         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs December 2, 2003

                    JOSEPH BROWN v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                            No. P-24735    W. Fred Axley, Judge



                   No. W2002-03014-CCA-R3-PC - Filed February 11, 2004


The petitioner, Joseph Brown, appeals pro se the denial of his petition for post-conviction relief from
his convictions for facilitation of first degree murder and two counts of especially aggravated
kidnapping. He argues that the trial court’s failure to advise him of his constitutional right against
self-incrimination voids his guilty pleas and that the court’s failure to provide him with a transcript
of the post-conviction hearing violated his constitutional rights. Additionally, he argues that the
record does not reflect that counsel who represented him at the post-conviction hearing was relieved
from continuing to represent him on appeal, and that he is entitled to counsel in his appeal to this
court. We agree that the petitioner is entitled to be represented by counsel in the first tier appeal of
the denial of his post-conviction petition and, accordingly, dismiss the appeal and remand to the
post-conviction court with instructions to reenter its findings of fact and conclusions of law, with
the petitioner’s time for appeal to start at the date of reentry, and the petitioner to be represented by
counsel on appeal.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR., and
ROBERT W. WEDEMEYER , JJ., joined.

Joseph Brown, Hardeman County Correctional Facility, Whiteville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Reginald Henderson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        The petitioner pled guilty on February 28, 2000, to facilitation of first degree murder and two
counts of especially aggravated kidnapping, all Class A felonies. He was sentenced as a Range I,
standard offender to fifteen years for the facilitation of first degree murder conviction and as a
violent offender to fifteen years for each of the especially aggravated kidnapping convictions, all to
be served concurrently, for an effective fifteen-year sentence. No direct appeal of the petitioner’s
convictions was taken.

        On March 1, 2001, the petitioner filed1 a pro se petition for post-conviction relief, counsel
was subsequently appointed, and an amended petition was filed on May 23, 2002. In his petitions,
the petitioner alleged that he was denied the effective assistance of trial counsel and that his guilty
pleas were not voluntarily, knowingly, and understandingly entered.

         Apparently, a hearing was held on the post-conviction petition for the post-conviction court’s
order of November 26, 2002, denying the petition, referred to certain pages from the transcript of the
hearing. The petitioner prepared a pro se notice of appeal, which bears the date of November 27,
2002, in the certificate of service and December 11, 2002, as the filing date. In his pro se appellate
brief, in addition to his claims that trial counsel was ineffective, he complains about the fact that he
is not represented by counsel on appeal, saying that the record contains no order releasing appointed
counsel who represented him at the post-conviction hearing from continuing to do so. In our review,
we first will consider the petitioner’s claim that he is entitled to be represented by counsel. With this
claim, we agree. Since the petitioner had no choice but to proceed pro se, as he did, or relinquish
his right to appeal, we must remand this matter to the post-conviction court so that counsel can be
appointed for the petitioner, assuming that previous counsel was relieved, and a notice of appeal can
then be refiled.

         It is without question that the petitioner has a statutory right to be represented by counsel in
the first tier appeal of his post-conviction petition, as we will explain. Tennessee Supreme Court
Rule 28, section 10(A) provides that “[a]n appeal from the dismissal or denial of a post-conviction
petition shall be in accordance with the Tennessee Rules of Appellate Procedure.” In turn, Rule
18(a) of the Tennessee Rules of Appellate Procedure provides:

                 A party who has been permitted to proceed in an action in the trial
                 court as a poor person (which includes a person who has been
                 permitted to proceed there as one who is financially unable to obtain
                 adequate defense in a criminal case) may proceed on appeal as a poor
                 person unless, before or after the appeal is taken, the trial court finds
                 the party is not entitled so to proceed, in which event the trial court
                 shall state in writing the reasons for such finding.

       Tennessee Code Annotated section 40-30-215 provides that “[i]ndigency shall be determined
and counsel and court reporters appointed and reimbursed as now provided for criminal and habeas
corpus cases by chapter 14, parts 2 and 3 of this title.” Tennessee Code Annotated section 40-14-203
requires that an attorney appointed to represent an indigent defendant must continue to do so
“through the initial appellate review,” and section 40-14-205 provides that if the appointed attorney


        1
           W e note that the petition was notarized on February 19, 2001, and that, according to the petitioner’s
certification, he mailed a copy to the Shelby County District Attorney General on February 20, 2001.

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is allowed to withdraw “upon good cause shown, . . . the court shall . . . immediately appoint another
attorney in the former attorney’s place.” In Drummer v. State, 6 S.W.3d 520, 523 (Tenn. Crim. App.
1999), we concluded that these statutes and rules, taken together, entitle a post-conviction petitioner
“to counsel on the direct appeal from the denial of [the] first petition for post-conviction relief.”

        The record on appeal contains neither an explanation as to why counsel who represented the
petitioner before the post-conviction court is no longer representing him nor a determination that the
petitioner no longer is indigent. The petitioner, who is now proceeding pro se in this matter, is
entitled to be represented by counsel, as he has requested. Accordingly, we vacate the order of the
post-conviction court denying the petition for post-conviction relief and direct that counsel be
appointed for the petitioner and that the court reenter its order denying post-conviction relief, with
the time for the petitioner’s appeal beginning to run from the time of the reentry of the order.

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, we vacate the order of the post-
conviction court denying the petition and remand for proceedings consistent with this opinion.



                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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