        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 post-
conviction 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 post-
conviction 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
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 post-
conviction 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 post-
conviction counsel (“first post-conviction counsel”). On June 27, 2014, the post-
conviction court entered an order stating that the matter was before the court “on a post-
conviction status hearing.” In the order, the court granted the Petitioner a delayed appeal
and noted that the “parties agreed [to] DISMISS WITHOUT PREJUDICE the post-
conviction proceeding.”1 The order stated that the Petitioner “may refile a post-
conviction 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 post-
conviction 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.
                                                      -2-
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 post-
              conviction 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 post-
              conviction 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 Post-
              Conviction 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.

                                             -3-
              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 post-
              conviction 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

                                            -4-
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.
                                                      -5-
