        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs August 12, 2014

            DONNA LEIGH PEARSON v. STATE OF TENNESSEE

              Appeal from the Criminal Court for Davidson County
            Nos. 2009-D-3042, 2009-D-3183  Cheryl Blackburn, Judge




              No. M2013-02539-CCA-R3-PC - Filed September 15, 2014


The petitioner, Donna Leigh Pearson, appeals the summary dismissal of her amended petition
for post-conviction relief. Because the post-conviction court erred by summarily dismissing
the amended petition as conceded by the State, the case is remanded to that court for an
evidentiary hearing solely on the issue of counsel’s handling of the delayed direct appeal.

            Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and D. K ELLY T HOMAS, J R., JJ., joined.

Donna Leigh Pearson, Nashville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Stacey Smith, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               The petitioner pleaded guilty in case number 2009-D-3042 to one count of
burglary and in case number 2009-D-3183 to one count of theft of property valued at $1,000
or more but less than $10,000. Following a sentencing hearing, the trial court imposed
Range III sentences of 10 years for both convictions, ordered the sentences to be served
consecutively, and denied all forms of alternative sentencing. See Donna Leigh Pearson v.
State, No. M2011-00216-CCA-R3-PC, slip op. at 1 (Tenn. Crim. App., Nashville, Mar. 23,
2012). The petitioner filed a notice of appeal in this court but moved for, and was granted,
voluntary dismissal of her appeal. See id., slip op. at 14 (“The record indicates that the
[p]etitioner did perfect an appeal in this case, and this [c]ourt gave her an appeal number.
The [p]etitioner voluntarily withdrew her appeal, presumably based upon the inaccurate
advice she received from the prison law clerks.”). Thereafter, the petitioner filed a pro se
petition for post-conviction relief, alleging that she was denied the effective assistance of
counsel and that her guilty pleas were not knowingly and voluntarily entered. See id. The
post-conviction court granted the petitioner a delayed appeal for the purpose of challenging
her sentence but denied the remaining claims for relief. See id., slip op. at 10.

               In the delayed appeal that followed, the petitioner challenged the length of her
sentence as well as the denial of alternative sentencing. We affirmed the denial of post-
conviction relief as well as the sentence imposed by the trial court, observing, as is relevant
to the petitioner’s claim in this case, “Because the [p]etitioner was on bond for one of the
offenses when she committed the other offense, consecutive sentencing was mandatory.” Id.,
slip op. at 15-16. Our supreme court denied the petitioner’s application for permission to
appeal. See Donna Leigh Pearson v. State, No. M2011-00216-SC-R11-PC (Tenn. Aug. 16,
2012).

               The petitioner then filed in this court an application for extraordinary appeal
pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. In her application, the
petitioner claimed that “the trial court after granting her a delayed direct appeal, should have
stayed further proceedings on the post-conviction petition to allow the [petitioner] the
opportunity to amend her petition to include any additional grounds for relief which may
have arisen during the delayed direct appeal” and sought to amend her original petition.
Donna Leigh Pearson v. State, No. M2012-02609-CCA-R10-CO (Tenn. Crim. App.,
Nashville, Jan. 17, 2013) (Order). We denied the petitioner’s application for extraordinary
appeal but noted that Rule 28 of the Rules of the Tennessee Supreme Court would permit the
petitioner to amend her original petition to include any “new issues cognizable in a post-
conviction proceeding [that] result[ed] from the handling of the delayed appeal.” Id.

              On February 12, 2013, the petitioner filed an amended petition for post-
conviction relief pursuant to Supreme Court Rule 28, claiming that her appellate counsel
performed deficiently when handling the delayed appeal by failing to challenge the trial
court’s ruling that consecutive sentencing was mandatory in this case. She claimed that
although she did commit new offenses while on bond, she did not commit either of the
conviction offenses while on bond and that all of the new charges she incurred while on bond
in the conviction cases were dismissed upon her pleas in these cases. Thus, the petitioner
claimed, she was not on bond in one of the cases that resulted in conviction when she
committed the offense in the other case that resulted in conviction. As a result, the petitioner
maintains, the law did not mandate the imposition of consecutive sentences. See Tenn. R.
Crim. P. 32 (c)(3)(C); T.C.A. § 40-20-111(b) (deeming consecutive sentencing mandatory
when a defendant commits a felony while on bond and the defendant is subsequently

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convicted of both offenses). The petitioner insisted that appellate counsel performed
deficiently when handling the delayed appeal by failing to properly frame the consecutive
sentencing issue so that it could be addressed by this court.

               The post-conviction court summarily dismissed the amended petition, finding
that the petition “contains no new issues; all issues raised have been addressed in [the
p]etitioner’s direct appeal or during her original post-conviction evidentiary hearing.” In its
order denying relief, the post-conviction court again noted that consecutive sentences were
imposed “as an operation of law since [the p]etitioner committed the offenses while on
bond.” The court observed that the order of the convictions was irrelevant so long as the
petitioner was convicted of both the offense for which she was on bond and the offense
committed while on bond. The court did not, however, address the petitioner’s specific claim
that appellate counsel performed deficiently by failing to present her claim that consecutive
sentencing was not mandatory in her case. The State concedes that the trial court erred by
summarily dismissing the petition and avers that if the petitioner’s claim is true, she may be
entitled to post-conviction relief due to appellate counsel’s deficient handling of the delayed
appeal. The State contends that the case should be remanded to the post-conviction court for
an evidentiary hearing on the petitioner’s claim.

               We are inclined to agree with the State that, at this point, the petitioner is
entitled to an evidentiary hearing. Supreme Court Rule 28, section 9 provides: “Where a
delayed appeal is granted and the petitioner is unsuccessful on appeal, and new issues
cognizable in a post-conviction proceeding result from the handling of the delayed appeal,
the petitioner may amend the original post-conviction petition to include such new issues.”
Tenn. Sup. Ct. R. 28, § 9(D)(3)(a). The issue whether appellate counsel performed
deficiently by failing to raise the claim that consecutive sentencing was not mandatory in this
case arose specifically “from the handling of the delayed appeal.” In consequence, the
petitioner is entitled to an evidentiary hearing on this single claim of ineffective assistance
of counsel. We note that a free-standing claim relative to the imposition of consecutive
sentences in this case, regardless of whether it qualifies as having been waived or previously
determined, see T.C.A. § 40-30-106(g), (h), would not be a cognizable claim for post-
conviction relief, see id. § 40-30-103 (“Relief under this part shall be granted when the
conviction or sentence is void or voidable because of the abridgment of any right guaranteed
by the Constitution of Tennessee or the Constitution of the United States.”).

               Accordingly, the judgment of the trial court summarily dismissing the amended
petition for post-conviction relief is reversed, and the case is remanded to the post-conviction
court for an evidentiary hearing to determine whether appellate counsel performed deficiently
when handling the delayed direct appeal.



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      _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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