           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE              FILED
                         JUNE 1997 SESSION               October 3, 1997

                                                    Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk

THOMAS A. MILES,                )
                                )    C.C.A. NO. 03C01-9701-CC-00029
           Appellant,           )
                                )    JEFFERSON COUNTY
VS.                             )
                                )    HON. BEN HOOPER, II,
STATE OF TENNESSEE,             )    JUDGE
                                )
           Appellee.            )    (Post-conviction)




FOR THE APPELLANT:                   FOR THE APPELLEE:


O. DUANE SLONE                       JOHN KNOX WALKUP
     - and -                         Attorney General & Reporter
REBECCA D. SLONE
P.O. Box 1088                        SANDY R. COPOUS
Dandridge, TN 37725                  Asst. Attorney General
                                     450 James Robertson Pkwy.
                                     Nashville, TN 37243-0493

                                     AL C. SCHMUTZER, JR.
                                     District Attorney General

                                     JAMES GASS
                                     Asst. District Attorney General
                                     Sevier County Courthouse
                                     Suite 301
                                     Sevierville, TN 37862




OPINION FILED:____________________



TRIAL COURT REVERSED, REMANDED
FOR NEW SENTENCING HEARING; PRIOR
OPINION VACATED AND REINSTATED


JOHN H. PEAY,
Judge
                                               OPINION



                 The petitioner was convicted of aggravated robbery on October 29, 1991.

Following a sentencing hearing, he was sentenced as a Range II multiple offender to

twenty years in the Tennessee Department of Correction. His conviction was affirmed

by this Court on May 18, 1993.1 The petitioner then filed a pro se petition for post-

conviction relief on November 8, 1993. Counsel was appointed and an amended petition

was subsequently filed. After a hearing on September 13, 1996, the post-conviction court

denied any relief to the petitioner. It is from this denial that he now appeals.



                 The petitioner alleges that he was denied his right to be tried by a fair and

impartial jury and that his trial counsel were ineffective in their representation. After a

review of the record, we find that the petitioner’s trial counsel were ineffective in that they

failed to present any mitigating factors at the petitioner’s sentencing hearing and that they

failed to file a timely application for permission to appeal to the Supreme Court.

Therefore, we remand the case to the trial court for resentencing, and, for purposes of

the delayed appeal, we vacate our judgment in case number 03C01-9207-CR-00243,

dated May 18, 1993, and reinstate it as of the date of release of this opinion.



                 The facts underlying the petitioner’s conviction are as follows. On the night

of February 18, 1991, two men forced their way into the home of Eva Miles. While one

man tied Ms. Miles’ hands and feet and beat her repeatedly, the other began to go

through the house taking items. Ms. Miles testified at trial that although the men were

wearing masks, she had no doubt that the one searching the house was her son, the

petitioner. A jury found the petitioner guilty of aggravated robbery but acquitted his



        1
          See State v. Thomas A. Miles, No. 0 3C0 1-92 07-C R-0 024 3, Je ffers on C oun ty, (Te nn. C rim .
App. filed May 18, 1993, at Knoxville).

                                                       2
codefendant Donald Cox. The petitioner was represented by Heiskell Winstead and

Terry Stewart, an attorney who shared office space with Mr. Winstead.



                  In this post-conviction proceeding, the petitioner first contends that his

constitutional rights were violated because he was not tried by a fair and impartial jury.

The petitioner claims that because a juror made some sort of gesture toward Kippy Miles,

the petitioner’s brother and a witness for the State, the petitioner was not tried by a fair

and impartial jury.          The trial transcript reveals that immediately prior to opening

statements, Mr. Winstead told the court that he had just been informed that one of the

jurors had made a “note gesture” toward Kippy Miles2 when the juror entered the room.

The trial judge responded that Mr. Winstead could explore the subject as it unfolded.

However, the juror and her alleged gesture were never mentioned again.



                  In the petitioner’s brief, he argues that this gesture “certainly gives rise to

a suspicion of prejudice or bias.” He further suggests that the juror may have been

untruthful with the court when she stated that she did not know any of the parties involved

in the case.



