         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                       JUNE 1998 SESSION
                                                         FILED
                                                           June 22, 1998

                                                         Cecil Crowson, Jr.
SARAH RICHARDSON,              )                         Appellate C ourt Clerk
                               )    NO. 02C01-9707-CC-00271
      Appellant,               )
                               )    LAUDERDALE COUNTY
VS.                            )
                               )    HON. JON KERRY
STATE OF TENNESSEE,            )    BLACKWOOD, JUDGE
                               )
      Appellee.                )    (Post-Conviction)



FOR THE APPELLANT:                  FOR THE APPELLEE:

JAMES H. BRADLEY                    JOHN KNOX WALKUP
112 East Liberty                    Attorney General and Reporter
P.O. Box 952
Covington, TN 38019                 DOUGLAS D. HIMES
                                    Assistant Attorney General
                                    Cordell Hull Building, 2nd Floor
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    ELIZABETH T. RICE
                                    District Attorney General
                                    302 Market Street
                                    Somerville, TN 38068




OPINION FILED:



AFFIRMED IN PART;
DELAYED APPEAL GRANTED



JOE G. RILEY,
JUDGE
                                     OPINION



       The petitioner, Sarah Richardson, appeals the denial of post-conviction

relief by the Circuit Court of Lauderdale County. She was previously convicted

of first degree murder and conspiracy to commit first degree murder. She was

sentenced to concurrent terms of life and twenty-five (25) years, respectively.

The petitioner now alleges ineffective assistance of trial and appellate counsel.

She contends (1) that trial counsel was ineffective for failing to secure a mental

evaluation relative to diminished capacity evidence; and (2) that counsel failed to

inform her of her right to appeal to the Tennessee Supreme Court following

affirmance of her convictions by this Court. We AFFIRM the judgment of the trial

court regarding counsel’s decision not to pursue a mental defense. However, we

VACATE our original judgment in the matter and reinstate it as of the date of the

filing of this opinion to allow the petitioner to pursue a delayed appeal to the

Tennessee Supreme Court.



                                       FACTS



       The petitioner was convicted of first degree murder of her husband and

conspiracy to commit first degree murder. Her convictions were affirmed by this

Court. State v. Sarah Richardson, C.C.A. No. 02C01-9204-CC-00103,

Lauderdale County (Tenn. Crim. App. filed April 7, 1993, at Jackson).



                                         A.



       The petitioner testified at the post-conviction hearing that prior to the

death of her husband she was on “nerve pills and a couple of other kinds” of

medication. Dr. James Witherington prescribed the drugs, as he had been the

petitioner’s physician for some time. The petitioner testified that she advised her

attorneys of this fact, yet they never attempted to interview Dr. Witherington.


                                          2
The petitioner alleges this failure to consult her doctor precluded her ability to

present evidence of diminished capacity and/or battered spouse syndrome.



       Although Dr. Witherington did not testify, the parties entered into a

stipulation concerning Dr. Witherington’s records. The records reflect the

petitioner reported depression and nervous tension in 1974 and 1975 and

tension in 1984. The records also reflect that the petitioner reported she had

been suffering from depression after the murder of her husband in 1990.



       The petitioner’s attorney testified at the post-conviction hearing that the

petitioner steadfastly maintained she had no involvement in the death of her

husband. Counsel further testified that diminished capacity evidence was

discussed with the petitioner; however, she was not interested in pursuing it.

The petitioner was unwilling to admit any involvement in the death of her

husband.



                                          B.



       Following her conviction, the petitioner appealed to this Court. Although

trial counsel had been retained for trial, the trial court declared the petitioner

indigent for appellate purposes. The same counsel was appointed to represent

the petitioner on appeal. Following this Court’s affirmance of the conviction, no

permission to appeal was filed. The petitioner’s attorney testified he sent the

petitioner a letter advising her to contact counsel by a certain date if she desired

counsel to file for permission to appeal to the Tennessee Supreme Court. The

letter, entered into evidence at the post-conviction hearing, also advised the

petitioner that no further action would be taken unless the petitioner responded.

Counsel received no response and did nothing further. The petitioner testified

she never received the letter.




