         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs May 6, 2008

                  BERNARD HENRY v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                           No. 02-05634    W. Fred Axley, Judge



                     No. W2007-00679-CCA-R3-PC - Filed July 25, 2008


The Petitioner, Bernard Henry, appeals from the Shelby County Criminal Court’s order dismissing
his petition for post-conviction relief. He argues that the dismissal was erroneous because he did
not receive the effective assistance of trial counsel and because the post-conviction court improperly
prevented him from presenting evidence that his appellate counsel was ineffective. After a review
of the record, we conclude that the post-conviction court erred in denying the Petitioner an
opportunity to be heard on his claim of ineffective assistance of appellate counsel. Accordingly, the
case is remanded for further proceedings.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
                                        Remanded

DAVID H. WELLES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., J.,
and DAVID G. HAYES, SR. J., joined.

Jason Poyner, Memphis, Tennessee, for the appellant, Bernard Henry.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Tom Hoover, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                     Factual Background
        A Shelby County jury convicted the Petitioner of two counts of aggravated child abuse and
neglect, a Class A felony. See Tenn. Code Ann. § 39-15-402. The trial court sentenced him to
concurrent sentences of twenty-five years as a violent offender. On direct appeal, this Court
affirmed his convictions but modified the length of his sentences to twenty years. See State v.
Bernard J. Henry, No. W2003-03045-CCA-R3-CD, 2004 WL 2848382 (Tenn. Crim. App., Jackson,
Dec. 9, 2004), perm. to appeal denied, (Tenn. Mar. 28, 2005).
       On May 20, 2005, the Petitioner, pro se, filed a petition for post-conviction relief, which was
amended following the appointment of counsel. The Petitioner sought relief on the basis that trial
and appellate counsel rendered ineffective assistance.

       A hearing was held on the petition on October 5, 2006, at which the Petitioner and trial
counsel testified. The Petitioner then attempted to call appellate counsel as a witness. The State
objected, and the following colloquy occurred:

                 [POST-CONVICTION COUNSEL]: Essentially, that’s our proof as far as
        the, [trial counsel] goes. Now, he is represented on appeal by Mr. Brayton. And, that
        was the other issue that I was talking [sic].

               [THE STATE]: Judge, do I have, does [p]ost[-c]onviction cover appellate
        counsel?

                THE COURT: No.

                [THE STATE]: I didn’t think so. So, I would object to any further proof
        along that line.

                [POST-CONVICTION COUNSEL]: All right. I get a rule [sic] on it today?

               THE COURT: No, but you can raise that issue on appeal, if there is a need
        for appeal, that you were prevented in calling the appellate lawyer. You may make
        new law. I’m serious.

       The post-conviction court then denied relief by written order on February 23, 2007,
concluding that the Petitioner did not prove that he received the ineffective assistance of counsel.
This appeal followed.

                                             ANALYSIS
        The Petitioner now appeals to this Court, arguing that (1) the trial counsel’s performance was
constitutionally inadequate and (2) the post-conviction court erred in preventing him from offering
proof of appellate counsel’s ineffectiveness. The State concedes error regarding denial of the
Petitioner’s right to be heard on claims of ineffective assistance of appellate counsel, and we agree.

         In Carpenter v. State, 126 S.W.3d 879 (Tenn. 2004), our supreme court held that the same
test that applied to claims of ineffective assistance of trial counsel under the federal constitution, also
applied to determine whether appellate counsel was constitutionally effective: “To determine
whether appellate counsel was constitutionally effective, we use the two-prong test set forth in
Strickland v. Washington, 466 U.S. 668 (1984)—the same test that is applied to claims of ineffective
assistance of trial counsel asserted under the Sixth Amendment to the United States Constitution.”
Carpenter, 126 S.W.3d at 886; see also Smith v. Murray, 477 U.S. 527, 535-36 (1986) (applying
Strickland to a claim of attorney error on appeal).


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        Although the issue of trial counsel’s performance has been determined by the post-conviction
court, the Petitioner properly raised the claim of ineffective assistance of appellate counsel in his
petition and is entitled to have it considered by and determined by the post-conviction court. See
Laraiel Winton v. State, No. E2006-02392-CCA-R3-PC, 2007 WL 2438112, at *1(Tenn. Crim.
App., Knoxville, Aug. 29, 2007). Considerations of judicial economy and the avoiding of piecemeal
appeals mandate that we remand this case to the post-conviction court. The Petitioner has had no
opportunity to raise the issue of ineffective assistance of appellate counsel, and he is entitled to
present proof on the merits of this claim. After the post-conviction court considers and rules on the
merits of the Petitioner’s claim of ineffective assistance of appellate counsel, appellate review of the
post-conviction court’s rulings on the ineffective assistance of trial and appellate counsel may
proceed anew in accordance with the Tennessee Rules of Appellate Procedure.

                                       CONCLUSION
        Based upon the foregoing rationale, the order of the post-conviction court dismissing the
petition is vacated. The case is remanded for further proceedings consistent with this opinion.



                                                        ______________________________
                                                        DAVID H. WELLES, JUDGE




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