                  At the post-conviction hearing, Mr. Winstead testified that the subject of the

gesture was not explored beyond his calling it to the court’s attention. He testified that

he did not ask to reopen the examination of the juror or to challenge her. He further

testified that he did not see the alleged gesture and that he had no other information

regarding it.



                  The petitioner’s post-conviction attorney informed the court that she had


         2
          "Note gesture” was the term used at trial by Mr. Winstead to describe the alleged gesture made
by the juror . At the post -con viction hear ing, n o one could offe r an e xpla natio n as t o the me aning of this
term.

                                                         3
searched diligently for the juror but had been unable to locate her. She also told the

court that she had spoken with Kippy Miles about the incident and he had no memory of

such a gesture. In fact, the attorney stated, “There’s no evidence as to whether the juror

was successful or not in getting [Kippy Miles’] attention, or talking to him, or whatever,

and he just simply doesn’t remember one way or another either.”



              “In post-conviction relief proceedings the petitioner has the burden of

proving the allegations in his [or her] petition by a preponderance of the evidence.”

McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual

findings of the trial court in hearings “are conclusive on appeal unless the evidence

preponderates against the judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn.

Crim. App. 1983). In this case, the post-conviction court judge found that the petitioner

failed to prove that he was denied the right to a fair and impartial jury. We find no reason

to disturb the court’s conclusion. The petitioner failed to carry his burden in that he failed

to show any impropriety on the part of the jury. This issue is without merit.



              The defendant next complains that his defense counsel at trial were

ineffective. Specifically, he claims that defense counsel were ineffective in failing to

follow through with the complaint against one of the jurors, failing to raise any mitigating

factors at the sentencing hearing, failing to properly appeal the sentencing issue to this

Court, and failing to timely file an application for permission to appeal to the Supreme

Court.



              In reviewing the petitioner’s Sixth Amendment claim of ineffective

assistance of counsel, this Court must determine whether the advice given or services

rendered by the attorney are within the range of competence demanded of attorneys in

criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a


                                              4
claim of ineffective counsel, a petitioner “must show that counsel’s representation fell

below an objective standard of reasonableness” and that this performance prejudiced the

defense. There must be a reasonable probability that but for counsel’s error the result

of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).



              First the petitioner claims that Mr. Winstead was ineffective for his failure

to further pursue the alleged gesture made by a juror toward Kippy Miles. As discussed

above, this issue is without merit. The petitioner fails to prove that Mr. Winstead’s

representation, as it related to this matter, was below the objective standard of

reasonableness and that he was prejudiced by such representation. The petitioner

presented no evidence at the post-conviction hearing to support this claim of ineffective

assistance.



              The petitioner next claims that his defense counsel were ineffective for

failing to present any mitigating factors at the sentencing hearing. The transcript of the

sentencing hearing reflects that the petitioner was mainly represented by Mr. Stewart.

Mr. Stewart told the trial judge that he had no evidence to offer at the sentencing hearing,

but that the petitioner did want to make a statement. At that time, the State requested

that the victim, the petitioner’s mother, be allowed to make a statement as well. Mr.

Stewart made no objection and Ms. Miles took the stand. She told the court that her son

was a pathological liar and had been that way for some time. She said he lived in a

dream world and could not tell truth from fantasy. She then told the court that during the

time she was robbed, her son never struck her. She said the codefendant had been the

one who beat her. She also asked the judge to get some help for her son. Ms. Miles was

not questioned by either the State or Mr. Stewart; she simply stated the above to the

court. The petitioner then took the stand and reiterated to the court that he was innocent


                                             5
of the crime for which he had been convicted. The defendant was then sentenced as a

Range II multiple offender to twenty years, the maximum sentence.



               In this post-conviction proceeding, the petitioner claims that Mr. Stewart was

ineffective for not presenting any mitigating evidence to the trial court. He claims that at

least five mitigating factors could have applied and should have been presented to the

trial court for consideration. The post-conviction court found that there were no mitigating

factors to present because the petitioner had maintained his innocence, thus preventing

the use of mitigating factors.



