        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                             Assigned on Briefs July 18, 2012

       FREDERICK ALEXANDER AVERY v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                   No. 2006-C-2451    Cheryl A. Blackburn, Judge


                No. M2011-02493-CCA-R3-PC - Filed February 6, 2013


The petitioner, Frederick Alexander Avery, was convicted by a jury in the Davidson County
Criminal Court of aggravated robbery, especially aggravated robbery, reckless endangerment,
and attempted second degree murder. As a violent offender, he received a total effective
sentence of life without the possibility of parole. Subsequently, the petitioner filed a petition
for post-conviction relief, alleging that his trial counsel was ineffective for failing to file a
motion for severance and a motion for a speedy trial and for advising the petitioner to not
testify at trial. The post-conviction court denied relief, holding that the petitioner failed to
establish that counsel was ineffective. However, because trial counsel had miscalculated the
date for filing an appeal to the supreme court, the post-conviction court granted the petitioner
a Rule 11 delayed appeal. See Tenn. S. Ct. R. 28, § 9(D)(1)(b). The petitioner appeals the
denial of post-conviction relief based on his ineffective assistance of counsel claims. Upon
review, we conclude that the post-conviction court properly granted the petitioner a delayed
appeal. However, the post-conviction court erred by not staying the post-conviction
proceeding pending the disposition of the delayed appeal.

                Tenn. R. App. P. 3 Appeal as of Right; Case Remanded.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and D. K ELLY T HOMAS, J R., J., joined.

Elaine Heard, Nashville, Tennessee, for the appellant, Frederick Alexander Avery.

Robert E. Cooper, Jr., Attorney General and Reporter, Meredith DeVault, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                              OPINION

       The petitioner was tried jointly with his brother, David Anthony Avery,1 for the
robbery of a couple, Stephanie Regen and Samuel Gift, during which David Avery slit their
throats. See State v. David Anthony Avery and Frederick Alexander Avery, No. M2008-
01809-CCA-R3-CD, 2009 WL 4724430, at *1 (Tenn. Crim. App. at Nashville, Mar. 1,
2010), perm. to appeal denied, (Tenn. 2010). At the conclusion of the trial, the jury
convicted the petitioner and David Avery of aggravated robbery, especially aggravated
robbery, reckless endangerment, and attempted second degree murder. Id. at *6. This court
affirmed their convictions and sentences on direct appeal. Id. at *1. The petitioner applied
for permission to appeal to our supreme court pursuant to Rule 11 of the Tennessee Rules of
Appellate Procedure; however, the supreme court dismissed the application as untimely.

       Subsequently, the petitioner filed a pro se petition for post-conviction relief, alleging
numerous claims of ineffective assistance. Post-conviction counsel was appointed, and a
hearing was held. At the hearing, the petitioner testified in pertinent part that his counsel was
ineffective because he late-filed the petitioner’s Rule 11 application for permission to appeal
to our supreme court. The petitioner also testified that he filed a timely pro se Rule 11
application but that it was dismissed because he was represented by counsel.

       Trial counsel testified that he had miscalculated the date for filing the Rule 11
application and had filed it one day late. He asserted that he did not file a motion to sever
because there was no legal basis for the motion. Counsel acknowledged that he did not file
a motion for speedy trial, noting that he was appointed in October 2007 and that the trial
occurred April 2008.

       After the hearing, the post-conviction court issued a written order, denying the
petitioner’s post-conviction claims but granting the petitioner a delayed Rule 11 appeal.

       On appeal, the petitioner challenges the denial of his ineffective assistance of counsel
claims. However, we are unable to address the merits of his appeal.

      Although not raised by either party on appeal, we note that Rule 28, section
9(D)(1)(b)(i) of the Rules of the Tennessee Supreme Court explicitly provides:

                Upon determination by the trial court that the petitioner was
                deprived of the right to request an appeal pursuant to Rule 11,


       1
          Some of the individuals in this case share a surname. Therefore, for clarity, we have chosen to
utilize their first names. We mean no disrespect to these individuals.

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              Tennessee Rules of Appellate Procedure, the trial court shall
              enter an order granting the petitioner a delayed appeal, staying
              the post-conviction proceedings pending the final disposition of
              the delayed appeal, and providing that the order is final for
              purposes of appeal under this rule.

This court has explained that “[t]he rule contemplates that the post-conviction court will hear
proof on all post-conviction issues raised by the petition, although the trial judge is required
to hold in abeyance its rulings on all issues other than the delayed appeal.” State v. Howard
Lee Coleman, No. W2006-02601-CCA-R3-PC, 2007 WL 1651882, at *6 (Tenn. Crim. App.
at Jackson, June 7, 2007). By holding the remainder of a petitioner’s post-conviction claims
in abeyance, “the petitioner may amend the original petition to challenge any ‘new issues
cognizable in a post-conviction proceeding result[ing] from the handling of the delayed
appeal.’” Id. (quoting Tenn. Sup. Ct. R. 28, § 9(D)(3)(a)). In the instant case, the post-
conviction court did not comply with the dictates of Supreme Court Rule 28.

        Accordingly, this court must vacate the judgment of the post-conviction court denying
the petitioner’s claims for post-conviction relief and remand to the post-conviction court for
entry of a proper order granting the delayed Rule 11 appeal but holding the post-conviction
proceedings in abeyance pending the final disposition of the Rule 11 application.


                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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