that the victim testified and the [Petitioner] admitted to 

shooting the victim and to taking his car. There is no showing of any 

prejudice even if waiving the appeal arose to the level of ineffectiveness[,]

there was no evidence of prejudice which must also be proven by clear and 

convincing evidence. There is certainly not [a] showing of prejudice. This 

issue is overruled. 

On May 14, 2019, the Petitioner filed a timely notice of appeal, and this case is 

now properly before this Court for our review. 

ANALYSIS
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On appeal, the Petitioner argues that the post-conviction court erred in denying his 

petition for post-conviction relief. He asserts that trial counsel’s representation was 

deficient and that he was prejudiced by this deficiency because he “deserved the 

opportunity” to appeal his case. In response, the State contends that the post-conviction 

court properly denied relief because the Petitioner failed to establish that he suffered any 

prejudice from trial counsel’s representation and that prejudice cannot be presumed in 

this case.

Post-conviction relief is only warranted when a petitioner establishes that his or 

her conviction or sentence is void or voidable because of an abridgement of a 

constitutional right. T. C. A. § 40-30-103. The right of a person accused of a crime to 

representation by counsel is guaranteed by both the Sixth Amendment to the United 

States Constitution and article I, section 9, of the Tennessee Constitution. The right to 

counsel includes “‘the right to the effective assistance of counsel.’” Garza v. Idaho, 139 

S. Ct. 738, 743-44 (2019) (citing Strickland v. Washington, 104 S. Ct. 2052 (1984) 

(quoting McMann v. Richardson, 90 S. Ct. 1441 (1970))). Under Strickland, a defendant 

who claims ineffective assistance of counsel must prove (1) that counsel’s representation 

fell below an objective standard of reasonableness, and (2) that any such deficiency was 

prejudicial to the defense. Id. (internal citations and quotations omitted).

“In Tennessee, a criminal defendant has the right to one level of appellate 

review.” Serrano v. State, 133 S.W.3d 599, 604 (Tenn. 2004) (citing Tenn. R. App. P. 

3(b) (2003); Collins v. State, 670 S.W.2d 219, 221 (Tenn. 1984)). “Because a defendant 

has a statutory right to appeal, an attorney has an obligation to consult with the defendant 

about an appeal following a conviction.” Arroyo v. State, 434 S.W.3d 555, 559 (Tenn. 

2014). However, the law does not require a defendant to appeal a criminal conviction; 

accordingly, a defendant may waive his right to appeal if he so desires. 

Serrano, 133 S.W.3d at 604. Rule 37(d) of the Tennessee Rules of Criminal Procedure

provides that when a defendant chooses to waive the right to a direct appeal, counsel for 

the defendant shall file a written waiver of appeal, signed by the defendant, which clearly 

reflects that the defendant was aware he had the right to appeal and was voluntarily 

waiving it. Id.; see also Carter v. State, 102 S.W.3d 113, 119 (Tenn. Crim. App. 2002); 

James Carroll v. State, No. M2017-01075-CCA-R3-PC, 2018 WL 5793571, at *7-8 

(Tenn. Crim. App. Nov. 5, 2018). “Any purported waiver of the right to appeal is to be 

carefully scrutinized.” Id. (citing Collins, 670 S.W.2d at 221; see also United States v.

Cunningham, 292 F.3d 115, 117 (2d Cir. 2002)). 

In addition, “[w]hen the accused has been denied the right to appeal, he is not 

required to ‘show some likelihood of success on appeal’ or specify the issues which 

would have been raised if an appeal had been taken timely before relief will be granted.”
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Bowling v. State, No. 1091, 1987 WL 5961, at *3 (Tenn. Crim. App. Feb. 3, 1987)

(internal citations omitted); see also Commonwealth v. Alvarez, 69 Mass. App. Ct. 438, 

443, 868 N.E.2d 929 (2007) (defendant who loses right to direct appeal due to 

ineffectiveness not “required to establish any colorable appellate issue as a prerequisite to 

recovering his lost appellate rights”)). Rather, when a defendant establishes that he has 

been denied the right to pursue a direct appeal based on the ineffective assistance of trial 

counsel, our law provides him the opportunity to raise all claims that could have been 

raised in a direct appeal had it been properly filed. See T.C.A. § 40-30-113(a)(3). If the 

motion for new trial is denied, then the defendant is entitled to a delayed appeal. Id.

The crux of the Petitioner’s claim is that he was denied his right to pursue a direct 

appeal based on ineffective assistance of counsel; specifically, trial counsel’s erroneous 

advice that his sentence would be increased if he did so. Significantly, the express 

language of the appellate waiver limited only the Petitioner’s right to appeal his sentence. 

