        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 16, 2014

          CHARLES STEVEN SHIVERS v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 2008-C-2587    J. Randall Wyatt, Jr., Judge




                No. M2014-00455-CCA-R3-PC          - Filed April 7, 2015



The petitioner was convicted by a jury of attempted first degree murder and especially
aggravated robbery, both Class A felonies, and sentenced to an aggregate sentence of forty-
three years. The petitioner filed a timely post-conviction petition, which was amended by
appointed counsel. After conducting a hearing, the post-conviction court denied relief. Post-
conviction counsel failed to file a timely notice of appeal. Because we do not conclude that
the interest of justice requires us to hear the appeal, we dismiss it as untimely.


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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL, P.J., and R OBERT W. W EDEMEYER, J., joined.

Jeffrey T. Daigle, Nashville, Tennessee, for the appellant, Charles Steven Shivers.

Herbert H. Slatery III, Attorney General and Reporter; Clarence Lutz, Senior Counsel; Victor
S. Johnson, III, District Attorney General; and Ben Ford, Assistant District Attorney General,
for the appellee, State of Tennessee.



                                         OPINION
                      FACTUAL AND PROCEDURAL HISTORY

        The petitioner’s convictions resulted from the robbery and shooting of the victim,
Artenner Mann, in the course of a drug transaction. State v. Charles Steven Shivers a.k.a.
Scott Kevin McNeil, No. M2009-02079-CCA-R3-CD, 2011 WL 6382552 (Tenn. Crim. App.
Dec. 19, 2011), perm. app. denied (Tenn. Apr. 11, 2012). At the petitioner’s trial, the victim
testified that a man named Lamont Butler had arranged for the petitioner to buy around
$1,500 worth of crack cocaine from the victim. The petitioner arrived in a white SUV, and
during the transaction, he and another man shot the victim thirteen times. Id. at *1. The
victim also testified that the men searched his clothing and that he was missing over $2,000
when he was released from the hospital. Id. at *1-2. Mr. Butler confirmed that he arranged
the drug transaction and testified that the petitioner confessed to shooting the victim. Id. at
*2. An eyewitness saw a white SUV leaving the scene, and telephone records established
contact between the victim and petitioner on the night of the incident. Id. at *3. The victim,
communicating through the use of hand signals while hospitalized, initially implicated Mr.
Butler in the shooting. Id. at *4.

       The jury began deliberations late in the day on April 15, 2009, and was not able to
reach a decision the first or second day:

                     On April 16, 2009, the jury resumed deliberations at 8:47
              a.m. At 2:44 p.m., the trial court polled the jury and determined
              that no verdict had been reached. The jury consensus was to
              continue deliberations longer into the day and only to continue
              into tomorrow if necessary. However, one juror, Juror Maloney
              complained: “Judge, I don’t think – we’ve hashed this and
              hashed this and hashed it. And I don’t think staying another day
              is going to change it. I think – we’ve discussed it from every
              angle.” The judge listened and explained, “I would like to let
              you continue to deliberate a little further.” At 3:35 p.m., the jury
              returned with a new foreperson. They retired for the evening
              and resumed deliberations the following day. When court
              opened the following day, the trial judge acknowledged the
              occurrence of an ex parte contact with a juror. During a jury-out
              meeting held on the record, the trial court described the
              circumstances and content of the ex parte contact as follows:

                     All right. Have a seat. Bring the defendant in. I’ve
                     talked to Mr. Mahoney [sic]. And he’s a very nice
                     gentleman. And he was just a little bit, you know,

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                      stressed, in a way. He’s older than I thought he was, as
                      a matter of fact. You know, I thought he was about my
                      age and that’s old enough. But, anyway, he works at
                      Opryland in security. We talked. We didn’t say one
                      word about the trial. I just wanted to make sure his
                      health was okay. And Alex was in there with me, sitting
                      there as my trusted monitor or whatever it is. We said
                      not one word about this trial. All we talked about is him
                      and his health and his well-being. And I’m satisfied that
                      after we talked, he’s going to be fine. And he can handle
                      this and he can come in here and then we’re going to go
                      ahead with deliberations. So – I mean, I did it in the best
                      way I could do. And that’s all I know to say. So bring
                      the Jury in. He’s a nice gentleman, he is.

Id. at *5.

       Defense counsel did not object to this ex parte contact or move for a mistrial, and the
jury convicted the petitioner after further deliberation. Id. at *6. Defense counsel raised the
issue of the ex parte contact as error on appeal. Id. at *10-11. This court concluded that the
petitioner waived the issue by failing to object or to establish a proper record from which the
nature and extent of the ex parte contact could be determined. Id. at *11. However, we
further noted:

               Even had this issue not been waived, we can discern from the
               record no manner in which either the defendant or the justice
               system suffered any sort of prejudicial effect from the trial
               judge’s well-intentioned, albeit legally erroneous, inquiry into
               the ongoing health status of this elderly juror.

Id.