               We cannot agree with such reasoning. The petitioner, although maintaining

his innocence, could have presented mitigating evidence through testimony of persons

other than himself. The presentation of mitigating factors does not equate with an

admission of guilt. After a review of the testimony at trial and of the testimony from the

post-conviction hearing, we conclude that at least one of the petitioner’s suggested

mitigating factors may apply. Thus, that Mr. Stewart failed to present evidence of any

mitigating factors was prejudicial to the petitioner. We note that although there is no

requirement that defense counsel present mitigating evidence, it is clear that Mr. Stewart

should have presented evidence for the court’s consideration. The sentencing judge

obviously did not consider any mitigating factors as he sentenced the petitioner to the

maximum sentence. Thus, we conclude that the petitioner was prejudiced by Mr.

Stewart’s failure to offer mitigating evidence, and remand this cause to the trial court for

a second sentencing hearing.



               The petitioner also claims that Mr. Stewart was ineffective in his

representation of the petitioner on appeal. Apparently, Mr. Stewart failed to properly brief

the issue of sentencing by failing to cite any authority for his assertion that the petitioner’s


                                               6
sentence was inappropriate. As a result of his failure to cite any authority, a panel of this

Court refused to evaluate the issue and deemed it waived. Since we have remanded this

cause for a second sentencing hearing, the issue of Mr. Stewart’s effectiveness on

appeal is moot. The petitioner has already been awarded a new sentencing hearing

which will cure any prejudice he may have suffered due to the inadequate appellate brief.




              The petitioner’s final contention is that his trial counsel were ineffective in

that they failed to file a timely application to appeal to the Supreme Court. At the

petitioner’s post-conviction hearing, Mr. Stewart testified that while Mr. Winstead had

performed much of the trial work, he [Mr. Stewart] had been responsible for the appellate

work. He further testified that shortly after this Court affirmed the petitioner’s conviction

and sentence, he [Mr. Stewart] had contracted a debilitating disease that required him

to be hospitalized for approximately two months. Mr. Stewart admitted that because of

his illness, he failed to file a timely application to the Supreme Court. Upon his recovery,

Mr. Stewart did file an application with the Court, but the Court refused to consider the

application due to its untimeliness.



              While we do not discount Mr. Stewart’s grave illness, we cannot ignore the

fact that this petitioner was entitled to petition the Supreme Court to review his conviction.

Tennessee case law provides that “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). See also Moultrie v.

State, 542 S.W.2d 835 (Tenn. Crim. App. 1976). Furthermore, Tennessee case law

indicates that it is not necessary to consider whether any of the issues to be raised on

appeal have any merit. See Pinkston, 668 S.W.2d 676. See also State v. Brown, 653

S.W.2d 765 (Tenn. Crim. App. 1983); State v. Hopson, 589 S.W.2d 952 (Tenn. Crim.


                                              7
App. 1979). “In fact, in the context of the failure to preserve the right to seek supreme

court review of this court’s opinion, we believe that it would be particularly inappropriate

for either a trial court or this court to assess the merits of or predict the outcome of a Rule

11, T.R.A.P., application for permission to appeal.” Jonathan A. Hyler v. State, No.

01C01-9511-CR-00362, Davidson County (Tenn. Crim. App. filed Sept. 19, 1996, at

Nashville), cert. denied, March 3, 1997. Thus, we conclude, as conceded by the State,

that the petitioner was denied his right to seek second-tier review of his conviction, and

as a result, he is now entitled to a delayed appeal.



              For the foregoing reasons, we affirm the court’s denial of the petitioner’s

post-conviction relief in terms of vacating his conviction. However, the petitioner should

be allowed to seek review by the Supreme Court on a delayed basis. Therefore, we

vacate our judgment in case number 03C01-9207-CR-00243, dated May 18, 1993, and

reinstate it as of the date of release of this opinion. We also remand this cause to the

trial court for a new sentencing hearing in order that mitigating evidence may be

considered.




                                                    JOHN H. PEAY, Judge



CONCUR:




JOSEPH M. TIPTON, Judge



_______________________________
CURWOOD W ITT, Judge




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