        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs April 27, 2016


       DEMARCUS ANT-JUAN NELSON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                    No. 104333     Steven Wayne Sword, Judge




                 No. E2015-01247-CCA-R3-PC – Filed June 22, 2016
                        _____________________________

DeMarcus Ant-Juan Nelson (“the Petitioner”) filed a pro se petition for post-conviction
relief which included a request for permission to file a delayed application to appeal to
the Tennessee Supreme Court pursuant to Tennessee Rule of Appellate Procedure 11 and
other post-conviction relief claims. The post-conviction court entered a single order that
granted the delayed appeal and dismissed the remaining claims. On appeal, the Petitioner
argues that the post-conviction court erred when the court did not stay his remaining post-
conviction claims pursuant to Tennessee Supreme Court Rule 28 until after the final
disposition of the delayed appeal. After a review of the record and applicable law, the
judgment of the post-conviction court is reversed in part, and this case remanded for
further proceedings consistent with this opinion.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed,
                              in part, and Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which JAMES
CURWOOD WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Mark E. Stephens, District Public Defender and Jonathan Harwell, Assistant District
Public Defender, Knoxville, Tennessee, for the appellant, DeMarcus Ant-Juan Nelson.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Charme P. Allen, District Attorney General; and Kenneth F. Irvine, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                    I.       Factual and Procedural Background

       The Petitioner pled guilty to possession with intent to sell 0.5 grams or more of a
substance containing cocaine within 1,000 feet of a school and was sentenced to twenty
years’ incarceration. Pursuant to his guilty plea, the Petitioner reserved a certified
question of law as to the validity of his seizure. On appeal, this court affirmed the
judgment of the trial court. State v. Demarcus Ant-Juan Nelson, No. E2013-01414-CCA-
R3-CD, 2014 WL 4065649, at *1 (Tenn. Crim. App. Aug. 18, 2014). After this court’s
ruling, the Petitioner’s appellate counsel did not file an application for permission to
appeal to the Tennessee Supreme Court pursuant to Rule 11 of the Tennessee Rules of
Appellate Procedure (hereinafter “Rule 11”) or a motion to withdraw as counsel under
Tennessee Supreme Court Rule 14.

       Thereafter, the Petitioner filed a timely, pro se petition for post-conviction relief
and a Motion for Appointment of Counsel. In a section titled “Grounds of Petition,” the
Petitioner marked boxes which indicated the following: (1) “the conviction was based on
[an] unlawfully induced guilty plea or guilty plea [was] involuntarily entered without
understanding the nature and consequences of the plea”; (2) “the conviction was based on
[the] use of evidence gained pursuant to an unconstitutional search and seizure”; (3) “the
conviction was based on [the] use of evidence obtained pursuant to an unlawful arrest”;
(4) “the conviction was based on the unconstitutional failure of the prosecution to
disclose to defendant evidence favorable to the defendant”; (5) “denial of effective
assistance of counsel”; and (6) “[o]ther grounds.” In the blank adjacent to “[o]ther
grounds,” the Petitioner averred that he was denied the right to seek permission to appeal
to the Tennessee Supreme Court because appellate counsel’s failure to withdraw his
representation prevented the Petitioner from filing a pro se Rule 11 application.

        The post-conviction court entered a preliminary order pursuant to Tennessee Code
Annotated section 40-30-107 and appointed counsel to the Petitioner’s case. Within
thirty days of entry of the preliminary order, the Petitioner, by and through counsel, filed
a motion requesting that the post-conviction court bifurcate the proceedings and allow
thirty days for the Petitioner to file an amended petition solely regarding the issues
relating to the Rule 11 application; stay the proceedings with respect to the remaining
post-conviction claims; and allow the Petitioner to amend the petition with respect to the
remaining claims at the conclusion of litigation on the Rule 11 issue.

       At an evidentiary hearing, the post-conviction court stated:

       . . . I think that we should hear [the Rule 11 delayed appeal issue] today[.]
       [T]hen when I rule on that, I’ll also rule on, as the [S]tate has pointed out,
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       my obligation to first assess whether or not the other issues are sufficiently
       alleged before the [c]ourt can even have a hearing on them.

Next, the parties presented proof solely on the Rule 11 issue. At the conclusion of the
hearing, the post-conviction court stated, “I’m going to determine whether or not you
should be granted an opportunity to seek a delayed appeal to the Supreme Court . . . .
[O]nce that is resolved one way or the other, then I’ll rule on whether or not you get a
hearing on your post-conviction relief . . . .”

