                                                                                       06/13/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                        Assigned on Briefs February 5, 2019

           JOSHUA L. HUTCHERSON v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Henderson County
                       No. 15-092-3       Kyle Atkins, Judge
                     ___________________________________

                          No. W2018-01135-CCA-R3-PC
                      ___________________________________


Following the post-conviction court’s granting of a delayed appeal, the petitioner
challenges the trial court’s application of enhancement factor (6) in determining the
petitioner’s sentence. 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 JOHN EVERETT WILLIAMS,
P.J. and CAMILLE R. MCMULLEN, J., joined.

Michael Thorne, Lexington, Tennessee, for the appellant, Joshua L. Hutcherson.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Jody Pickens, District Attorney General; and Chris Post,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             Facts and Procedural History

       On October 19, 2015, the petitioner, Joshua L. Hutcherson, entered an open plea to
four counts of vehicular assault, one count of driving on a revoked license with prior
DUI, four counts of reckless aggravated assault, one count of leaving the scene of an
accident, and one count of felony reckless endangerment, with sentencing to be
determined by the trial court. A sentencing hearing was held on December 18, 2015, and
the petitioner received an effective sentence of fourteen years. An appeal of the trial
court’s sentencing determination was not filed.

        On July 28, 2016, the petitioner filed a timely pro se petition for post-conviction
relief, alleging the trial court erred in imposing consecutive sentences. After the
appointment of counsel, the petitioner filed an amended petition for post-conviction
relief, arguing the trial court’s application of enhancement factor (6) was erroneous. The
petitioner subsequently filed a second amended petition for post-conviction relief
requesting a delayed appeal based on trial counsel’s failure to pursue an appeal of the
petitioner’s sentence.

       On May 21, 2018, without holding an evidentiary hearing, the post-conviction
court entered an order granting the petitioner a delayed appeal. This timely appeal
followed.

                                         Analysis

       On appeal, the petitioner argues the trial court erred in applying enhancement
factor (6) because the factor is also an element of one of the crimes for which he was
being sentenced. 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
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
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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
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)).

        Our supreme court has addressed the issue of trial counsel’s failure to timely file a
motion for new trial, finding it both “deficient” and “presumptively prejudicial” because
it “resulted in the failure to preserve and pursue the available post-trial remedies and the
complete failure to subject the State to the adversarial process.” Wallace v. State, 121
S.W.3d 652, 658 (Tenn. 2003). However, the Court stopped short of adopting a per se
rule. Rather, the Court concluded

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       a petitioner in a post-conviction proceeding must establish that he or she
       intended to file a motion for new trial and that but for the deficient
       representation of counsel, a motion for new trial would have been filed
       raising issues in addition to sufficiency of the evidence.

Id. at 659.

       Here, although the petitioner requested a delayed appeal due to trial counsel’s
failure to appeal his sentence, he failed to include “allegations of fact” supporting his
claim that trial counsel was ineffective and a delayed appeal was warranted. Tenn. Code
Ann. § 40-30-104(e). The argument section of his petition simply quotes the language of
Tennessee Supreme Court Rule 28, section 9(D) and Tennessee Code Annotated section
40-30-113 without alleging any facts supporting his request for relief.

       Furthermore, the post-conviction court failed to follow the procedures outlined in
Tennessee Code Annotated section 40-13-113(a) in granting the petitioner a delayed
appeal.

       (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.
                                             -4-
      (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 (emphasis added).

        Here, the post-conviction court entered an order granting the petitioner a delayed
appeal without holding the required hearing. In addition, the court’s order did not contain
any findings of fact or conclusions of law. Because the record does not contain the post-
conviction court’s reasoning for granting the delayed appeal, we are unable to determine
whether the delayed appeal was properly granted or whether the petitioner is entitled to
relief on the issues before us.

       Before granting a delayed appeal, the post-conviction court should have followed
the procedure outlined in Tennessee Code Annotated section 40-30-113(a)(3) and
conducted a hearing to determine whether a delayed appeal is appropriate based on trial
counsel’s failure to file an appeal. 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.

                                       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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