                                                                                          01/24/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                 Assigned on Briefs December 18, 2018 at Knoxville

               ANTONIO HOWARD v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                   No. 12-02872 James M. Lammey, Jr., Judge



                             No. W2018-00786-CCA-R3-PC



The Petitioner, Antonio Howard, filed a petition for post-conviction relief, alleging,
among other things, that trial counsel was ineffective for failing to file a timely motion
for new trial. After a review of the record, we hold that the Petitioner’s trial counsel was
deficient in this regard and that the Petitioner was presumptively prejudiced by the
deficiency. Therefore, we reverse the judgment of the post-conviction court denying the
petition and remand this case with instructions to that court that it grant the Petitioner a
delayed appeal, beginning with the right to file a delayed motion for new trial.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court
                           Reversed; Case Remanded

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ALAN E. GLENN, JJ., joined.

Patrick E. Stegall, Memphis, Tennessee, for the Appellant, Antonio Howard.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd and Jamie
Kidd, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                    OPINION
                              FACTUAL BACKGROUND

       The Petitioner was convicted by a jury of six counts of aggravated rape, one count
of especially aggravated robbery, two counts of aggravated robbery, and three counts of
aggravated assault. State v. Antonio Howard, No. W2014-02488-CCA-R3-CD, 2016
WL 3131515, at *1 (Tenn. Crim. App. May 26, 2016). The Petitioner received a total
effective sentence of 124 years for these convictions. Id.

       A full synopsis of the facts supporting the Petitioner’s convictions was provided
by this court on direct appeal. See Howard, 2016 WL 3131515, at *1-5. Additionally,
the Petitioner raised the following issues for our review on direct appeal: (1) the evidence
was insufficient to support his convictions, and the trial court erred by denying the
Petitioner’s motion for judgment of acquittal; (2) the trial court erred by imposing the
maximum sentence within the applicable range and imposing consecutive sentencing; and
(3) the trial court erred by allowing a co-defendant to testify wearing “street clothing,” by
allowing a victim to testify to “prejudicial, irrelevant and inflammatory information,” and
by not permitting the Petitioner to cross-examine a State’s witness about the substance of
her report. Id. at *1. This court addressed the Petitioner’s sufficiency and sentencing
issues and found those to be without merit. Id. at *5-11. Furthermore, plenary review of
the remaining alleged errors was waived because trial counsel failed to file a timely
motion for new trial. Id. at *12. No plain error analysis was conducted. See id.

       The Petitioner filed a pro se petition for post-conviction relief on December 6,
2016, alleging numerous grounds of ineffective assistance of counsel and prosecutorial
misconduct. As relevant on appeal, the Petitioner argued that trial counsel was
ineffective for failing to file a timely motion for new trial, “thus procedurally barring
[the] Petitioner from pursuing meritorious issues on appeal, thereby failing to subject the
State[’s] case to adversarial scrutiny on appeal.” The Petitioner cited to Wallace v. State,
121 S.W.3d 652 (Tenn. 2003), and submitted that the record established that he clearly
“intended to file a motion for new trial.” The Petitioner requested relief in the form of a
new trial. Although counsel was appointed for the Petitioner on February 28, 2017, no
amended petition was filed by counsel.1 Instead, the Petitioner pro se filed an amended


1
 We note that post-conviction counsel failed to follow Tennessee Supreme Court Rule 28 section 6(C).
That rule provides,

                 (2) Appointed or retained counsel shall be required to review the pro se petition,
        file an amended petition asserting other claims which petitioner arguably has or a written
        notice that no amended petition will be filed, interview relevant witnesses, including
        petitioner and prior counsel, and diligently investigate and present all reasonable claims.

                 (3) Appointed or retained counsel shall file the certificate of counsel set forth in
        the appendix within thirty (30) days of either being retained or appointed to represent
        petitioner, except for good cause shown.

However, “there is no constitutional entitlement to the effective assistance of counsel in a post-conviction
proceeding.” Frazier v. State, 303 S.W.3d 674, 680 (Tenn. 2010). Moreover, our supreme court has
stated that, while Tennessee Supreme Court Rule 28 section 6(C)(2) and section 6(C)(3) “set forth a
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petition on January 3, 2018, contending that he had “new and reliable evidence” of his
innocence because the Tennessee Bureau of Investigation report “demonstrate[d] that [the
Petitioner’s] DNA did not match the DNA that was found on [the] victim [L.G.],2 but
[was] rather that of co-defendant Leon Denton.” The Petitioner further asserted “that the
trial court should have utilized the thirteenth juror rule” because the “weight of the
evidence went against the jury’s verdict[.]”

