             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON

                                   APRIL 1997 SESSION
                                                         FILED
                                                          August 28, 1997

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk

LARRY D. CARR,                           )    NO. 02C01-9605-CR-00137
                                         )
      Appellant                          )    SHELBY COUNTY
                                         )
V.                                       )    HON. ARTHUR T. BENNET, JUDGE
                                         )
STATE OF TENNESSEE,                      )    (Post-Conviction)
                                         )
      Appellee                           )
                                         )


FOR THE APPELLANT                             FOR THE APPELLEE

Harold D. Archibald                           John Knox Walkup
33 North Front Street, Suite 790              Attorney General and Reporter
Memphis, Tennessee 38103                      450 James Robertson Parkway
                                              Nashville, Tennessee 37243-0493

                                              Deborah A. Tullis
                                              Assistant Attorney General
                                              450 James Robertson Parkway
                                              Nashville, Tennessee 37243-0493

                                              John W. Pierotti
                                              District Attorney General
                                              201 Poplar Avenue
                                              Memphis, Tennessee 38103-1947

                                              Jennifer Nichols
                                              Assistant District Attorney General
                                              201 Poplar Avenue
                                              Memphis, Tennessee 38103-1947




OPINION FILED:______


AFFIRMED IN PART -- DELAYED APPEAL GRANTED

William M. Barker, Judge
                                          Opinion

       The Appellant, Larry D. Carr, appeals as of right the Shelby County Criminal

Court’s dismissal of his petition for post-conviction relief. He argues that his trial

attorney provided ineffective assistance of counsel. We have reviewed the record on

appeal and find that the Appellant’s trial attorney provided effective assistance of

counsel through the trial and the appeal to this Court, but failed to advise the

Appellant of his right to seek permission to appeal his case to the Tennessee

Supreme Court. Accordingly, we vacate this Court’s opinion entered on February 16,

1994, and re-enter the opinion so that the Appellant may file an application for

permission to appeal to the Tennessee Supreme pursuant to Rule 11 of the

Tennessee Rules of Appellate Procedure. We affirm the trial court in all other

respects.

       The Appellant, while on parole for aggravated robbery, was arrested and

charged with another instance of aggravated robbery. After a trial on the merits, a jury

found the Appellant guilty as charged. The trial court later sentenced him to ten years

imprisonment. The Appellant appealed his conviction to this Court and we affirmed.

State v. Larry D. Carr, C.A.A. No. 02C01-9204-CR-00075 (Tenn. Crim. App., Jackson,

Feb. 16, 1994). On July 8, 1994, the Appellant filed this petition for post-conviction

relief. On December 15, 1995, after an evidentiary hearing, the trial court filed a

memorandum denying the Appellant’s petition.

       The Appellant argues that his constitutional right to the effective assistance of

counsel was violated. In reviewing an appellant’s Sixth Amendment claim of

ineffective assistance of counsel, this Court must determine whether the advice given

or services rendered by the attorney are within the range of competency demanded of

attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To

prevail on a claim of ineffective counsel, a petitioner “must show that counsel’s

representation fell below an objective standard or reasonableness” and that this

performance prejudiced the defense. There must be a reasonable probability that but

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for counsel’s error the result of the proceeding would have been different. Strickland

v. Washington, 466 U.S. 668, 687-88, 692, 694, 104 S.Ct. 2053, 2064, 2067-68, 80

L.Ed. 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).

       The Appellant claims that his attorney insufficiently investigated his case by

failing to interview potential witnesses. The evidence in the record clearly shows that

the Appellant’s attorney sufficiently investigated this case. The Appellant’s attorney

reviewed the State’s file and then sent an investigator to take statements from the

State’s key witnesses. She also investigated potential defense witnesses suggested

by the Appellant, but those witnesses either were unavailable or did not cooperate.

Moreover, the Appellant failed to introduce the testimony of any witnesses at the post-

conviction hearing. Without such testimony, we are unable to review the Appellant’s

claim that he was prejudiced. See Wade v. State, 914 S.W.2d 97,102 (Tenn. Crim.

App. 1995); Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

       The Appellant also claims that his lawyer prejudiced his defense by introducing

police lineup photographs of the Appellant to the jury. The Appellant’s lawyer did

introduce three or four police lineup photographs, but she did that to attempt to prove

that the State’s key witness had erroneously identified the Appellant as the robber.

Tactical decisions, such as this one, are not subject to post-conviction challenges.

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Moreover, all information on those

pictures that suggested that the Appellant had committed prior crimes was deleted.

The Appellant has failed to show prejudice

       The Appellant next claims that his trial attorney was inefficient because she

failed to file a motion to suppress a police report which allegedly contained conflicting

and erroneous information. The Appellant failed to introduce a copy of the police

report into the record and, therefore, we are unable to review his claim that he was

prejudiced.

       Finally, the Appellant argues that his counsel failed to advise him of his right to

seek second tier appellate review to the Tennessee Supreme Court and that he

                                             3
should be granted a delayed appeal. The State concedes that this argument has

merit and we agree.

         After the Appellant’s attorney completed her representation of the Appellant

and was permitted to withdraw, she sent him a letter advising him that she was

withdrawing and that if he wanted to appeal he had three years to file a petition for

post-conviction relief. She did not advise him that he could file a petition asking for

permission to appeal his case to the Tennessee Supreme Court.

         Rule 14 of the Rules of the Supreme Court of the State of Tennessee requires

attorneys withdrawing from further representation of indigent defendants to notify them

in writing:

         (1) that counsel does not intend to file an Application for Permission to
         Appeal and that leave of Court is being sought to withdraw; (2) that the
         defendant may file a pro se Application for Permission to Appeal with the
         Clerk of the Supreme Court if filed within sixty (60) days after entry of
         final judgment in the Court of Criminal Appeals; (3) the date on which the
         Court of Criminal Appeals opinion was released; and (4) the date on
         which an Application for Permission to Appeal is due.

Rule 14, Rules of the Supreme Court of the State of Tennessee.

         Minimum compliance with this rule is necessary to protect defendants’ due

process rights. State v. Brown, 653 S.W.2d 765, 767 (Tenn. Crim. App. 1983). When

a defendant is denied second tier appellate review by no fault of his own, he is entitled

to a delayed appeal. Pinkston v. State, 668 S.W.2d 676, 677 (Tenn. Crim. App.

1984).

         The Appellant’s trial counsel failed to notify the Appellant of his right to seek

second tier review. Therefore, we grant the Appellant the right to seek a delayed

appeal from the Tennessee Supreme Court. Accordingly, we vacate our judgment of

February 16, 1994, and reinstate it as of the date of the release of this opinion.




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                                 __________________________
                                 WILLIAM M. BARKER, JUDGE

CONCUR:



__________________________
JOSEPH M. TIPTON, JUDGE



__________________________
DAVID G. HAYES, JUDGE




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