         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 November 27, 2001 Session

                    ROGER HARRIS v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Unicoi County
                            No. 4280    Lynn W. Brown, Judge



                                 No. E2001-00782-CCA-R3-PC
                                       August 22, 2002

Petitioner appeals the trial court’s denial of post-conviction relief. On appeal, petitioner alleges
(1) ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel, (3) he
was unconstitutionally denied bail, and (4) the indictment against him for first degree murder
was unconstitutionally amended. We grant petitioner a delayed appeal, and we stay further
proceedings on his remaining post-conviction claims.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed in Part;
             Delayed Appeal Granted; and Post-Conviction Appeal Stayed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
ALAN E. GLENN, JJ., joined.

Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, Roger Harris.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney
General; Joe C. Crumley, Jr., District Attorney General; and Kenneth C. Baldwin, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        On June 27, 1991, petitioner Roger Harris was convicted of first degree murder and
reckless endangerment with a deadly weapon. The convictions were affirmed on direct appeal.
State v. Harris, No. 03C01–9201-CR-19, 1992 WL 171368 (Tenn. Crim. App., filed July 23,
1992, at Knoxville). No Rule 11 application for permission to appeal to the Tennessee Supreme
Court was filed. On March 15, 1995, petitioner filed a pro se petition for post-conviction relief.
The public defender’s office was appointed to represent him, and two amendments were filed to
the original petition. The State filed a motion to dismiss and answer on August 19, 1996. Both
the State and petitioner concede that this case has been continued numerous times for various
reasons.

        On September 22, 1997, new counsel for petitioner filed an entry of appearance in the
case after being retained by petitioner’s family. On September 29, 1997, Judge Lynn W. Brown
wrote to new counsel informing him that the public defender was still counsel of record for
petitioner. The trial court stated that he would allow substitution if new counsel was prepared to
go forward with the evidentiary hearing set for October 17, 1997. At that hearing, the trial court
ordered that the substitution of counsel could occur if petitioner’s family would reimburse the
public defender in the amount of $500.00. This Court subsequently ordered that the trial court
could not require petitioner’s family to pay $500.00 to the public defender’s office. Harris v.
State, No. 03C01-9712-CR-00516, 1999 WL 39503, at *2 (Tenn. Crim. App., filed Jan. 28,
1999, at Knoxville). Following this decision, the trial court allowed new counsel to be
substituted.

        On August 19, 1999, petitioner, through his new counsel, filed an amended petition for
post-conviction relief alleging that he suffered ineffective assistance of counsel at trial and on
appeal. The trial court dismissed the petition for failure to verify the petition by oath or
affirmation. On July 28, 2000, this Court reversed the trial court’s dismissal of petitioner’s
petition. Harris v. State, No. E1999-02056-CCA-R3-PC, 2000 WL 10381221 (Tenn. Crim.
App., filed July 28, 2000, at Knoxville). Following this Court’s remand, the State filed an
answer to the petition on January 5, 2001. The trial court conducted an evidentiary hearing on
March 5, 2001. The trial court ultimately denied petitioner relief. A timely notice of appeal
followed on March 30, 2001.

                                               Facts

        Because we have concluded that the petitioner is entitled to a delayed appeal, we limit
our recitation of facts to those pertinent to that holding. Trial counsel represented petitioner on
direct appeal. At the post-conviction hearing, petitioner testified that after this Court rejected his
direct appeal, trial counsel came to see him in the jail and told him that the next step was to file
an appeal with the Tennessee Supreme Court. If that was unsuccessful, trial counsel said that he
would file a petition for post-conviction relief. However, petitioner stated that trial counsel
never filed an appeal to the Tennessee Supreme Court and never informed petitioner that he was
not going to file an appeal to the Tennessee Supreme Court.