It does not preclude a direct appeal of any other aspect of the Petitioner’s case. The 

Petitioner signed the waiver a week after he was sentenced to twenty-six years’ 

imprisonment. At the time, the Petitioner was nineteen years old and had no prior 

experience with the criminal justice system. He signed the waiver without reading it “on 

the word” of trial counsel. There was no motion for new trial filed, and no indication that 

the trial court reviewed the Petitioner’s waiver of appeal with him. See Tenn. R. Crim. P. 

37, Adv. Comm’n Comments (“The Rule requires that the defendant must be advised of 

pertinent appellate rights. In all cases if an appeal is to be waived, this must be put on 

record.”). The record also does not show when or under what circumstances trial counsel 

was permitted to withdraw from the Petitioner’s case. Although a public defender opined 

that the twenty-six-year sentence in this case could conceivably get worse after an appeal, 

he could not provide a legitimate reason why trial counsel advised the Petitioner to enter 

an appellate waiver. The post-conviction court agreed and expressed concern as to what 

benefit, if any, there was for the Petitioner to enter an appellate waiver after he had been 

convicted and sentenced. 

Upon our review, the record does not preponderate against the determination of 

the post-conviction court in finding that trial counsel was deficient in advising the 

Petitioner to waive his direct appeal. See e.g. State ex rel. Green v. Henderson, 220 

Tenn. 551, 554, 421 S.W.2d 86, 87 (1967) (noting that “counsel for an indigent defendant 

who desires to appeal is without authority to make a judgment on the merits of the appeal 

to the point where his judgment controls whether there will, in fact, be an appeal”). 

Because the Petitioner’s appellate waiver did not comply with Rule 37(d), we are unable 

to conclude that it was knowingly and voluntarily entered. Accordingly, the appellate 

waiver is not enforceable and has no effect. 
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In denying relief, the post-conviction court applied the traditional Strickland

framework, which required the Petitioner to demonstrate prejudice by clear and 

convincing evidence. This is understandable because Garza was released on February 27, 

2019, and the post-conviction hearing was held on April 15, 2019. The post-conviction 

court recalled the Petitioner’s trial, noted his confession, and determined that a direct 

appeal would not have changed the outcome of his case. However, in Garza, the United 

States Supreme Court held that in certain Sixth Amendment contexts prejudice is 

presumed “when counsel’s constitutionally deficient performance deprives a defendant of 

an appeal that he otherwise would have taken.” 139 S. Ct. at 744 (citing Roe v. FloresOrtega, 528 U.S. 470 (2000)). This presumption applies even when the defendant has 

signed an appeal waiver. Id. The majority in Garza began by recognizing that “no appeal 

waiver serves as an absolute bar to all appellate claims[,]” and that the term “appeal 

waiver” can “misleadingly suggest a monolithic end to all appellate rights.” Id. Claims 

that may be outside the scope of an appellate waiver include challenges to the defendant’s 

sentence or conviction, claims based on prosecutorial misconduct, or arguments based on 

changes in law. As relevant here, challenges to the knowing and voluntary nature of a 

guilty plea and the validity of the appellate waiver itself are “almost universally viewed 

as unwaivable[.]” 

An appeal waiver does not complicate the application of the presumption of 

prejudice rule because under the traditional Strickland framework, the Court “normally 

applies a strong presumption of reliability to judicial proceedings and require[s] the 

defendant to overcome that presumption by showing how specific errors of counsel 

undermined the reliability of the finding of guilt.” Garza, 139 S. Ct. at 747 (citing Roe v. 

Flores-Ortega, 528 U.S. at 482 (internal citations omitted)). However, the denial of the 

entire judicial proceeding itself, which a defendant wanted at the time and to which he 

had a right, demands a presumption of prejudice. Id. “Put simply, we cannot accord any 

presumption of reliability to judicial proceedings that never took place.” Id. (internal 

citations and quotations omitted). So long as a defendant can show that “counsel’s 

constitutionally deficient performance deprived him of an appeal that he otherwise would 

have taken, courts are to presume prejudice with no further showing from the defendant 

of the merits of his underlying claims.” Id.

Because the Petitioner testified that he would have pursued a direct appeal but for 

the deficient advice of trial counsel, we must presume prejudice. Accordingly, we 

reverse the judgment of the post-conviction court denying relief, and we remand this case 

for entry of an order allowing the Petitioner to file a motion for new trial pursuant to 

Tennessee Code Annotated section 40-30-113(a)(3).

CONCLUSION
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Following our review, we conclude that trial counsel was ineffective in advising 

the Petitioner to waive his right to appeal. Based on her erroneous advice, the appellate 

waiver was unknowingly and involuntarily entered, and the Petitioner was deprived of his 

right to pursue a direct appeal. Accordingly, the judgment of the post-conviction court is 

reversed, and we remand the Petitioner’s case for proceedings consistent with this 

opinion. 

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 CAMILLE R. MCMULLEN, JUDGE