Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs November 18, 2014
Appeal from the Criminal Court for Knox County No. 10-2275 Steven Wayne Sword, Judge
J. Liddell Kirk, Knoxville, Tennessee, for the petitioner, Jerry Rommell Gray.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Mike Flynn, District Attorney General; and Kevin Allen, Assistant District Attorney General, for the respondent, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the court, in which John Everett Williams, and Robert W. Wedemeyer, JJ., joined.
TIMOTHY L. EASTER, JUDGE
This matter is before this Court on Petitioner's appeal of the post-conviction court's dismissal of his petition for post-conviction relief. The procedural posture is complicated by Petitioner's failure to ever have a full hearing on a motion for new trial from his 2010 convictions.
On February 24, 2010, Petitioner was convicted by a Knox County jury of first degree felony murder, attempted especially aggravated robbery, and attempted aggravated robbery. State v. Jerry Rommell Gray, No. E2010-00637-CCA-R3-CD, 2012 WL 2870264, at *1 (Tenn. Crim. App. July 13, 2012). Defendant filed a notice of appeal on March 15, 2010. The trial court did not hold a sentencing hearing until June 18, 2010. The judgments of conviction were entered the same day. On March 8, 2011, Petitioner filed an untimely motion for new trial. The trial court determined that it was without jurisdiction to hear the untimely motion.
Petitioner appealed to this Court. Petitioner's premature notice of appeal, filed prior to the sentencing hearing, was deemed timely filed based on the application of Tennessee Rule of Appellate Procedure 4(d) ("A prematurely filed notice of appeal shall be treated as filed after the entry of the judgment from which the appeal is taken and on the day thereof."). On appeal, this Court reviewed the issues presented for plain error because Petitioner's issues were not raised in a timely motion for new trial. Id. at *4. On direct appeal, Petitioner argued that "the trial court violated Crawford v. Washington, 541 U.S. 36 (2004), by allowing the State to present fingerprint evidence; that the trial court erred when it allowed the State to take additional fingerprints of [Defendant] during trial; and that the trial court erred by failing to instruct the jury regarding accomplice testimony." Id. This Court determined that Petitioner was not entitled to plain error relief; his convictions and sentence were affirmed on appeal. Id. at *8.
Petitioner filed a pro se petition for post-conviction relief on September 11, 2013, in Knox County. Petitioner sought post-conviction relief for his February 24, 2010 convictions for which he received a life sentence plus fifteen years. Petitioner acknowledged the untimeliness of his post-conviction petition but asserted that a new rule of constitutional law, ineffective assistance of counsel, prosecutorial misconduct, and judicial misconduct mandated relief.
Counsel was appointed and an amended petition was filed. In the amended petition, Petitioner asserted that trial counsel was ineffective for filing a premature notice of appeal and for filing an untimely motion for new trial. Petitioner complained that the alleged ineffective assistance of counsel required Petitioner's issues to be "subject to the more difficult standard of plain error review" on appeal.
The post-conviction court held a hearing on the petition for relief. No testimony was offered at the hearing. The post-conviction court heard argument of counsel and took the matter under advisement. The post-conviction court entered an order containing findings of fact and conclusions of law. In the order, the post-conviction court noted that Petitioner asserted and the State did not contest that trial counsel's performance fell below reasonable professional standards with regard to the failure to timely file a motion for new trial. The post-conviction court determined that trial counsel's errors resulted in Petitioner's issues being reviewed for plain error on appeal. The post-conviction court deemed trial counsel's actions to amount to ineffective assistance of counsel. Specifically, the post-conviction court determined that the actions of counsel were "presumptively prejudicial." Additionally, the post-conviction court determined that "although Petitioner's appellate issues were reviewed for plain error, trial counsel's failure to timely file a motion for new trial resulted in a higher standard of scrutiny on appeal and potential waiver of issues, and therefore, Petitioner's prior direct appeal does not remove the prejudice to him." The post-conviction court determined that Petitioner would have raised the issues he raised on direct appeal in a motion for new trial had it not been for trial counsel's ineffectiveness. As a result, the post-conviction court denied Petitioner a new trial but granted Petitioner a delayed appeal pursuant to Tennessee Code Annotated section 40-30-113(a)(1). The post-conviction court noted that a motion for new trial was filed in the original case and that it was "just late, " commenting that "the [c]ourt's understanding of the law is that the issues that were raised in the late-filed ...