         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                   Assigned on Briefs December 10, 2002 at Knoxville

                     STATE OF TENNESSEE v. RONALD PAUL

                    Appeal from the Criminal Court for Robertson County
                          No. 9310    John H. Gasaway, III, Judge



                     No. M2002-00810-CCA-R3-CD - Filed March 3, 2003


The petitioner, Ronald Paul, appeals the Robertson County Criminal Court’s disposition of his
petition for post-conviction relief. The petition alleged ineffective assistance of trial and appellate
counsel. The lower court ruled that, because appellate counsel’s single issue raised on direct appeal
was deemed waived by the appellate court, the petitioner would be entitled to a delayed appeal. The
court also dismissed without prejudice the remaining allegations of ineffective assistance of counsel,
indicating that the petitioner could file a new petition for post-conviction relief after the conclusion
of the delayed direct appeal. Because we lack jurisdiction in this appeal, we dismiss the appeal.


    Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed, Appeal Dismissed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which GARY R. WADE , P.J.,
and JERRY L. SMITH, J., joined.

William F. Kroeger, Springfield, Tennessee, for the Appellant, Ronald Paul.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and Dent Morriss, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                              OPINION

               In 1995, a Robertson County jury convicted the petitioner of one count of aggravated
rape, three counts of rape, and two counts of sexual battery. The petitioner’s stepdaughter was the
victim in each offense. The trial court imposed an effective 32-year sentence in the Department of
Correction. On direct appeal, the petitioner’s single issue was that the trial court erred in admitting
testimony of a nurse practitioner that the victim identified the petitioner as the perpetrator of the
sexual offenses. See State v. Ronald Paul, No. 01C01-9511-CC-00358, slip op. at 2 (Tenn. Crim.
App., Nashville, Sept. 19, 1997), perm. app. denied (Tenn. 1998). This court affirmed the
convictions on the basis that the defendant waived appellate review (1) by asserting a different claim
of exclusion of the evidence than was asserted in the trial court and (2) by failing to include the
appellate claim of exclusion in his motion for new trial. Id., slip op. at 3.

                In his subsequent petition for post-conviction relief, which was filed in 1999, the
petitioner asserts a claim of ineffective assistance of trial counsel. He claims that counsel admitted
to third parties that, being a divorce lawyer, counsel was incompetent to handle the petitioner’s
defense. The petitioner also claims that his trial counsel failed to interview witnesses, to prepare for
trial, to develop an informed defense strategy, to move to suppress a tape-recorded conversation
between the petitioner and a TBI agent, and to include the tape issue in the motion for new trial. He
likewise claims that appellate counsel failed to communicate with him and failed to raise viable
appellate issues.

                After conducting a hearing on February 22, 2002, the post-conviction court found that
“the sole issue appealed by counsel was deemed to have been waived by the Appellate Court [and]
several issues raised in the motion for new trial . . . should have been appealed . . . and that failure
to do so, effectively denied Petitioner’s appeal as of right.” The court granted a delayed appeal of
his original conviction pursuant to Tennessee Code Annotated sections 40-30-211 and -213. The
remaining post-conviction claims of ineffective assistance of counsel were “dismissed without
prejudice in order to preserve those issues should the Petitioner not prevail on Appeal.”

               Now on appeal, the petitioner is apparently pursuing a delayed direct appeal; his brief
raises only “direct appeal” issues, and he makes no complaint about the post-conviction court’s
actions. The state’s brief responds to the petitioner’s issues and makes no objection to the delayed-
appeal format.

               Upon our review of the record, we conclude that the post-conviction court erred in
granting the petitioner a delayed appeal pursuant to Code section 40-30-213 and in summarily
dismissing the remaining claims of ineffective assistance of counsel. See Tenn. R. App. P. 13(b)
(although an issue is not presented for appellate review, it may be reviewed by the appellate court
when it presents a question of appellate jurisdiction or of abuse to the judicial process).

