         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs April 25, 2001

                STATE OF TENNESSEE v. KENNETH S. GRIFFIN

                      Appeal from the Criminal Court for Knox County
                           No. 62290A     Ray L. Jenkins, Judge



                                 No. E2000-02471-CCA-R3-CD
                                        June 25, 2001

Defendant, Kenneth Griffin, was found guilty of burglary (Class D) and theft (Class D) following
a bench trial. He was sentenced as a career offender on each conviction to twelve (12) years
incarceration, and the sentences were ordered to be served consecutively. The Defendant, with
counsel, appealed the conviction raising the sole issue of the sufficiency of the evidence. This court
affirmed. State v. Kenneth S. Griffin, C.C.A. No. 03C01-9811-CR-00406, 1999 Tenn. Crim. App.
LEXIS 1316, Knox County (Tenn. Crim. App., Knoxville, Dec. 27, 1999). Subsequently, Defendant
timely filed a petition for post-conviction relief alleging, apparently among other issues, that he
received ineffective assistance of counsel on appeal because appellate counsel did not raise as an
issue the consecutive sentencing ordered by the trial court. The post-conviction court, in a written
order, granted Defendant a “delayed appeal” as “authorized under TENNESSEE CODE
ANNOTATED SECTION. 40-30-213.” The post-conviction court’s order limited the delayed
appeal to the sole issue “of the correctness of [defendant’s] sentence.” However, the post-conviction
court, while impliedly finding ineffective assistance of counsel for not raising the sentencing issue
on direct appeal, made no finding that the Petitioner was prejudiced by the deficient representation.
In any event, we find that the granting of a delayed appeal from the original conviction is not
authorized by statute, and accordingly, this appeal from the sentence imposed in the original
convictions is dismissed.

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

THOMAS T. WOODALL , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JERRY L. SMITH, J., joined.

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Kenneth Griffin.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Zane M. Scarlett, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                             OPINION

        Pursuant to the trial court’s order in a post-conviction proceeding purporting to grant a
delayed appeal pursuant to Tennessee Code Annotated section 40-30-213, the Defendant filed a
“Notice of Delayed Appeal” from a judgment of the trial court wherein he had been found guilty of
burglary and Class D theft. The only issue raised by Defendant in this appeal is the allegation that
the trial court erred by ordering the sentences to be served consecutively. As noted above, the
Defendant has already appealed his convictions in this case, where the only issue on appeal was the
sufficiency of the evidence to support the convictions. State v. Kenneth S. Griffin, C.C.A. No.
03C01-9811-CR-00406, 1999 Tenn. Crim. App. LEXIS 1316, Knox County (Tenn. Crim. App.,
Knoxville, Dec. 27, 1999).

       Tennessee Code Annotated section 40-30-213 provides in pertinent part as follows:

       40-30-213. Petitioner unconstitutionally denied appeal–Procedure.–(a) When the
       trial judge conducting a hearing pursuant to this part finds that the petitioner was
       denied the right to an appeal from the original conviction in violation of the
       Constitution of the United States or the Constitution of Tennessee and that there is
       an adequate record of the original trial proceeding available for such review, the
       judge can:

       (1) If a transcript was filed, grant a delayed appeal;

       (2) If, in the original proceedings, a motion for a new trial was filed and overruled but
       no transcript was filed, authorize the filing of the transcript in the convicting court;
       or

       (3) If no motion for a new trial was filed in the original proceeding, authorize such
       motion to be made before the original trial within thirty (30) days. Such motion shall
       be disposed of by the original trial court as if the motion had been filed under
       authority of Rule 59 of the Rules of Civil Procedure. (Emphasis added).


       Tennessee Code Annotated section 40-30-211 provides in pertinent part as follows:

       40-30-211. Final disposition of petitions.–(a) If the court finds that there was such
       a denial or infringement of the rights of the prisoner as to render the judgment void
       or voidable, including a finding that trial counsel was ineffective on direct appeal, the
       court shall vacate and set aside the judgment or order a delayed appeal as hereinafter
       provided and shall enter an appropriate order and any supplementary orders that may
       be necessary and proper. Costs shall be taxed as in criminal cases. (Emphasis
       added).



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        We construe the plain and ordinary meaning of these statutes to be that, if there is a finding
that counsel was ineffective on direct appeal, the court shall set aside the judgment, or order a
delayed appeal as provided in Tennessee Code Annotated section 40-30-213(a), which specifically
details that a delayed appeal is to be granted only when the petitioner has been denied the right to
an appeal.

        Furthermore, when a petitioner alleges ineffective assistance of counsel on direct appeal from
a conviction, there is still a requirement that the petitioner, in order to prevail, must prove that his
counsel’s performance was deficient and that the petitioner was prejudiced by the counsel’s deficient
performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); Cooper v. State, 849 S.W.2d
744, 747 (Tenn. 1993). In this case, the post-conviction court’s order, which was made a part of this
record, makes no finding that the Defendant was prejudiced by any deficient performance by his
original trial counsel.

        Defendant has already been granted a direct appeal; he was thus not “denied the right to an
appeal from the original conviction” as required for relief under Tennessee Code Annotated section
40-30-213. Even if the post-conviction court had found that Defendant was prejudiced by the
purported deficient representation by trial counsel, and that Defendant was prejudiced and entitled
to post-conviction relief, the trial court, under the appropriate statutes, should have voided the
judgment and ordered a new trial or, if the deficient performance was related only to sentencing,
ordered a new sentencing hearing.

        We find that if the law were otherwise, and we reached the merits of the second “direct
appeal” concerning the issue of the appropriateness of consecutive sentencing, then we would set
a precedent for defendants to have, in effect, the very real chance of at least two direct appeals from
convictions. For instance, if appellate counsel decided not to present non-frivolous issues on direct
appeal (which our case law permits, see Porterfield v. State, 897 S.W.2d 672, 678-79 (Tenn. 1995)
cert. denied, 516 U.S. 946, 116 S. Ct. 385, 133 L. Ed. 2d 307 (1995)), and a post-conviction court
later held that trial counsel was deficient for not raising the issue, the defendant could in effect gain
a second direct appeal of any issues omitted from a brief in the initial direct appeal.

        We hold that the present direct appeal from the conviction in case number 62290A of the
Knox County Criminal Court is not properly before this court. Nothing in the post-conviction
statutes, or the applicable case law, allows a “delayed appeal” when a defendant/petitioner has
clearly already had a direct appeal heard on the merits.

        Accordingly, the appeal is dismissed.

                                           CONCLUSION

       The post-conviction court, under the circumstances of this case, could not order a “delayed
appeal.” Therefore, this second direct appeal from Defendant’s convictions is dismissed.


                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE


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