Howard v. State

• Decision Date: 16 July 2020
• Docket Number: No. W2018-00786-SC-R11-PC,W2018-00786-SC-R11-PC
• Citation: 604 S.W.3d 53
• Parties: Antonio HOWARD v. STATE of Tennessee
• Court: Tennessee Supreme Court

604 S.W.3d 53

Antonio HOWARD

v.STATE of Tennessee

No. W2018-00786-SC-R11-PC

Supreme Court of Tennessee, AT JACKSON.

Assigned on Briefs April 1, 2020

FILED July 16, 2020

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; Caitlin Smith, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd and Jamie Kidd, Assistant District Attorneys General, for the appellant, State of Tennessee.

Patrick E. Stegall, Memphis, Tennessee (at post-conviction hearing); and William D. Massey, Memphis, Tennessee (on appeal), for the appellee, Antonio Howard.

Roger A. Page, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Sharon G. Lee, and Holly Kirby, JJ., joined.

Roger A. Page, J.

In this post-conviction appeal, we clarify the appropriate standard to be applied when a criminal defendant claims ineffective assistance of counsel based on trial counsel's failure to file a timely motion for new trial. The petitioner, Antonio Howard, was convicted of several offenses, including aggravated rape, especially aggravated robbery, aggravated robbery, and aggravated assault. Following the conviction and sentencing, the petitioner's trial counsel admittedly failed to file a timely motion for new trial. Consequently, the petitioner was found to have waived several issues on direct appeal. The petitioner filed a petition seeking post-conviction relief claiming, among other things, that counsel was ineffective for failing to file a timely motion for new trial. However, the post-conviction court denied his request, concluding that trial counsel was deficient but that the petitioner was not prejudiced by trial counsel's deficiency. The Court of Criminal Appeals agreed with the post-conviction court that counsel was deficient for failing to file a timely motion for new trial but, relying on Wallace v. State , 121 S.W.3d 652, 658 (Tenn. 2003), held that the petitioner was presumptively prejudiced by the deficiency. The intermediate appellate court, therefore, concluded that the petitioner was entitled to post-conviction relief in the form of a delayed appeal. We granted the State's application for permission to appeal to address whether the Court of Criminal Appeals correctly determined that the petitioner was presumptively prejudiced under these circumstances. We conclude that trial counsel's failure to file a timely motion for new trial does not require a presumption of prejudice, overruling this Court's previous decision in Wallace . We have determined, therefore, that the post-conviction court properly considered whether the petitioner was prejudiced by his trial counsel's deficiency, and we find no error in the post-conviction court's conclusion that he was not. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the post-conviction court denying post-conviction relief.

I. BACKGROUND

In 2014, a jury convicted the petitioner of six counts of aggravated rape, one count of especially aggravated robbery, two counts of aggravated robbery, and three counts of aggravated assault, for which the Criminal Court for Shelby County imposed an effective 124-year sentence. State v. Antonio Howard , No. W2014-02488-CCA-R3-CD, 2016 WL 3131515, at *1 (Tenn. Crim. App. May 26, 2016).¹ Following the jury trial, trial counsel for the petitioner failed to file a timely motion for new trial. See Tenn. R. Crim. P. 33(b) ("A motion for a new trial shall be in writing ... within thirty days of the date the order of sentence is entered.").

Nonetheless, the petitioner appealed, arguing that the evidence was insufficient to support his convictions and challenging the sentence imposed. See State v. Jones , No. M2017-01666-CCA-R3-CD, 2020 WL 2079270, at *3 (Tenn. Crim. App. Apr. 30, 2020) ("Generally, failure to raise an issue, other than sufficiency of the evidence or sentencing, in a motion for a new trial constitutes waiver of that issue for purposes of appellate review."). In his direct appeal, the petitioner also raised the following issues concerning the admission of witness testimony: (1) whether the trial court erred in allowing a co-defendant to testify in street clothing; (2) whether the trial court improperly allowed a victim to testify to "prejudicial" and "grossly irrelevant information"; and (3) whether the trial court erred in not allowing the petitioner to cross-examine a State's witness, an investigator, concerning the substance of her report. In its opinion on direct appeal, the Court of Criminal Appeals addressed only the sufficiency of the evidence and the sentencing issues and determined that plenary review of the remaining alleged errors was waived due to the untimely motion for new trial. Howard , 2016 WL 3131515, at *12 ; see Tenn. R. App. P. 3(e) ("[I]n all cases tried by a jury, no issue presented for review shall be predicated upon error in the admission or exclusion of evidence ... unless the same was specifically stated in a motion for a new trial; otherwise such issues will be treated as waived.").

