Wallace v. State

• Decision Date: 23 December 2003
• Docket Number: No. M2001-02722-SC-R11-PC.,M2001-02722-SC-R11-PC.
• Citation: 121 S.W.3d 652
• Parties: Donald WALLACE v. STATE of Tennessee.
• Court: Tennessee Supreme Court

121 S.W.3d 652

Donald WALLACE v. STATE of Tennessee.

No. M2001-02722-SC-R11-PC.

Supreme Court of Tennessee, at Nashville.

October 1, 2003 Session.

December 23, 2003.

Richard McGee and James O. Martin, III, Nashville, Tennessee, for the Appellant, Donald Wallace.

Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; Dan Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

E. RILEY ANDERSON, J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J., and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

We granted this appeal to determine whether the trial court properly granted the defendant post-conviction relief in the form of a delayed direct appeal on the ground that counsel's failure to file a motion for new trial resulted in the waiver of all issues on direct appeal except for sufficiency of the evidence. The Court of Criminal Appeals dismissed the appeal after concluding that the trial court lacked the statutory authority to grant a delayed appeal and that the defendant had not suffered any prejudice from counsel's performance. After reviewing the record and applicable authority, we conclude that the trial court properly granted a delayed appeal based upon ineffective assistance of counsel. We therefore reverse the Court of Criminal Appeals, affirm the trial court's grant of a delayed appeal, and remand to the Court of Criminal Appeals for review of the issues presented by the defendant's motion for a new trial.

BACKGROUND

In September of 1999, the defendant, Donald Wallace, filed a post-conviction petition seeking to obtain a delayed direct appeal of his 1996 conviction. Our factual summary is taken from the post-conviction proceedings.¹

Wallace was indicted for first degree murder in the 1996 killing of Melinda Sue Perrin. Wallace retained counsel and executed an agreement explicitly stating that trial counsel would be responsible only for representation at trial and would not be responsible for handling any potential appeals. Wallace was convicted of first degree murder by a jury, and the trial court entered a judgment of conviction on January 31, 1997.

After the conviction, trial counsel sent Wallace a letter instructing him how to prepare a motion for new trial and what legal issues should be raised but did not obtain court approval to withdraw as attorney of record. Wallace filed a timely pro se motion for new trial on February 6, 1997. Because trial counsel had failed to withdraw, however, the trial court refused to consider the pro se motion.² On May 20, 1997, trial counsel filed a motion for new trial, and on May 28, 1997, Wallace filed a second pro se motion for new trial, alleging that the evidence was insufficient to support the jury's verdict, that the trial court erred in admitting hearsay evidence and other evidence, and that the trial judge made inappropriate comments in the presence of the jury.³ The trial court granted trial counsel's motion to be relieved from representing the defendant, but did not grant either of the two late-filed motions for new trial.

On appeal, the Court of Criminal Appeals concluded that because no timely motion for new trial had been filed, all issues were waived on appeal except for sufficiency of the evidence. See Tenn. R.App. P. 3(e).⁴ The appellate court held that the evidence was insufficient to support first degree murder, and it remanded to the trial court for re-sentencing for second degree murder. Upon remand, the trial court sentenced Wallace to twenty-five years for second degree murder. Wallace appealed this re-sentencing, which the Court of Criminal Appeals affirmed.

In a petition for post-conviction relief, Wallace, now represented by new counsel, alleged that his original trial counsel was ineffective for failing to file a timely motion for new trial. The petition alleged that the defendant was prejudiced in his original trial because the trial court allowed the State to present inadmissible hearsay evidence that the victim had previously stated that she was afraid of the defendant, which directly contradicted evidence presented by the defendant that the victim had been treated kindly by the defendant. The petition further alleged that the State withheld exculpatory evidence as to the victim's state of mind prior to trial and that the prosecution had in its possession a Tennessee Bureau of Investigation agent's report that would have provided a basis to impeach the prejudicial hearsay testimony.⁵

In a hearing on the petition, Wallace argued that these errors were prejudicial and provided sufficient grounds for a delayed appeal and a new trial. The post-conviction trial court found that Wallace had been denied his direct appeal of these issues due to the ineffectiveness of counsel in failing to file a motion for new trial. The trial court granted a delayed appeal, allowed the defendant to file a motion for new trial, and then denied the motion. The Court of Criminal Appeals dismissed the delayed appeal, however, concluding that Wallace had received a direct appeal, though only on the issue of the sufficiency of the evidence. The appellate court concluded that the defendant had not been prejudiced and that the trial court lacked the authority to grant a delayed appeal.

