        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 21, 2016

         BOBBY DEWAYNE PRESLEY v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Coffee County
                       No. 41280      L. Craig Johnson, Judge



                No. M2015-00520-CCA-R3-PC – Filed March 3, 2017



NORMA MCGEE OGLE, J., dissenting.


        I agree with the majority that this case has a ―mystifying‖ procedural history. I
write separately to express my concerns regarding the authority of the Petitioner’s
mother, acting through a standard form durable power of attorney, to dismiss the
Petitioner’s direct appeal of his 2011 conviction. Equally concerning is the waiver by the
Petitioner’s mother of appellate counsel’s conflict in representing the Petitioner during
his direct appeal and post-conviction proceedings. As the majority notes, the issue of the
Petitioner’s mother authority to act on behalf of the Petitioner was not raised.

       The Petitioner’s mother testified at the post-conviction hearing that she relied on
appellate counsel’s advice that without the trial transcript, the Petitioner’s best strategy
was to dismiss the direct appeal and file a post-conviction petition alleging that trial
counsel was ineffective. A one sentence handwritten letter was submitted with the
motion to dismiss the appeal. The letter appears to be signed by the Petitioner’s mother,
addressed to appellate counsel, and faxed from a truck stop. The letter states:

              [Appellate counsel,]

                     After talking to [appellate counsel] about [my] son[’s]
              case and them loosing [(sic)] his paper work, I feel it is in his
              best interest to dismiss the appeal and pursue the post
              conviction review.

       Appellate counsel then filed the post-conviction petition, and it was denied by the
post-conviction court. The post-conviction court held that trial counsel was not
ineffective. Notably, at the hearing, the State questioned appellate counsel, who had
called himself as a witness to rebut trial counsel’s testimony, about the steps trial counsel
took to obtain a transcript or statement of the evidence. Specifically, the following
colloquy occurred:

              [The State:] And during the period of time [between August
              31, 2012, and September 18, 2013,] you felt like the heat was
              on so much that you couldn’t send [trial counsel] a letter or e-
              mail?

              [Appellate counsel:] I should be able to get a hold of a fellow
              attorney by phone calls.

              [The State:] I see.

              [Appellate counsel:] All right, and that --.

              [The State:]—Is that a ―no,‖ [Appellate counsel]?

              [Appellate counsel:] That is a ―no,‖ but if I may explain.

              [The State:] Sure.

              [Appellate counsel:] We did have – I did get a response from
              him in the e-mail that we presented as evidence, which was
              the extent of it. Follow-up phone calls again, ring, ring, ring.
              If I am not going to get a response to a phone call, I don’t
              think I am going to get a response to a letter. At that point, I
              was focusing on trying to preserve this man’s ability to
              present an appeal to the Court of [Criminal] Appeals.

              [The State:] Do you have a list of correspondence that you
              sent the D.A.’s Office in an effort to prepare a statement of
              the evidence?

              [Appellate counsel:] No, sir, there was none.

              [The State:] What about the witness that made the arrest on
              this habitual offender? Do you have any record of your
              contact with that witness?

              [Appellate counsel:] No, sir.
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              [The State:] What about the Court? Did you ever contact the
              Court?

              [Appellate counsel:] There was just the request to – or the
              motion to the clerk to see if we could get some type of a
              record, and we didn’t get any response to phone calls.
              However, I did file a notice to the Court of Criminal Appeals
              which is in one of our exhibits and stipulated that we – that
              the clerk couldn’t follow up on the Court of Criminal Appeals
              remand order.

              [The State:] Okay, so did you ever contact [the trial court’s]
              office about preparing a statement of the evidence?

              [Appellate counsel:] No, sir.

              [The State:] What about the data recovery options? Did you
              ever contact any experts about trying to preserve or retrieve
              the data from the corrupted hard drive?

              [Appellate counsel:] No, and the main reason for that was,
              the client didn’t have the funds at the time.

      In its order denying relief, the post-conviction court was critical of appellate
counsel’s actions relating to the dismissal of the direct appeal, noting that appellate
counsel

              took over [the Petitioner’s] appeal and admittedly voluntarily
              dismissed it as a tactical move. He did so without applying to
              the court for additional time to put together a statement of
              evidence under Rule 24. Rule 24(c) of the Tennessee Rules
              of Appellate Procedure clearly outlines how this
              reconstruction should occur. However, it appears [the
              Petitioner] or [appellate counsel] failed to exhaust the
              procedures afforded by said rule.

        Unfortunately, more problems occurred during the appellate proceeding on the
post-conviction case. Following the denial of post-conviction relief, appellate counsel
filed a notice of appeal and an appellate brief. The State in its brief noted that the post-
conviction court did not address whether the Petitioner had waived an apparent conflict
of interest to allow appellate counsel to represent the Petitioner during the direct appeal
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and post-conviction proceedings. The State, citing Frazier v. State, 303 S.W.3d 674
(Tenn. 2010), suggested that ―a remand may be required to determine whether the
petitioner knowingly and voluntarily waived the apparent conflict of interest.‖ Appellate
counsel then filed a motion to remand the case to the post-conviction court to address the
issue, and this court granted the motion.