       Trial counsel testified that he had been practicing law for thirty-two years and that at
least 95% of his practice was criminal defense. He stated that during that time he had been
counsel in excess of fifty homicide cases. Due to the lapse of time between petitioner’s trial and
the post-conviction hearing, trial counsel had limited recollection about the case and stated that
he was unable to find his file from petitioner’s case. Notwithstanding, trial counsel testified
about his general course of practice. Trial counsel stated that he met with petitioner at Northeast
Correctional Center after this Court denied petitioner relief on direct appeal. Although he could
not recall the substance of the conversation, trial counsel maintained that if he promised to file
an appeal with the Tennessee Supreme Court, he would have done so. He reasoned that because
he never filed an appeal with the Supreme Court, he must not have promised to do so.




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                                              Analysis

        Petitioner complains that appellate counsel failed in his representation of petitioner on
appeal for various reasons, among them is petitioner’s claim that counsel was deficient for
failing to appeal to the Tennessee Supreme Court. Therefore, we must first determine whether a
delayed appeal to the Tennessee Supreme Court is appropriate relief because such relief would
preclude this Court from addressing the merits of the petitioner’s post-conviction appeal. See
Tenn. Sup. Ct. R. 28 § 9(D).

        Petitioner submits that he is entitled to a delayed appeal because trial counsel did not
properly comply with Rule 14 of the Tennessee Supreme Court Rules regarding withdrawal of
an attorney of an indigent client. However, the record reflects that trial counsel was retained by
the petitioner’s family, and there was no finding of indigency for the purposes of representation
during trial or on direct appeal. Nonetheless, we conclude that the dispositive issue in this case
is not whether counsel was retained or appointed but whether the petitioner was notified by
counsel that no appeal would be sought.

       We acknowledge that State v. Brown, 653 S.W.2d 765, 767 (Tenn. Crim. App. 1983),
and its progeny provide for a delayed appeal based upon Supreme Court Rule 14, which
expressly refers to indigent petitioners. However, this Court reiterated, post-Brown, that a
delayed appeal should also be granted where the petitioner is denied the opportunity to pursue an
appeal in the Tennessee Supreme Court through no fault of his own. See Pinkston v. State, 668
S.W.2d 676, 677 (Tenn. Crim. App. 1984) (citing Moultrie v. State, 542 S.W.2d 835, 838 (Tenn.
Crim. App. 1976)).

        As we originally recognized in Moultrie v. State, the “unilateral termination of an appeal,
without confirmation from the client, . . . deprives the defendant in a criminal case of his right to
effective assistance of counsel.” 542 S.W.2d at 838. In Moultrie, retained counsel “failed to file
a petition for certiorari despite the clear understanding with his client that this action would be
taken.” 542 S.W.2d 835, 838 (Tenn. Crim. App. 1976). This Court recognized that “in doing so,
[counsel had] unilaterally terminated the defendant’s appeal without notice and thus deprived his
client of the opportunity to secure substitute counsel.” Id. Likewise, the instant petitioner’s
direct appeal was unilaterally terminated following first-tier review by this Court.

         Petitioner testified that trial counsel promised petitioner that trial counsel would appeal to
the Tennessee Supreme Court. Trial counsel did not have any recollection regarding this matter
but stated that if he promised petitioner that he would appeal, then he would have appealed.
However, trial counsel did not testify that he had notified petitioner that no appeal would be
sought. Therefore, it appears that although nothing was promised to petitioner, petitioner was
still never notified by counsel that he did not intend to file an appeal. As such, we conclude that
any potential appeal following first-tier review was terminated through no fault of petitioner. As
we stated, infra, the “unilateral termination of a direct appeal following first-tier review entitles a
prospective appellant to relief in the form of a delayed appeal.” Pinkston v. State, 668 S.W.2d
676, 677 (Tenn. Crim. App. 1984). Accordingly, the petitioner is entitled to a delayed appeal.


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                                        CONCLUSION

        We conclude that the petitioner was unilaterally deprived of his right to seek review by
the Tennessee Supreme Court pursuant to Rule 11, T.R.A.P. Accordingly, we grant the
petitioner a delayed appeal to seek Rule 11 review. Pursuant to Tennessee Supreme Court Rule
28 § 9(D), the petitioner’s post-conviction proceedings are stayed pending the final deposition of
the delayed appeal to seek such review.




                                                  ______________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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