        A hearing on the pro se petitions was conducted on March 27, 2018. We will
recount only the facts relevant to the issue presented on appeal. At the hearing, trial
counsel was asked why he failed to file a timely motion for new trial in the Petitioner’s
case. Trial counsel explained that it was simply a calendar calculation error that resulted
in the motion’s being one or two days late.3 Trial counsel claimed that he arrived in court
with a motion “in hand” only to learn that the time for filing had passed. Trial counsel
acknowledged that the failure to timely file a motion for new trial resulted in the waiver
of all issues except for sufficiency of the evidence and sentencing. He agreed that any
additional issues were reviewable for plain error only. Trial counsel opined that, even if
the Petitioner’s issues had been properly raised, they would not have entitled him to relief
because the “proof in the matter was so overwhelming[.]”

        The Petitioner testified that he did not understand the motion for new trial process
and that trial counsel never explained it to him. In addition, the Petitioner claimed that
trial counsel did not discuss with him what issues would be raised on appeal. According
to the Petitioner, trial counsel sent him a letter stating that the Petitioner’s appeal had
been denied, and the Petitioner never heard from trial counsel again.

       Post-conviction counsel argued that trial counsel was ineffective because the
Petitioner “was denied three possible grounds on appeal[.]” The prosecutor relayed that,
in addition to sufficiency of the evidence and sentencing, “at least two” of the Petitioner’s
issues were reviewed on direct appeal for plain error. The prosecutor further maintained
that, even if the additional issues had been properly raised by trial counsel, those issues
would not have entitled the Petitioner to relief. Accordingly, the prosecutor asserted that
the Petitioner had failed to establish prejudice.



minimum standard of service to which post-conviction counsel is held,” they “do not provide any basis
for relief from a conviction or sentence.” Id. at 681.
2
    It is the policy of this court to refer to victims of sexual crimes by their initials.
3
  To assist in the resolution of this proceeding, we take judicial notice of the appellate record from the
Petitioner’s prior direct appeal. See Tenn. R. App. P. 13(c). No motion for new trial is present in that
record.
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       The post-conviction court denied the Petitioner’s request for post-conviction relief
orally from the bench, concluding that, while trial counsel was deficient for failing to
timely file a motion for new trial, the Petitioner was not prejudiced by that deficiency in
light of the “overwhelming” proof at trial and the fact that the Petitioner “still got an
appeal.” An order was entered to that effect on March 29, 2018. This timely appeal
followed.

                                       ANALYSIS

       The Petitioner argues that trial counsel’s failure to timely file his motion for new
trial was deficient and that, if a motion been timely filed, then his issues “would have
been reviewed under a different, more favorable standard.” The burden in a post-
conviction proceeding is on the petitioner to prove his allegations of fact supporting his
grounds for relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f);
see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). On appeal, we are bound
by the post-conviction court’s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn.
2001). Additionally, “questions concerning the credibility of witnesses, the weight and
value to be given their testimony, and the factual issues raised by the evidence are to be
resolved” by the post-conviction court. Id. Because they relate to mixed questions of
law and fact, we review the post-conviction court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo
standard with no presumption of correctness. Id. at 457.

        Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger, 279 S.W.3d at 293 (citing U.S. Const. amend. VI; Cuyler v. Sullivan,
446 U.S. 335, 344 (1980)). When a claim of ineffective assistance of counsel is made
under the Sixth Amendment to the United States Constitution, the burden is on the
petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see
Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). “Because a petitioner must establish
both prongs of the test, a failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance claim.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been applied to the right to
counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989).

      Deficient performance requires a showing that “counsel’s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
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“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. When a court
reviews a lawyer’s performance, it “must make every effort to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). Additionally, a
reviewing court “must be highly deferential and ‘must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.’”
State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466 U.S. at
689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to
tactical choices only applies if the choices are informed ones based upon adequate
preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)).

       Generally, as to the prejudice prong, the petitioner must establish “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing
Strickland, 466 U.S. at 694). However, in some cases, “counsel’s performance is so
deficient that it becomes presumptively prejudicial.” Wallace v. State, 121 S.W.3d 652,
657 (Tenn. 2003) (citing United States v. Cronic, 466 U.S. 648 (1984)). That is, “when
‘counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,’
the process becomes ‘presumptively unreliable’ and proof of actual prejudice is not
required.” Id. (quoting Cronic, 466 U.S. at 659). Our supreme court has held that
counsel’s failure to file a timely motion for new trial constitutes “abandonment . . . at
such a critical stage of the proceedings” and results in “the failure to preserve and pursue
the available post-trial remedies and the complete failure to subject the State to the
adversarial appellate process.” Id. at 658. Such a failure is, therefore, “presumptively
prejudicial.” Id. The court, however, “declin[ed] to adopt a per se rule regarding a trial
counsel’s failure to file a motion for new trial,” and instead, articulated a specific test:
“[A] petitioner in a post-conviction proceeding must establish that he or she intended to
file a motion for new trial and that but for the deficient representation of counsel, a
motion for new trial would have been filed raising issues in addition to sufficiency of the
evidence.” Id. at 659.