We granted the defendant's application for permission to appeal.

STANDARD OF REVIEW

Since this case arises from the Post-Conviction Procedure Act, Tennessee Code Annotated section 40-30-101, et seq. (2003), the defendant is required to prove the allegation contained in his petition by clear and convincing evidence. Nichols v. State, 90 S.W.3d 576, 586 (Tenn.2002). A trial court's factual findings shall not be disturbed unless the evidence in the record preponderates against them. Id. Determinations of whether counsel provided a defendant constitutionally deficient assistance present mixed questions of law and fact. Id. As such, our review is de novo, and we accord the conclusions reached below no presumption of correctness. Id.

In this case, the Court of Criminal Appeals based its opinion largely upon its interpretation of the statutory law applicable to delayed direct appeals. Statutory interpretation presents a question of law, which we review de novo, according the conclusions reached below no presumption of correctness. State v. Tait, 114 S.W.3d 518, 521 (Tenn.2003).

ANALYSIS

The defendant contends that the trial court properly granted a delayed appeal under the facts of this case and that the Court of Criminal Appeals erred by reversing the trial court's ruling and dismissing the appeal. The defendant requests a new trial or a remand to the Court of Criminal Appeals to address the issues raised in his delayed motion for new trial. The State contends that the Court of Criminal Appeals correctly dismissed the appeal.

We begin our analysis by reviewing when a defendant may obtain a delayed appeal as set forth in Tennessee Code Annotated section 40-30-113 (2003):

(a) When the trial judge conducting a hearing pursuant to this part finds that the petitioner was denied the right to an appeal from the original conviction in violation of the Constitution of the United States or the Constitution of Tennessee and that there is an adequate record of the original trial proceeding available for such review, the judge can:

(1) [G]rant a delayed appeal; or

* * *

(3) If no motion for a new trial was filed in the original proceeding, authorize such motion to be made before the original trial court within thirty (30) days. Such motion shall be disposed of by the original trial court as if the motion had been filed under authority of Rule 59 of the Rules of Civil Procedure.

(Emphasis added). Similarly, Tennessee Code Annotation section 40-30-111(a) provides, in part:

If the court finds that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable, including a finding that trial counsel was ineffective on direct appeal, the court shall vacate and set aside the judgment or order a delayed appeal as provided in this part and shall enter an appropriate order.

Accordingly, these statutes clearly indicate that a defendant may receive a delayed appeal where there has been a denial of the effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution and article I, section 9 of the Tennessee Constitution. In determining whether a defendant has been denied the constitutional right to effective counsel, courts apply a two-pronged test. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also State v. Burns, 6 S.W.3d 453, 461 (Tenn.1999).

First, a defendant must prove that counsel was ineffective by showing errors made by counsel that caused the assistance of counsel to fall below prevailing professional norms. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In making this assessment, however, courts must be deferential to the tactical decisions of counsel and must not base assessments on a lawyer's competence from the clear perspective of hindsight. Id. at 689, 104 S.Ct. 2052.

Second, upon establishing that counsel was deficient, the petitioner must establish a reasonable probability that the outcome of the trial would have been different but for the deficiencies of counsel. Strickland, 466 U.S. at 687, 694, 104 S.Ct. 2052. Although this second prong of the Strickland analysis is commonly referred to as "actual prejudice," see, e.g., Overton v. State, 874 S.W.2d 6, 11 (Tenn.1994), there is a small category of cases in which actual prejudice need not be shown. See United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In Cronic, for example, which was decided on the same day as Strickland, the United States Supreme Court stated that there are situations where counsel...