        At the post-conviction hearing, the petitioner testified regarding trial counsel’s alleged
deficiencies, including trial counsel’s failure to call certain witnesses, trial counsel’s
allegedly deficient advice regarding plea agreements and the potential outcome of trial, and
trial counsel’s failure to move for a mistrial after the trial court brought the ex parte contact
to the attention of the parties. Trial counsel testified that the decision not to call the
witnesses was strategic, and he testified that he informed the petitioner about plea offers and
the possible outcome of trial but the petitioner maintained his innocence and did not want to
plead guilty. Trial counsel testified that he did not remember exactly what had occurred

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regarding the ex parte contact, but he did not dispute that he had neglected to make a motion
for a mistrial or a request for a hearing. The post-conviction court entered an order on
January 14, 2014, denying relief. The post-conviction court found that trial counsel had not
performed deficiently in advising the petitioner regarding the plea agreement and that the
decision not to call witnesses was a reasonable tactical decision which did not prejudice the
petitioner. The post-conviction court further concluded that the petitioner was not entitled
to relief based on the failure to move for a mistrial because he had shown no prejudice. The
petitioner’s post-conviction attorney filed a notice of appeal on March 4, 2014. On appeal,
the petitioner’s sole issue is the claim that he is entitled to post-conviction relief because his
attorney was deficient in failing to move for a mistrial or to request a hearing regarding the
ex parte contact.

                                          ANALYSIS

        The petitioner claims that he received the ineffective assistance of counsel because
trial counsel “failed to develop the record which might have revealed harmful error.”
(Emphasis added.) The State counters that the notice of appeal was not timely filed and that
this court should therefore dismiss the appeal.

         Tennessee Rule of Appellate Procedure 4(a) requires a notice of appeal under
Tennessee Rule of Appellate Procedure 3 to be filed within thirty days of the entry of the
judgment which is being appealed. However, the notice is not jurisdictional, and the filing
“may be waived in the interest of justice.” Tenn. R. App. P. 4(a). An appellate court may
waive the notice of appeal on its own motion when it is in the interest of justice. Crittenden
v. State, 978 S.W.2d 929, 932 (Tenn. 1998). Such a waiver, however, “is not automatic.”
State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007). In determining whether
waiver of the notice requirement is in the interest of justice, this court may look to the nature
of the issues presented for review, the reasons for and the length of the delay in seeking
relief, and any other relevant factors. Id. When examining the nature of the issues presented
for review, this court has taken into consideration the merits of the appeal. See Smith v.
State, 873 S.W.2d 5, 6 (Tenn. Crim. App. 1993) (“[T]he underlying issues of this case
require resolution in order to do substantial justice.”); State v. Dodson, 780 S.W.2d 778, 781
(Tenn. Crim. App. 1989) (“Since the appeal of the appellant has merit, it is in the interest of
justice that the notice of appeal requirement be waived.”); see also State v. Markettus L.
Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *3 (Tenn. Crim. App. Dec.
27, 2005).

      The petitioner’s counsel filed a notice of appeal on March 4, 2014, more than thirty
days after the post-conviction court entered judgment denying the petitioner relief.
Therefore, the notice of appeal was untimely. The record here contains no request for a

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waiver of the notice requirement. Neither is there any explanation of the reason for the
untimely notice, despite the fact that the State raised the issue in its brief.

        Moreover, it is clear that the petitioner cannot demonstrate any sort of prejudice
stemming from trial counsel’s failure to object to the ex parte contact. An ex parte contact
between a juror and the trial judge is subject to harmless error analysis. State v. Tune, 872
S.W.2d 922, 928 (Tenn. Crim. App. 1993). This court specifically noted on direct appeal that
there was no “prejudicial effect from the trial judge’s well-intentioned, albeit legally
erroneous, inquiry into the ongoing health status of this elderly juror.” Shivers, 2011 WL
6382552, at *11. To show that relief is warranted on a claim of ineffective assistance of
counsel, the petitioner must establish both that counsel’s performance was deficient and that
the deficiency prejudiced the defense. Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006).
To show prejudice, the petitioner must show a reasonable probability that, but for counsel’s
errors, the results of the proceeding would have been different. Id. Here, the petitioner
failed to adduce any evidence at the post-conviction hearing regarding the nature of the ex
parte contact. Accordingly, he cannot show a reasonable probability that trial counsel’s
alleged deficiency in failing to develop a record of the interaction between the judge and the
juror changed the results of the proceeding. Consequently, the post-conviction court
correctly determined that he failed to show prejudice. “If this court were to summarily grant
a waiver whenever confronted with untimely notices, the thirty-day requirement of Tennessee
Rule of Appellate Procedure 4(a) would be rendered a legal fiction.” Rockwell, 280 S.W.3d
at 214. Accordingly, we conclude that “the interest of justice” does not warrant waiver of
the notice requirement, and we dismiss the appeal as untimely.

                                      CONCLUSION

       Based on the foregoing, the appeal is dismissed.




                                                   _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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