       We conclude that trial counsel’s failure to file a timely motion for new trial
constituted deficient performance. See Wallace, 121 S.W.3d at 657; Elmi Abdulahi Abdi
v. State, No. M2012-02688-CCA-R3-PC, 2013 WL 6081461, at *9 (Tenn. Crim. App.
Nov. 18, 2013); Ricky Lynn Earls v. State, No. M2003-3011-CCA-R3-PC, 2005 WL
901142, at *5 (Tenn. Crim. App. Apr. 19, 2005). Because the untimely motion for new

                                             -5-
trial resulted in the failure to “preserve and pursue” the Petitioner’s additional issues on
direct appeal, and because the resulting waiver constituted the “failure to subject the State
to the adversarial appellate process,” the Petitioner was presumptively prejudiced by trial
counsel’s deficient performance. See Wallace, 121 S.W.3d at 658; Abdi, 2013 WL
6081461, at *9.

        Here, the post-conviction court concluded that trial counsel was deficient for
failing to file a timely motion for new trial but that the Petitioner was not prejudiced by
the error, especially given the strength of the evidence presented against the Petitioner at
trial and the fact that the Petitioner “still got an appeal.” However, the Petitioner’s issues
other than sufficiency and sentencing were waived by this court on direct appeal and
were not reviewed for plain error. Accordingly, the post-conviction court erred when it
denied relief based on an actual prejudice analysis, rather than the presumed prejudice
analysis required by our supreme court in Wallace, 121 S.W.3d at 656-58. See also Abdi,
2013 WL 6081461, at *9. The State concedes error and agrees that the Petitioner is
entitled to a delayed appeal.

       Because an appeal was in fact filed raising additional issues on behalf of the
Petitioner, and because trial counsel testified that he arrived in court with a motion for
new trial in hand, it is apparent from the record that the Petitioner “intended to file a
motion for new trial, and that but for the deficient representation of counsel, a motion for
new trial would have been filed raising issues in addition to sufficiency of the evidence.”
Wallace, 121 S.W.3d at 659; Abdi, 2013 WL 6081461, at *9; Michael Morani v. State,
No. E2005-01897-CCA-R3-PC, 2006 WL 1815072, at *5 (Tenn. Crim. App. June 30,
2006). Therefore, we conclude that the Wallace factors have been satisfied and that the
appropriate remedy is to grant the Petitioner a delayed appeal. See Tenn. Code Ann. §
40-30-113(a); Wallace, 121 S.W.3d at 656; Abdi, 2013 WL 6081461, at *9; Timothy
Turner v. State, No. M2008-00372-CCA-R3-PC, 2009 WL 1175116, at *5 (Tenn. Crim.
App. May 1, 2009); Terry Lynn Byington v. State, No. E2006-01712-CCA-R3-PC, 2007
WL 4167812, at *4-5 (Tenn. Crim. App. Nov. 26, 2007).

        Rule 28 of the Tennessee Rules of the Supreme Court allows either a trial court or
this court to grant a delayed appeal and provides that, when a petitioner appeals a post-
conviction court’s denial of a delayed appeal, this court shall “resolve this issue along
with any other issues raised in the post-conviction appeal.” Tenn. R. Sup. Ct. R. 28, §
9(D)(2)(a). Accordingly, based upon the presumptive prejudice of trial counsel’s failure
to file a timely motion for new trial, the Petitioner is entitled to post-conviction relief in
the form of a delayed appeal.

       Additionally, the State acknowledges that this court is bound by Wallace but
argues that Wallace was wrongly decided. We note that Rule 28 further states that,
“[s]hould the Court of Criminal Appeals grant a delayed appeal, the post-conviction
                                             -6-
appeal shall not be stayed; instead any party may challenge the decision of the Court of
Criminal Appeals, or any portion thereof, by filing an application for permission to
appeal pursuant to Rule 11, Tennessee Rules of Appellate Procedure.” Tenn. R. Sup. Ct.
R. 28, § 9(D)(2)(a). The State of course is free to pursue this issue with the Tennessee
Supreme Court.

                                      CONCLUSION

        We conclude that the Petitioner is entitled to post-conviction relief in the form of a
delayed appeal resulting from trial counsel’s failure to file a timely motion for new trial.
Accordingly, we reverse the judgment of the post-conviction court denying relief and
remand this case to the post-conviction court for that court to enter an order allowing the
Petitioner to file a new motion for new trial. Thereafter, the Petitioner shall be permitted
to file a delayed appeal.




                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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