       Subsequently, the post-conviction court issued an order finding that “the Petitioner
had received ineffective assistance of counsel when appellate counsel failed to either seek
appeal under Rule 11 to the Supreme Court within sixty days of the ruling of the Court of
Criminal Appeals or to withdraw as counsel.” The court determined that the appropriate
remedy was to allow the Petitioner to file a delayed application for permission to appeal
pursuant to Rule 11.1 In the same order, the post-conviction court dismissed the
Petitioner’s remaining post-conviction claims, finding that there were no grounds cited in
support of the claims made in the petition.

       The Petitioner then filed a Motion to Reconsider and/or Clarify asking the post-
conviction court to reconsider its ruling and requesting that the remaining claims in the
petition be held in abeyance until the resolution of the Rule 11 claim according to the
Supreme Court Rules. The motion was denied, and this timely appeal followed.

                                       II.        Analysis

       On appeal, the Petitioner argues that, under Supreme Court Rule 28, the post-
conviction court should have held all post-conviction claims asserted in the petition in
abeyance until after the resolution of the Rule 11 delayed appeal. Thus, the dismissal of
the remaining post-conviction claims was in error. The State concedes, “[T]he post-
conviction court failed to comply with the requirements of [Supreme Court] Rule 28.
Upon granting the [P]etitioner a delayed Rule 11 application, the court should have held
the remainder of his claims in abeyance until the resolution of the delayed appeal.” We
agree with the parties.

       The decision of a post-conviction court to dismiss claims in a petition is a question
of law to be reviewed de novo. See Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002).

      The Tennessee Post-Conviction Procedure Act, set forth in Tennessee Code
Annotated sections 40-30-101 through -122, and Tennessee Supreme Court Rule 28
       1
         The Petitioner filed his Rule 11 application for permission to appeal on October 14, 2015. The
Tennessee Supreme Court denied the application on January 21, 2016.

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govern post-conviction relief procedure. Tennessee Supreme Court Rule 28 contains
special provisions that apply when a petition contains a claim for a Rule 11 delayed
appeal. Rule 28 section 8(D)(3) states:

      In the event that the petition alleges that petitioner was unconstitutionally
      deprived of an appeal and was also entitled to relief on other grounds, the
      court shall bifurcate the proceedings and determine first whether petitioner
      was denied an appeal, while holding the other claims in abeyance. Those
      claims shall be considered after the outcome of the delayed appeal if
      allowed, or after the appeal of the claim, if denied.

Tenn. Sup. Ct. R. 28, § 8(D)(3) (emphasis added). Furthermore, once the post-conviction
court determines that the petitioner was deprived of the right to request an appeal under
Rule 11, the post-conviction court shall enter an order granting the petitioner a delayed
appeal and staying the post-conviction proceedings pending the final disposition of the
delayed appeal. Tenn. Sup. Ct. R. 28, § 9(D)(1)(b)(i); see Frederick Alexander Avery v.
State, No. M2011-02493-CCA-R3-PC, 2013 WL 451867, at *2 (Tenn. Crim. App. Feb.
6, 2013) (concluding that the post-conviction court erred by not staying the post-
conviction proceeding pending the disposition of the delayed appeal).

       In this case, the post-conviction court failed to properly follow Supreme Court
Rule 28. The 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 his 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).

       Accordingly, we reverse the post-conviction court’s ruling on all of the
Petitioner’s claims except for the grant of the delayed application for permission to
appeal pursuant to Rule 11 and remand this case to the post-conviction court for an
evidentiary hearing on the Petitioner’s remaining claims for post-conviction relief. The
post-conviction court erred in dismissing the pro se petition before appointed counsel had
an opportunity to amend the petition. See Guadalupe Arroyo v. State, No. E2008-01220-
CCA-R3-PC, 2009 WL 2503152, at *3-4 (Tenn. Crim. App. Aug. 17, 2009) (concluding
that the post-conviction court erred in summarily dismissing the petition after the
appointment of counsel and remanding the case to allow any necessary amendment of the
petition and an evidentiary hearing). Thus, on remand, the post-conviction court shall
allow counsel an opportunity to amend the petition, and the court shall conduct an
evidentiary hearing on the Petitioner’s remaining post-conviction claims.


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                                      Conclusion

       For the aforementioned reasons, the judgment of the post-conviction court is
reversed in part, and the case is remanded to allow any necessary amendment of the
petition by counsel and for an evidentiary hearing on the post-conviction relief claims.



                                               _________________________________
                                               ROBERT L. HOLLOWAY, JR., JUDGE




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