The petitioner filed a petition for post-conviction relief claiming, inter alia , that trial counsel was ineffective for failing to timely file a motion for new trial within the required 30 days. The motion claimed that trial counsel's failure prevented the petitioner "from pursuing meritorious issues on appeal, thereby failing to subject the states [sic] case to adversarial scrutiny on appeal."²

Indeed, at the hearing on the post-conviction petition, trial counsel testified that he failed to timely file the motion for new trial in the petitioner's case due to a mistake in keeping his own calendar. Counsel explained that, on the day he marked in his calendar to file the motion, "I showed up that day with my motion for a new trial in hand." He learned, however, that the deadline had passed and admitted that his failure resulted in the waiver of several issues on direct appeal. Those additional issues, he acknowledged, were therefore only subject to review for plain error by the appellate court. Even so, on cross-examination, trial counsel testified that, in his opinion, "at the end of the day – the proof in the matter was so overwhelming that [review under the lower standard] wouldn't have made a difference." The petitioner's post-conviction counsel argued that the petitioner "was denied three possible grounds" out of the five issues he raised on appeal and that the petitioner was therefore prejudiced by trial counsel's deficiency. The State, however, posited that the additional issues concerning the admission of witness testimony would not have entitled the petitioner to relief even if they had been properly raised in a motion for new trial.

The post-conviction court denied relief. It concluded that trial counsel was deficient for failing to file a timely motion for new trial; however, it also concluded that the petitioner was not prejudiced by the deficiency. Specifically, the trial court noted the weight of the proof against the petitioner at trial, explaining that trial counsel "was placed in a position where he had no defense. I mean, [the lack of] DNA [evidence] was the only thing he had.... [T]hree female[ ] [victims] pointed the finger at [the petitioner] and the traumatic experience they were put through. And then he had codefendants testifying against him. The chances of being acquitted here were slim and nil." The post-conviction court also relied on the fact that the petitioner received a direct appeal of his conviction despite the waiver of certain issues.

The Court of Criminal Appeals agreed with the post-conviction court's assessment that the petitioner's trial counsel was deficient for failing to timely file a motion for new trial. Howard v. State , No. W2018-00786-CCA-R3-PC, 2019 WL 328419, at *3 (Tenn. Crim. App. Jan. 24, 2019), perm. app. granted (Tenn. June 24, 2019). However, the intermediate appellate court disagreed with the conclusion that the petitioner was not prejudiced by the deficiency. Id. Citing this Court's opinion in Wallace v. State , 121 S.W.3d 652, 656-58 (Tenn. 2003), the Court of Criminal Appeals determined that, because it was apparent from the record that the petitioner intended to file a motion for new trial, the petitioner was presumptively prejudiced by trial counsel's deficient performance. Howard , 2019 WL 328419, at *3-4. Accordingly, the intermediate court reversed the post-conviction court's judgment denying relief and remanded for the entry of an order granting the petitioner a delayed appeal and allowing him to file a new motion for new trial. Id. at *4.

We granted the State's ensuing application for permission to appeal to address whether the Court of Criminal Appeals correctly determined that the petitioner was presumptively prejudiced under these circumstances.

II. ANALYSIS

Tennessee's Post-Conviction Procedure Act is codified at Tennessee Code Annotated sections 40-30-101 to -122 and notably provides as follows: "Relief under this part shall be granted when the conviction or sentence is void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States." Tenn. Code Ann. § 40-30-103 (2018). "The deprivation of effective assistance of counsel is a constitutional claim cognizable under the Post-Conviction Procedure Act." Moore v. State , 485 S.W.3d 411, 418 (Tenn. 2016) (citing Mobley v. State , 397 S.W.3d 70, 79-80 (Tenn. 2013) ). Pursuant to the Act, a defendant seeking post-conviction relief "shall have the burden of proving the allegations of fact by clear and convincing evidence." Tenn. Code Ann. § 40-30-110(f).

"Claims for post-conviction relief based on alleged ineffective assistance of counsel present mixed questions of law and fact." Mobley , 397 S.W.3d at 80 (citing Calvert v. State , 342 S.W.3d 477, 485 (Tenn. 2011) ). The post-conviction court's...