               This case is very similar to the proceedings in State v. Donald Wallace, No. M2001-
0272-CCA-R3-CD (Tenn. Crim. App., Nashville, Dec. 9, 2000) (Wallace II), and our resolution of
the issues in Donald Wallace is dispositive of the issues here raised. After Wallace’s conviction of
first-degree murder, his motion for new trial was untimely filed, thus “restricting direct appellate
review to the sufficiency of the evidence.” Id., slip op. at 1; see State v. Donald Wallace, No.
01C01-9711-CC-00526 (Tenn. Crim. App., Nashville, Sept. 30, 1998) (opinion upon Wallace’s
direct appeal; finding insufficient evidence of premeditation to support first-degree murder
conviction and imposing a second-degree murder conviction) (Wallace I). Later, Wallace filed a
post-conviction petition. The post-conviction court dismissed the petition without prejudice and
granted the defendant a delayed appeal, finding that counsel’s actions in failing to file a timely
motion for new trial had “prejudiced the Petitioner in that he was denied his right to appellate review



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of all issues other than the sufficiency of evidence.” Wallace II, slip op. at 3-4. Neither party
appealed the post-conviction court’s order in Wallace.

                 Wallace then moved for a new trial. When the motion was denied, he appealed the
denial of a new trial, thus initiating Wallace II. Id. In that appeal, this court held that “the post-
conviction court applied an erroneous standard of prejudice in dealing with the claim of ineffective
assistance of counsel, and it lacked the authority to order a delayed appeal.” Id., slip op. at 5.
Essentially, the post-conviction court in Wallace II erred in “presuming that prejudice flowed” from
trial counsel’s failure to file a timely motion for new trial. Id., slip op. at 6. This court said that
Wallace, having appealed the issue of the sufficiency of the convicting evidence, had not been
deprived of an appeal. Id. Although the delayed appeal statute, a feature of the post-conviction law,
affords relief in the form of a delayed direct appeal without a showing of prejudice, the delayed
appeal statute did not apply in Wallace’s situation. Id., slip op. at 7; see Tenn. Code Ann. § 40-30-
213(a) (1997) (delayed appeal authorized when petitioner was “denied the right to an appeal from
the original conviction”). Accordingly, Wallace’s complaint about the inadequacy of his direct
appeal necessarily involved the rigors of proving ineffective assistance of counsel, including both
a showing of deficient performance and actual prejudice resulting from the performance. See id.,
slip op. at 5; see also Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).

                Wallace II controls the present case. The post-conviction court in the present case
made no finding that the petitioner had been prejudiced by an inadequate or a substandard appeal.
In any event, the court had no authority to grant a second direct appeal. Accord State v. Kenneth S.
Griffin, No. E2000-02471-CCA-R3-CD (Tenn. Crim. App., Knoxville, June 25, 2001), perm. app.
denied (Tenn. 2001). As a result, the attempted delayed appeal, with its “direct appeal” claims, is
not, as such, properly before this court. Wallace II, slip op. at 8; Kenneth S. Griffin, slip op. at 3.

                The question of the proper disposition of the appeal remains. In Wallace II, this
court’s scope of review was limited to the ersatz direct appeal which followed a belated motion for
new trial and the order overruling same. Wallace II, slip op. at 9. We were limited to reviewing the
second direct appeal because Wallace’s post-conviction order had long since been final; neither party
had appealed. As a result, the post-conviction case itself, from which the delayed appeal order
emanated, was not before the Wallace II court. Id. What was before the Wallace II court was an
attempted reopening of the final conviction. In such a posture, the Wallace II court could adjudicate
nothing. The post-conviction order had not been and could not be appealed, and the purported direct
appeal was itself not properly before the court. As a result, the appeal was dismissed. Id.

               The posture of the present case is essentially the same. Although this appeal was
timely to appeal the post-conviction court’s order granting the delayed appeal and dismissing the
other post-conviction claims, the petitioner explicitly appealed his June 19, 1995 conviction
judgment, over which we now have no jurisdiction. Also, as in Wallace II, no one has appealed from




                                                 -3-
the post-conviction proceeding, and we have no jurisdiction over it. Accordingly, we must dismiss
the appeal.1




                                                                    ___________________________________
                                                                    JAMES CURWOOD WITT, JR., JUDGE




         1
           W e noted in Wallace II that the invalidity of the post-conviction’s court’s order effectively meant that the po st-
conviction proceeding was still pending in the lower court. Id. slip op. at 9, n.2. That situation exists in the present case.
As we understand the status of the petition below, the court has determined that appellate counsel was re miss in his
handling of the direct appeal. The lower court has yet to determine whether appellate counsel’s deficient performance
resulted in actual prejudice to the petitioner p ursuan t to the stand ards o f Strickland. Also, the court has yet to consider
the claims of the ineffective assistance of trial counsel. Of course, we canno t discern whether an additional hearing will
be necessary to afford the lower court the opportunity to make these determinations, and we defer to that court to decide
whether a furthe r hearing is required.

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