            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                      Assigned on Briefs March 14, 2000

                 JAMES R. HANKINS v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                         No. P-19859    Hon. W. Fred Axley, Judge



                    No. W1999-00529-CCA-R3-PC - Filed March 22, 2001


James R. Hankins appeals the Shelby County Criminal Court’s denial of his petition for post-
conviction relief. All of his allegations are without merit, save one. Hankins has established by clear
and convincing evidence that his counsel on direct appeal failed to follow the required procedures
for withdrawal of counsel under Supreme Court Rule 14. Accordingly, we affirm in part, reverse
in part, and vacate and reinstate our judgment in Hankins’ direct appeal.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed in Part, Reversed in Part

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which GARY R.WADE, P. J.,
and THOMAS T. WOODALL , J., joined.

Jeffery S. Glatstein, Memphis, Tennessee, for the appellant, James R. Hankins.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney
General; William L. Gibbons, District Attorney General; William D. Bond, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                 James R. Hankins is presently incarcerated in the Department of Correction serving
a sentence of life plus 30 years for convictions of felony murder and especially aggravated robbery
consecutively to a sentence in a previous case for which he was on parole at the time of the instant
offenses. Claiming that he was hampered by the ineffective assistance of counsel at trial and on
appeal, Hankins filed a petition for post-conviction relief in the Shelby County Criminal Court.
Following two hearings at which Hankins and his two former attorneys testified, the trial court found
that Hankins failed to carry his burden of proof and dismissed the petition. Upon review of the
record, the briefs of the parties, and the applicable law, we hold that the evidence preponderates
against the trial court’s determination that Hankins is not entitled to apply for second-tier review of
his conviction despite counsel’s admitted failure to follow the dictates of Tennessee Rule of the
Supreme Court 14. In all other respects, we agree with the trial court that Hankins failed to carry his
burden of proving his claims. Accordingly, we affirm in part and reverse in part. Moreover, we
vacate our judgment in State v. James R. Hankins, No. 02C01-9603-CR-00098 (Tenn. Crim. App.,
Jackson, May 23, 1997), and reinstate it on the date of the filing of this opinion so that Hankins may
seek permission to appeal.

                 Hankins’ complaints about his trial attorneys’ performance are all raised as claims
of ineffective assistance of counsel. The Sixth Amendment of the United States Constitution and
Article I, section 9 of the Tennessee Constitution both require that a defendant in a criminal case
receive effective assistance of counsel. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). When a
defendant claims ineffective assistance of counsel, the standard applied by the courts of Tennessee
is "whether the advice given or the service rendered by the attorney is within the range of
competence demanded by attorneys in criminal cases." Summerlin v. State, 607 S.W.2d 495, 496
(Tenn. Crim. App. 1980).

                 In Strickland v. Washington, the United States Supreme Court defined the Sixth
Amendment right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984). First, the appellant must show that counsel's performance fell below an objective
standard of reasonableness under prevailing professional norms and must demonstrate that counsel
made errors so serious that he was not functioning as "counsel" guaranteed by the Constitution. Id.
at 687, 104 S. Ct. at 2064. Second, the petitioner must show that counsel's performance prejudiced
him and that errors were so serious as to deprive the defendant of a fair trial, calling into question
the reliability of the outcome. Id.104 S. Ct. at 2064.

                The petitioner's burden of proof in all post-conviction cases filed after May 10, 1995
is by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). The court must
indulge a strong presumption that counsel's conduct falls within the range of reasonable professional
assistance and must evaluate counsel's performance from counsel's perspective at the time of the
alleged error and in light of the totality of the evidence. Strickland, 466 U.S. at 690, 695, 104 S. Ct.
at 2066, 2069. The petitioner must demonstrate that there is a reasonable probability that but for
counsel's deficient performance, the result of the proceeding would have been different. Id. at 695,
104 S. Ct. at 2069. A trial court's findings of fact following a post-conviction hearing have the
weight of a jury verdict. Bratton v. State, 477 S.W.2d 754, 756 (Tenn. Crim. App. 1971). On
appeal, those findings are conclusive unless the evidence preponderates against the judgment. Butler
v. State, 789 S.W.2d 898, 900 (Tenn. 1990).

                Hankins’ allegations are that counsel failed to properly investigate and prepare for
trial by locating and subpoenaing for trial several witnesses, did not raise any issue regarding
identification proof on appeal, did not challenge the sufficiency of the indictment on appeal, and
failed to advise him of his right to seek second-tier appellate review of his conviction.

