          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                           Assigned on Briefs December 7, 2011

              DONNA LEIGH PEARSON v. STATE OF TENNESSEE

               Direct Appeal from the Criminal Court for Davidson County
               No. 2009-D-3042 & 2009-D-3183 Cheryl Blackburn, Judge


                  No. M2011-00216-CCA-R3-PC - Filed March 23, 2012


THOMAS T. W OODALL, J., concurring in results only.

         I concur with the majority opinion in result only for the reason that the post-conviction
trial court erred by granting Petitioner a delayed appeal as to her sentence. The post-conviction
trial court filed a fifteen-page order of disposition of the post-conviction petition, setting forth
in detail its findings of fact and conclusions of law. I have carefully reviewed this order and
have found no findings of fact by the post-conviction trial court which support the granting of
post-conviction relief to Petitioner to the extent of granting a delayed appeal of the sentence
imposed upon her. In fact, I find the term “delayed appeal” mentioned only in the order’s
introduction, (“The Court, however, shall grant Petitioner the opportunity to seek a delayed
appeal as to her sentence.”) and in its conclusion (“The Court, however, shall grant Petitioner
the opportunity to seek a delayed appeal as to her sentence.”). No reasons are provided for the
granting of the delayed appeal. The proof at the post-conviction hearing was that trial counsel
informed Petitioner that he would not be representing her on appeal of her sentence, but that he
informed her she was entitled to an appeal of the sentence. Furthermore, the record reflects that
trial counsel was retained to represent Petitioner in the trial court, but had not been retained to
represent her on appeal. Petitioner filed a pro se “Notice of Appeal,” but on the advice of the
inmate “law clerks” at the correctional facility, she voluntarily dismissed her appeal. There is
nothing in the post-conviction trial court’s comments from the bench following the hearing, or
in its order on the post-conviction petition, setting forth any deficiency by the trial counsel, or,
obviously, any resulting prejudice to Petitioner as a result of deficient representation by trial
counsel regarding appeal of the sentence. It appears from the record that the post-conviction
court gratuitously granted Petitioner a delayed appeal with no constitutional basis found to grant
such relief. Trial counsel may have provided deficient representation; if so, Petitioner may have
been prejudiced thereby. However, the post-conviction court made no factual findings to either
support or reject these conclusions. Accordingly, I would reverse that portion of the order
granting a “delayed appeal” and affirm the dismissal of the Petition for post-conviction relief.

                                                     ___________________________________
                                                     THOMAS T. WOODALL, JUDGE
