                                                                                          02/15/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 11, 2018

          SHAROD WINFORD MOORE v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Marshall County
                      No. 17CR55 Franklin L. Russell, Judge
                     ___________________________________

                           No. M2017-02314-CCA-R3-PC
                       ___________________________________


Following the post-conviction court’s granting of a delayed appeal, the petitioner
challenges the trial court’s denial of his request for an instruction charging the jury that
Jason McCollum was an accomplice as a matter of law. After reviewing the record and
considering the applicable law, we conclude the post-conviction court did not follow the
proper procedures in granting a delayed appeal and remand the case to the post-
conviction court for further proceedings consistent with this opinion.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed,
                             Vacated, and Remanded

J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.
and CAMILLE R. MCMULLEN, JJ., joined.

M. Wesley Hall IV, Unionville, Tennessee, for the appellant, Sharod Winford Moore.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Robert J. Carter, District Attorney General; and Weakley E.
Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                              Facts and Procedural History

      In 2014, the petitioner was indicted by the Marshall County Grand Jury on one
count of first degree murder. After a jury trial, the petitioner was found guilty of first
degree murder and sentenced to life imprisonment. The judgment was entered on
November 14, 2014.
        Trial counsel filed a motion for new trial on January 6, 2015, twenty-two days
    1
late. However, the trial court failed to recognize the untimeliness of the motion and a
hearing was held on March 13, 2015, where the motion was orally overruled. Because
the untimely motion for new trial failed to toll the thirty-day period for filing an appeal,
trial counsel filed an untimely notice of appeal on April 10, 2015.

        On direct appeal, the petitioner argued (1) the evidence was insufficient to support
his conviction; (2) the trial court erred in overruling his motion for change of venue; (3)
the trial court erred in denying his request to present evidence of the victim’s propensity
for violence; (4) the trial court erred in denying his request to charge the jury that Jason
McCollum was an accomplice as a matter of law; (5) the trial court erred in allowing an
incompetent witness to testify; (6) the trial court erred in denying a request to cross-
examine Clifford Watkins regarding a previous arrest and determination that he was
incompetent to stand trial; (7) the trial court erred in denying a pre-trial motion to prevent
the State from eliciting testimony that the petitioner was a member of the Vice Lords
gang; (8) the prosecutor engaged in misconduct during closing arguments by misstating
the law; and (9) the State committed a Brady violation by providing redacted exculpatory
witness statements. State v. Sharod Winford Moore, No. M2015-00663-CCA-R3-CD,
2016 WL 3610438, at *1 (Tenn. Crim. App. June 28, 2016), perm. app. denied (Tenn.
Nov. 17, 2016). This Court determined all issues except sufficiency were waived due to
trial counsel’s failure to file a timely motion for new trial, and, in addition, the issue of
sufficiency was also waived as a result of trial counsel’s failure to cite to the record
within the petitioner’s brief. Id. at *8. However, because of the severity of the
petitioner’s conviction, the untimely appeal was waived, and the sufficiency of the
evidence was reviewed. Id. at *9. Ultimately, this Court held the evidence was sufficient
to support the conviction of first degree murder. However, in a footnote, this Court
noted, although the trial court erred in failing to give the petitioner’s requested jury
instruction that Jason McCollum was an accomplice as a matter of law, any error was
harmless because Mr. McCollum’s testimony was sufficiently corroborated. Id. at *9
n.13, 11.

        On June 5, 2017, the petitioner filed a timely pro se petition for post-conviction
relief, alleging the State introduced inadmissible evidence at the preliminary hearing and
trial, the petitioner’s sentence is illegal, and trial counsel was ineffective for filing an
untimely motion for new trial and failing to object to the inadmissible evidence or illegal
sentence. After the appointment of counsel, the petitioner filed an amended petition for
post-conviction relief, claiming trial counsel was ineffective in failing to call Polly
Crabtree and Jeffrey “Pookie” Mitchell as witnesses at trial, opening the door at trial

        1
        Because the untimely motion for new trial was not included in the record, we do not
know precisely what arguments were made therein.
                                            -2-
regarding the petitioner’s membership in the Vice Lords street gang, failing to have the
petitioner transported to court for a pretrial motion, and failing to ask for plain error
review on appeal.

       On October 13 and November 2, 2017, the post-conviction court held an
evidentiary hearing, where trial counsel admitted she had the incorrect dates on her
calendar, causing her to file the petitioner’s motion for new trial after the thirty day
deadline. She did not realize the motion was untimely until she read the State’s brief on
direct appeal. On November 6, 2017, the post-conviction court entered an order granting
the petitioner a delayed appeal based on trial counsel’s failure to file a timely motion for
new trial and notice of appeal. The petitioner’s remaining post-conviction claims were
dismissed.

       In granting the delayed appeal, the post-conviction court concluded:

               It is, however, concluded that the representation of [trial counsel] in
       filing her [m]otion for [n]ew [t]rial late and in filing her [n]otice of [a]ppeal
       late fell below the applicable standard. But for those errors, the [petitioner]
       would have had appellate review of all of the issues raised in the original
       [m]otion for [n]ew [t]rial, denied by the trial court, and not reviewed by the
       Court of Appeals in their original opinion. A new hearing on the original
       [m]otion for [n]ew [t]rial and the opportunity to file a new motion for new
       trial appear to be unnecessary to obtain what the [p]etitioner has lost. There
       was no allegation in the post-conviction proceeding that issues were
       omitted from the original [m]otion for [n]ew [t]rial, but rather it was simply
       alleged that the [m]otion was filed late and review of certain issues was
       thereby lost.