                                           3
         The trial court entered a two-page “Findings of Facts and Conclusions of

Law.” This document merely sets forth a summary of the contentions of the

parties and testimony of the witnesses. It does not contain any findings of fact.

However, after giving a summary of the testimony, the trial court concluded that

“the petitioner was not denied effective assistance of counsel, and that this

petition should and is, hereby, dismissed.”



                            INEFFECTIVE ASSISTANCE



         This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The

petitioner has the burden to prove that (1) the attorney’s performance was

deficient, and (2) the deficient performance resulted in prejudice to the defendant

so as to deprive her of a fair trial. Strickland v. Washington, 466 U.S. at 687,

104 S.Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v.

State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899

(Tenn. 1990).



         The test in Tennessee in determining whether counsel provided effective

assistance is whether his performance was within the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936.

The petitioner must overcome the presumption that counsel’s conduct falls within

the wide range of acceptable professional assistance. Strickland v. Washington,

466 U.S. at 689, 104 S.Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn.

Crim. App. 1997); State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App.

1996).



         In reviewing counsel's conduct, a "fair assessment . . . requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the



                                           4
circumstances of counsel's challenged conduct, and to evaluate the conduct

from counsel's perspective at the time." Strickland v. Washington, 466 U.S. at

689, 104 S.Ct. at 2065. The fact that a particular strategy or tactic failed or hurt

the defense, does not, standing alone, establish unreasonable representation.

However, deference to matters of strategy and tactical choices applies only if the

choices are informed ones based upon adequate preparation. Goad v. State,

938 S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Alley v.

State, 958 S.W.2d at 149; Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.

App. 1992).



                    FAILURE TO UTILIZE MENTAL DEFENSE



       The petitioner contends her attorneys provided ineffective assistance by

failing to procure a mental evaluation. The state contends that the petitioner had

many meetings with counsel before her trial, and that neither attorney was aware

of any mental defect necessitating an evaluation. Ordinarily, the absence of

factual findings by the trial court would preclude proper appellate review;

however, it is apparent in this case that the trial court rejected the petitioner’s

contentions. A defense based upon mental disease or defect obviously would

have been inconsistent with the petitioner’s denial of involvement. It would be

tactically difficult to deny any involvement and, at the same time, advance a

mental defense. Furthermore, the records of Dr. Witherington do not establish

anything that would significantly help the petitioner. The petitioner has not

shown that the result of the trial would have been any different with the use of

this information.



       This issue is without merit.




                                           5
                                RIGHT TO APPEAL



       Counsel testified he sent the petitioner a letter after receiving the decision

of this Court affirming the convictions. The letter explained that counsel would

file an application to appeal to the Tennessee Supreme Court, if the petitioner so

requested. Counsel testified that the petitioner never responded to the letter.

The petitioner testified she never received the letter. The petitioner further

testified that counsel refused to file the application for permission to appeal

because he said “it wouldn’t do any good.” We are unable to determine whether

the trial court found that the defendant received the letter and decided not to

appeal or whether the trial court concluded that mailing the letter was sufficient.

Regardless, the trial court denied relief.



       Although counsel had been retained at the trial level, the same counsel

was appointed for the appeal. Appointed counsel on appeal must comply with

Sup. Ct. Rule 14 after an adverse decision of this Court. Appellate counsel did

not do so in this case. There was no motion to withdraw accompanied by a

proper notification to the petitioner. Specifically, it appears the petitioner was

never notified of her right to seek permission to appeal pro se as required by

Sup. Ct. Rule 14.



       Because petitioner’s counsel failed to properly notify her under Rule 14 of

her right to seek second-tier appellate review, we must grant her the right to seek

a delayed appeal to the Tennessee Supreme Court. Accordingly, we vacate our

judgment of April 7, 1993, and reinstate it as of the date of the release of this

opinion. Present counsel should pursue the delayed appeal. In all other

aspects, the judgment of the trial court is affirmed.




                                             6
                                      __________________________
                                      JOE G. RILEY, JUDGE



CONCUR:




__________________________
DAVID H. WELLES, JUDGE




_______________________________
DAVID R. FARMER, SPECIAL JUDGE




                                  7
