         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 10, 2007

                     CORNELL POE v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Madison County
                              No. C-06-49    Roger Page, Judge


                  No. W2006-01202-CCA-R3-PC - Filed September 12, 2007


The Petitioner, Cornell Poe, proceeding pro se, appeals the Madison County Circuit Court’s denial
of his petition for post-conviction relief. In February 2006, the Petitioner filed a petition for post-
conviction relief collaterally attacking his convictions for aggravated burglary and Class D felony
theft. The post-conviction court appointed counsel, and counsel filed an amended petition.
Following an evidentiary hearing, the post-conviction court denied relief. Because the record before
this court fails to indicate that the Petitioner’s court-appointed counsel was allowed to withdraw or
that the Petitioner has waived his right to counsel on appeal, the judgment of the post-conviction
court is vacated, and this case is remanded to the post-conviction court for reinstatement of the order
denying post-conviction relief. Appointed counsel shall continue in her representation of the
Petitioner on appeal, and the case shall proceed in accordance with the Tennessee Rules of Appellate
Procedure.

         Tenn. R. App. P. 3; Judgment of the Circuit Court Vacated and Remanded

DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and ALAN
E. GLENN , J., joined.

Cornell Poe, Pro Se, Henning, Tennessee (on appeal); Angela Hopson, Jackson, Tennessee (at
hearing), for the Appellant, Cornell Poe.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

        In April 2005, the Petitioner entered guilty pleas to aggravated burglary and theft of property
over $1,000. For these offenses, the Petitioner received an effective twelve-year community
corrections sentence. Shortly after imposition of the sentence, the Petitioner’s community
corrections sentences were revoked, and the Petitioner was remanded to the Department of
Correction. On February 9, 2006, the Petitioner filed a pro se petition for post-conviction relief in
the Madison County Circuit Court. As grounds for relief, the Petitioner alleged that his guilty pleas
were not knowingly and voluntarily entered.

       After an indigency determination, the post-conviction court appointed counselor Angela
Hopson to represent the Petitioner during the post-conviction proceedings. Counselor Hopson filed
an amended petition, and, on April 10, 2006, the post-conviction court conducted an evidentiary
hearing. By order entered April 19, 2006, the post-conviction court denied the Petitioner relief. The
post-conviction court’s order further directed that “Attorney Angela Hopson shall continue to
represent Petitioner until relieved by this Court.” On June 7, 2006, forty-four days after entry of the
lower court’s judgment, the Petitioner filed a pro se notice of appeal document in the Madison
County Circuit Court. The record reflects that the Petitioner also filed a second pro se notice of
appeal document on June 19, 2006.

        This court must first address whether the present appeal has been waived by the untimely
filing of the Petitioner’s notice of appeal document. A notice of appeal is required to be filed with
the clerk of the trial court within thirty days after the date of entry of the judgment from which relief
is sought. Tenn. R. App. P. 4(a). As noted, the Petitioner filed his notice of appeal forty-four days
after judgment was entered. The timely filing of a notice of appeal is not, however, a prerequisite
to the jurisdiction of this court, and this court may waive the requirement in the interest of justice.
Id. Upon consideration of the record as a whole, we conclude that waiving the timely filing
requirement in the instant case serves the interest of justice for the reasons stated in this opinion.

        The record reveals that the post-conviction court appointed counsel to represent the pro se
Petitioner after a finding of indigency. The record is void of any ruling by the post-conviction court
relieving appointed counsel of her duty to represent the Petitioner in the post-conviction proceedings
or the subsequent appeal. Moreover, the record does not contain any pleading which indicates that
the indigent Petitioner waived his right to counsel on appeal in this cause or that substitute counsel
was appointed for him. However, the appellate record does reflect that the Petitioner sought to
obtain the assistance of counsel after the filing of the notice of appeal document by submitting a
“Motion to Appoint New Counsel,” which was forwarded to the attention of the Attorney General’s
office.

        Tennessee Code Annotated section 40-30-106 authorizes the trial court to appoint counsel
in post-conviction cases. T.C.A. § 40-30-106 (2006); see also Swanson v. State, 749 S.W.2d 731,
734 (Tenn. 1988). Moreover, an indigent petitioner in a post-conviction proceeding is entitled to
representation in a first tier post-conviction appeal. Drummer v. State, 6 S.W.3d 520, 523 (Tenn.
1999); Recor v. State, 489 S.W.2d 62 (Tenn. Crim. App. 1972). This right to appellate counsel is
not constitutional, but, rather, it is provided for by a pari-materia construction of provisions of
Tennessee Supreme Court Rule 28, Rule 18 of the Tennessee Rules of Appellate Procedure, and
Tennessee Code Annotated sections 40-30-115, 50-14-205, and 40-14-203. Kenneth Smith v. State,
No. W2001-02088-CCA-R3-PC (Tenn. Crim. App. at Jackson, Nov. 14, 2002).




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        Construction of the applicable rules and statutes provides the following recognized principle
relating to the duty of appointed counsel in a post-conviction proceeding:

       If counsel is appointed for an indigent petitioner in an initial petition for post-
       conviction relief, and if there is an evidentiary hearing followed by the entry of an
       order dismissing the petition, appointed counsel at the trial court level continues to
       represent the petitioner in the event of an appeal from the post-conviction court’s
       order, unless counsel is allowed to withdraw by court order.

Kenneth Smith, No. W2001-02088-CCA-R3-PC (citing Drummer, 6 S.W.3d at 522-23). Moreover,
prior opinions of this court provide the remedy in cases where appointed counsel fails to continue
representation at the appellate level. In this event, this court should:

       vacate the judgment of the post-conviction court and remand the matter to the trial
       court with instructions to re-enter the order dismissing the petition for post-
       conviction relief and ensure that the petitioner, who, if still indigent, is notified that
       he[/she] has appointed counsel to represent him[/her] in the appeal from the post-
       conviction court’s order. Thereafter, the matter shall proceed in accordance with the
       Tennessee Rules of Appellate Procedure.

Id.

        The record in the instant case reflects that counsel was appointed to represent the Petitioner
for the purpose of the post-conviction proceedings. The record fails to reflect that the Petitioner
waived his right to counsel, that substitute counsel was appointed, or that appointed counsel was
permitted to withdraw from further representation. As such, based upon precedent established by
this court, we vacate the order entered by the court dismissing the petition for post-conviction relief.
We remand this case to the post-conviction court for re-entry of the order dismissing the petition for
post-conviction relief in order that the time period shall begin anew for the filing of the relevant
portions of the record and completion of the briefing requirements. The post-conviction court shall
ensure that the Petitioner has appointed counsel to represent him if he so desires to proceed with an
appeal of the dismissal of his petition for post-conviction relief. Thereafter, this case shall proceed
in accordance with the Tennessee Rules of Appellate Procedure. The necessity of this action is
further illustrated by the State’s argument on appeal that the Petitioner’s appeal should be
procedurally defaulted for failing to support the issue presented on appeal “with argument, citation
to authorities, or appropriate references to the record.”

       Based upon the foregoing, the case is remanded to the post-conviction court for further
proceedings consistent with this opinion.



                                                        ____________________________________
                                                        DAVID G. HAYES, JUDGE

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