       Following the post-conviction court’s decision, the petitioner filed this timely
appeal.

                                          Analysis

       On appeal, the petitioner argues the trial court erred in failing to charge the jury
that Jason McCollum was an accomplice as a matter of law. However, before addressing
this issue on the merits, we must first determine whether the post-conviction court
followed the proper procedures in granting the petitioner a delayed appeal.

      Post-conviction relief is available when a “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.” Tenn. Code Ann. § 40-30-103. The
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petitioner bears the burden of proving his post-conviction factual allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-110(f). The findings of fact established
at a post-conviction evidentiary hearing are conclusive on appeal unless the evidence
preponderates against them. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). This
Court will not reweigh or reevaluate evidence of purely factual issues. Henley v. State,
960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial court’s
application of the law to the facts is de novo, with no presumption of correctness. See
Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of
counsel presents mixed questions of fact and law. Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001). Thus, this Court reviews the petitioner’s post-conviction allegations de
novo, affording a presumption of correctness only to the post-conviction court’s findings
of fact. Id.; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that the
standard for determining ineffective assistance of counsel applied in federal cases is also
applied in Tennessee). The Strickland standard is a two-prong test:

              First, the defendant must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the defendant by
       the Sixth Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. Id. Thus, courts are not required to even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id.;
see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       A petitioner proves a deficiency by showing “counsel’s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688;
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the
Strickland test is satisfied when the petitioner shows there is a reasonable probability, or
“a probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
                                           -4-
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. However, “[b]ecause of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).

       It is undisputed the petitioner’s motion for new trial was untimely filed, and trial
counsel’s failure to timely file a motion for new trial is both “deficient” and
“presumptively prejudicial” because it “result[s] in the failure to preserve and pursue the
available post-trial remedies and the complete failure to subject the State to the
adversarial appellate process.” Wallace v. State, 121 S.W.3d 652, 659 (Tenn. 2003).
While a delayed appeal is indeed the proper remedy for this error, the post-conviction
court failed to follow the proper procedures outlined in Tennessee Code Annotated
section 40-30-113.

       (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 a 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 a motion to be made before the original trial court within thirty
       (30) days. The 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.

       (b) An order granting proceedings for a delayed appeal shall be deemed the
       final judgment for purposes of review. If either party does appeal, the time
       limits provided in this section shall be computed from the date the clerk of
       the trial court receives the order for the appellate court determining the
       appeal.

                                             -5-
       (c) The judge of the court which sentenced a prisoner who has sought and
       obtained relief from that sentence by any procedure in a federal court is
       likewise empowered to grant the relief provided in this section.

Tenn. Code Ann. § 40-30-113.

       In addition, Rule 28, section 9(D)(1)(b)(i) of the Rules of the Tennessee Supreme
Court explicitly states:

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

       Here, the post-conviction court entered an order granting the petitioner a delayed
appeal based on trial counsel’s ineffectiveness in filing an untimely motion for new trial,
limiting the new appeal to the issues not resolved by this Court on direct appeal. In
addition, the post-conviction court held it was unnecessary for the petitioner to file a new
motion for new trial, stating “[s]uch a motion was filed, argued, and overruled in the trial
court.” However, it is well-settled that an untimely motion for new trial is a nullity.
Tenn. R. Crim. P. 33(b). Moreover, rather than staying the post-conviction proceedings
pending the disposition of the delayed appeal, the post-conviction court simply dismissed
the remainder of the petitioner’s claims. See Torres v. State, 543 S.W.3d 141, 148 (Tenn.
Crim. App. 2017) (noting that holding the remainder of the petitioner’s post-conviction
claims in abeyance allows the petitioner to amend the original petition and present new
claims stemming from the handling of the delayed appeal).

       The post-conviction court, in granting a delayed appeal, should have followed the
procedure outlined in Tennessee Code Annotated section 40-30-113(a)(3), allowing the
petitioner to file a proper motion for new trial within thirty days, and Rule 28, section
9(D)(1)(b)(i) of the Rules of the Tennessee Supreme Court, directing the post-conviction
court to stay the original petition until the delayed appeal is completed. See Roy Thomas
Rogers, Jr. v. State, No. W2017-01939-CCA-R3-PC, 2018 WL 6075655, at *5 (Tenn.
Crim. App. Nov. 20, 2018) (concluding the post-conviction court should have followed
the correct procedures and allowed the petitioner to file a proper motion for new trial
within 30 days); Torres, 543 S.W.3d at 146 (holding the post-conviction court erred in
granting the petitioner a new trial instead of allowing him to file a motion for new trial).
Accordingly, we reverse and vacate the order granting the delayed appeal and remand
this case to the post-conviction court for proceedings consistent with this opinion.
                                           -6-
                                      Conclusion

       Because the post-conviction court failed to follow the proper procedures prior to
granting the petitioner a delayed appeal, we reverse and vacate the order granting a
delayed appeal and remand the case to the post-conviction court for further proceedings
consistent with this opinion.




                                            ____________________________________
                                            J. ROSS DYER, JUDGE




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