               With respect to the claim of deficient investigation and preparation in failing to locate
and subpoena several witnesses, the testimony of the petitioner contrasted sharply with that of his
attorneys about the actions taken by counsel with respect to these witnesses and the benefit which


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would have been gained from their testimony at trial. On these points, the trial court accredited the
testimony of the attorneys over that of Hankins. Given the deference we must afford factual findings
of the lower court, we conclude that the evidence does not preponderate against its determination.
Thus, Hankins has failed to carry his burden of proof on this issue.

                 The attorney who represented Hankins on appeal testified that after reviewing the
transcript of trial, he did not raise an identification issue on appeal because in his professional
judgment such issue was without merit. Thus, counsel made a tactical decision regarding which
appellate issues to pursue. It is not our function as an appellate court to second-guess tactical
decisions made by counsel where those decisions were informed and based upon adequate
preparation. See Hellard v. State, 629 S.W.2d 4, 6 (Tenn. 1982). Hankins failed to demonstrate in
the trial court that counsel’s decision was uninformed and based upon inadequate preparation, and
on appeal, he has failed to demonstrate that the evidence preponderates against such a conclusion.

                In his petition, Hankins alleged that the felony murder indictment was insufficient
because it failed to allege the mens rea of recklessness. At the hearing, however, he testified that
his challenge to the indictment was that it failed to allege the type of weapon used to kill the victim.
The indictment does not appear in the appellate record that is before this court. Thus, there is no
evidence which preponderates against the trial court’s determination that the indictment was
sufficient. Moreover, even if we accept the recitation of the indictment that appears in the trial
court’s order denying relief, we see no insufficiency. The indictment as recited by the trial court
contains an allegation that Hankins’ commission of felony murder was committed recklessly.
Furthermore, Hankins has cited no authority to us which stands for the proposition that an indictment
for felony murder must allege the type of weapon employed, and we are aware of no such precedent.

                  Finally, Hankins claimed that one of his trial attorneys said he would pursue appellate
relief, but after the conviction, Hankins never heard from counsel again even though Hankins made
inquiries about the status of his case. Hankins claimed he did not learn of the disposition of his
direct appeal in this court until another inmate informed him some five months after our opinion was
released. Thus, the time for seeking second-tier appellate review had already passed, and Hankins’
counsel had never informed him of counsel’s intent not to pursue review by the state supreme court.
Appellate counsel testified that his practice was to write to clients whose first-tier appeals were
unsuccessful to advise them of the outcome and counsel’s intent to withdraw, and to enclose a copy
of the opinion. He did not dispute, however, that the postal service or prison authorities may not
have delivered this communication to Hankins. Moreover, counsel conceded that he had not
followed the dictates of Tennessee Rule of the Supreme Court 14, which sets forth the procedure for
counsel wishing to withdraw following representation of a litigant in a first-tier appeal of a criminal
case. The trial court found and the state argues on appeal that Hankins failed to demonstrate
prejudice from counsel’s admitted shortcoming, and therefore, he is not entitled to relief in the form
of a delayed appeal.

                The law in Tennessee is quite clear. A petitioner whose opportunity to seek second-
tier appellate review is unilaterally terminated is entitled to relief in the form of a delayed appeal.


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Pinkston v. State, 668 S.W.2d 676, 677 (Tenn. Crim. App. 1984); see, e.g., Billy Joe Greenwood v.
David Newberry, No. 01C01-9803-CR-00134, slip op. at 8 (Tenn. Crim. App., Nashville, March 3,
1999) (court did not analyze prejudice to post-conviction petitioner in allegation of ineffective
assistance as a result of failure to seek second-tier review although counsel claimed there were no
viable issues for further appeal), perm. app. denied (Tenn. 1999); Roland H. Matlock v. State, No.
01C01-9703-CR-00091, slip op. at 8 (Tenn. Crim. App., Nashville, May 27, 1998) (while counsel
is not required to file a frivolous Rule 11 application for review with the supreme court, he is
required to follow the mandate of Rule 14 to preserve his client’s ability to proceed pro se), perm.
app. denied (Tenn. 1998).

                Given appellate counsel’s admission that he failed to follow the requirements of Rule
14 in the direct appeal, Hankins is entitled to have the judgment of this court in his direct appeal
vacated and reinstated so that he may seek second-tier review with the supreme court. Accordingly,
we vacate our judgment in State v. James R. Hankins, No. 02C01-9603-CR-00098 (Tenn. Crim.
App., Jackson, May 23, 1997), and reinstate it on the date of the filing of this opinion so that
Hankins may seek permission to appeal. Hankins’ counsel in the case sub judice is appointed to
represent Hankins in State v. James R. Hankins, CCA No. 02C01-9603-CR-00098.

              The judgment of the trial court is affirmed as to all issues other than that of the
delayed appeal. As to the delayed appeal, the trial court’s judgment is reversed.


                                                      _____________________________
                                                      James Curwood Witt, Jr., Judge




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