                                                                                           04/15/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 August 6, 2019 Session

             CHRISTOPHER BROWN v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                   No. 13-05989       J. Robert Carter, Jr., Judge
                      ___________________________________

                           No. W2018-01705-CCA-R3-PC
                       ___________________________________


JOHN EVERETT WILLIAMS, P.J., dissenting.

        I respectfully dissent from the majority’s opinion, concluding that post-conviction
counsel had an actual conflict of interest and granting a new hearing, because I conclude
that the issue is waived.

       As our supreme court has recognized, if a post-conviction court “is aware of
should be aware of a conflict of interest, there must be an inquiry as to its nature and
appropriate measures taken.” Frazier v. State, 303 S.W.3d 674, 680 (Tenn. 2010) (citing
Cryler v. Sullivan, 446 U.S. 335, 346-47 (1980)). “In determining whether to disqualify
an attorney in a criminal case, the trial court must first determine whether the party
questioning the propriety of the representation met its burden of showing that there is an
actual conflict of interest.” State v. White, 114 S.W.3d 469, 476 (Tenn. 2003) (citing
Clinard v. Blackwood, 46 S.W.3d 177, 187 (Tenn. 2001); State v. Culbreath, 30 S.W.3d
309, 312-13 (Tenn. 2000); State v. Jones, 726 S.W.2d 515, 520-21 (Tenn. 1987)).

       Post-conviction counsel never filed a motion to withdraw setting forth the
circumstances to support an alleged conflict of interest, and he never sought an
evidentiary hearing in order to establish that such a conflict of interest existed. Post-
conviction counsel also stated at the beginning of the evidentiary hearing that “[t]here is
no issue as far as conflict.” Rather, post-conviction merely had an informal discussion
with the post-conviction court regarding the issue during which the court determined that
no actual conflict of interest existed. Counsel made no other effort to meet his burden in
establishing an actual conflict of interest. Because post-conviction counsel failed to file a
formal motion to withdraw, failed to request that he be allowed to withdraw on the
record, and failed to request a hearing on the record in order to meet the burden of
establishing a conflict of interest, I conclude that this issue is waived. See Tenn. R. App.
P. 36(a) (“Nothing in this rule shall be constructed as requiring relief be granted to a
party responsible for an error or who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error.”). While the majority relies
upon the record of the hearing itself and post-conviction counsel’s questioning of the trial
counsel to conclude that an actual conflict of interest existed, I do not reach the same
conclusion upon my review of the record.

       I would affirm the post-conviction court’s judgment in this case. Accordingly, I
respectfully dissent.




                                   JOHN EVERETT WILLIAMS, PRESIDING JUDGE




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