        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 28, 2014

               STATE OF TENNESSEE v. ARTHUR CRUTCHER

              Direct Appeal from the Criminal Court for Shelby County
                       No. 10-00733     Lee V. Coffee, Judge


                 No. W2012-02534-CCA-R3-CD - Filed May 14, 2014


A Shelby County Criminal Court Jury convicted the appellant, Arthur Crutcher, of
aggravated robbery. The trial court sentenced the appellant to ten years in the Tennessee
Department of Correction. On appeal, the appellant asserts that the trial court erred by ruling
that the State could use a prior conviction to impeach the appellant without giving proper
notice. The State contends that the appellant’s notice of appeal was untimely and that the
appeal should be dismissed. We agree with the State and conclude that the interests of justice
do not require waiver of the timely filing of the notice of appeal. Accordingly, the appeal is
dismissed.

               Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and J EFFREY S. B IVINS, JJ., joined.

Dewun R. Settle (on appeal) and Larry Fitzgerald (at trial), Memphis, Tennessee, for the
appellant, Arthur Crutcher.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy
P. Weirich, District Attorney General; and Ann Schiller, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                         OPINION

        The record reflects that following a hearing on the appellant’s motion for new trial,
the trial court entered an order denying the motion on July 29, 2011. During the hearing, the
trial court found that the appellant was indigent and offered to appoint an attorney to
represent the appellant on appeal. The appellant and his mother, Sherry Black, declined,
asserting that Black would retain counsel. At that point, the following colloquy occurred:
       THE COURT: Do you understand how much this is
going to cost?

       MS. BLACK: Yes, sir. I do.

       THE COURT: Do you understand that you have thirty
days to get that done?

       MS. BLACK: Yes, sir.

       THE COURT: And you’re going to get all that done
within thirty days?

       MS. BLACK: Yes, sir. I will.

      THE COURT: Now, you’re telling me that you do not
want me to appoint a lawyer for your son?

       MS. BLACK: No, sir. I’m going to get one.

       ....

      THE COURT: Ms. Black, I’m going to yield to your
wishes –

       MS. BLACK: Thank you.

        THE COURT: – And I will not appoint a lawyer for [the
appellant]. You have thirty days to have that done; to have a
lawyer file a Notice of Appeal, and to have an order entered to
have the record transcribed, and if that’s not done, Ms. Black,
[the appellant’s] going to waive his rights to have this case
looked at by the Court of Criminal Appeals, and this will be a
final judgment. Do you understand that?

       MS. BLACK: Yes, sir. Yes, sir. I do.

       THE COURT: And you’re telling me that you want to get
that done yourself?

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                        MS. BLACK: I do.

                       THE COURT: Ms. Black, make sure you get a lawyer
                hired; make sure the lawyer understands what’s going on,
                because he or she will have thirty days to file a Notice of
                Appeal, and has thirty days to file a request to have the trial[,]
                everything else typed up, so that it can be appealed. Do you
                understand that?

                        MS. BLACK: Yes, sir. I do.

         On February 10, 2012, the trial court entered an order, finding that the appellant was
indigent, unable to employ counsel, and had “a conflict of interest with the Public Defender.”
Accordingly, the trial court appointed private counsel to represent the appellant. Months
later, on October 10, 2012, appellate counsel filed a motion asking the trial court to accept
a late-filed notice of appeal.1 In the motion, appellate counsel stated that after the motion for
new trial was denied, the appellant did not have an attorney. Appellate counsel stated that
the appellant attended high school until the eleventh grade, that he was a special education
student, and that his intelligence was “in the mildly mentally retarded range.” Appellate
counsel maintained that due to the appellant’s “diminished capacity,” he had “trouble making
decisions in terms of speed and of quality” and that “he did not understand his rights
regarding a criminal appeal.” Appellate counsel argued that “equity and fairness require[d]
that [he] be permitted to file a late notice of appeal.” On November 7, 2012, the trial court
granted the motion, finding “[t]hat through no fault of his own the [appellant] was not able
to file a notice of appeal.” On appeal, the State maintains that the appeal should be dismissed
because the trial court did not have jurisdiction to waive the timely filing of the notice of
appeal.

        Rule 4(a) of the Tennessee Rules of Appellate Procedure provides that “the notice of
appeal required by Rule 3 shall be filed with and received by the clerk of the trial court
within 30 days after the date of entry of the judgment appealed from [.]” Nevertheless, Rule
4 provides that “in all criminal cases the ‘notice of appeal’ document is not jurisdictional and
the filing of such document may be waived in the interest of justice.” Tenn. R. App. P. 4(a).
The rule specifically mandates that “[t]he appropriate appellate court shall be the court that
determines whether such a waiver is in the interest of justice.” Therefore, only this court, not
the trial court, had the jurisdiction to waive the timely filing of a notice of appeal.


        1
         The record does not contain an explanation for appointed appellate counsel’s failure to file a
notice of appeal until eight months after her appointment.

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        To that end, we note that “‘[i]n determining whether waiver is appropriate, this court
will consider the nature of the issues presented for review, the reasons for and the length of
the delay in seeking relief, and any other relevant factors presented in the particular case.’”
State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007) (quoting State v.
Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn.
Crim. App. at Nashville, Dec.27, 2005)). This court has cautioned that “[w]aiver is not
automatic and should only occur when ‘the interest of justice’ mandates waiver. If this court
were to summarily grant a waiver whenever confronted with untimely notices, the thirty-day
requirement of Tennessee Rule of Appellate Procedure 4(a) would be rendered a legal
fiction.” Id.

        The record reflects that the trial court made every effort to ensure that the appellant
and his mother understood the importance of filing a notice of appeal within thirty days. The
trial court asked the appellant and his mother if they understood the cost involved in hiring
an attorney and cautioned them regarding the consequences of not filing timely. The trial
court emphasized that the appellant risked waiving his right to appeal. Despite the trial
court’s thorough admonishments, the appellant chose not to accept the trial court’s offer to
appoint counsel. No action was taken until February 10, 2012, when appellate counsel was
appointed. Afterward, counsel made no effort to seek waiver of the timely filing for eight
months. Given the facts of the instant case, we conclude that the interest of justice does not
require that we waive the timely filing of the notice of appeal. Accordingly, the appeal is
dismissed.


                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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