       Upon remand, the post-conviction court set a hearing date and ordered the
Petitioner transported for the hearing. However, on the day of hearing, the Petitioner was
not present. The post-conviction court, understandably concerned about time limits set
by this court, agreed to appellate counsel’s suggestion to proceed without the Petitioner
based upon appellate counsel’s statement that the Petitioner had directed him to deal with
the Petitioner’s mother, who had a power of attorney.

       Appellate counsel and the post-conviction court questioned the Petitioner’s mother
about her understanding of the conflict, and the trial court held that the Petitioner’s
mother ―has waived any conflict that [the Petitioner] may have had against [appellate
counsel].‖ The post-conviction court then asked about the required written waiver.
Appellate counsel responded that the Petitioner’s mother would sign a written waiver and
submit it to the court. Later, a handwritten waiver signed by the Petitioner’s mother was
filed which stated in part:

             I understand that by allowing [appellate counsel] to remain
             counsel of record for [the Petitioner] that [the Petitioner] and
             I waive any claims that [appellate counsel] was rendered
             ineffective or was ineffective in handling the direct appeal in
             case number M2011-02716-CCA-R3-CD. I further waive on
             [the Petitioner’s] behalf any claims that [appellate counsel]
             may have an actual conflict in the appeal of the post-
             conviction and agree that he should remain as [the
             Petitioner’s] attorney of record.

       I question whether under the facts of this case the Petitioner’s mother had the
authority to dismiss the direct appeal and to waive appellate counsel’s conflict. Our
supreme court has stated that ―[t]here is no constitutional right to appeal, but where
appellate review is provided by statute, the proceedings must comport with constitutional
standards.‖ Serrano v. State, 133 S.W.3d 599, 604 (Tenn. 2004) (citing State v.
Gillespie, 898 S.W.2d 738, 741 (Tenn. Crim. App. 1994)). ―In Tennessee, a criminal
defendant has the right to one level of appellate review.‖ Id. (citing Tenn. R. App. P.
3(b) (2003); Collins v. State, 670 S.W.2d 219, 221 (Tenn. 1984)). Our supreme court
explained that

             [w]hen a defendant chooses to waive the right to a direct
                                           -4-
              appeal, counsel for the defendant shall file a written waiver of
              appeal, signed by the defendant, with the clerk during the
              time within which the notice of appeal could have been filed.
              Tenn. R. Crim. P. 37(d) (2003). ―Such waiver of the right of
              appeal shall clearly reflect that the defendant was aware of
              the right and voluntarily waived it.‖ Id.; see also Carter v.
              State, 102 S.W.3d 113, 119 (Tenn. Crim. App. 2002). Any
              purported waiver of the right to appeal is to be carefully
              scrutinized. See Collins, 670 S.W.2d at 221; see also United
              States v. Cunningham, 292 F.3d 115, 117 (2d Cir. 2002).

Serrano, 133 S.W.3d at 604. Additionally, ―the right to post-conviction relief is created
by statute . . . [, and] a petitioner may also waive the right to post-conviction relief.‖ Id.
(citing Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992)).

        The right to trial is an individual, personal constitutional right. As we have noted,
the right to first tier appellate review is a statutory right, but the ―proceedings must
comport with constitutional standards.‖ Serrano, 133 S.W.3d at 604. I conclude that
these rights and requirements are too fundamental for a competent person to delegate to
another person through a general power of attorney. See Extendicare Homes, Inc. v.
Whisman, 478 S.W.3d 306, 328 (Ky. 2015) (―Absent a clearly expressed, knowing, and
voluntary waiver, we do not conclude that an individual has waived his constitutional
right to remain silent in the face of police questioning; to have the assistance of counsel
during a trial; to plead guilty to a crime and thereby waive his right to a trial.‖), as
corrected (Oct. 9, 2015), reh’g denied (Feb. 18, 2016), cert. granted sub nom. Kindred
Nursing Centers Ltd. P’ship v. Clark, 137 S.Ct. 368 (2016). However, I recognize that a
―next friend‖ may act for an incompetent person, even to the point of exercising an
appeal. See Holton v. State, 201 S.W.3d 626, 634-35 (Tenn. 2006), as amended on
denial of reh’g (June 22, 2006).

       The record contains no evidence that the Petitioner is mentally challenged or
incompetent. The issue was not addressed by the parties or the post-conviction court.
Because the record is not adequate for this court to review the issue, I would remand for a
hearing to determine why the Petitioner did not personally waive his right to a direct
appeal and to appellate counsel’s conflict.


                                                   _________________________________
                                                   NORMA MCGEE OGLE, JUDGE




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