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Prewitt v. State

Court of Criminal Appeals of Tennessee, Nashville

March 8, 2017

QUANYA REVELL PREWITT
v.
STATE OF TENNESSEE

          Assigned on Briefs May 10, 2016

         Direct Appeal from the Criminal Court for Davidson County No. 2012-A-48 Cheryl A. Blackburn, Judge

         The Petitioner, Quanya Revell Prewitt, filed a petition for post-conviction relief, alleging various claims of ineffective assistance of counsel. The post-conviction court denied relief, and the Petitioner appeals. Upon review, we conclude that because of the postconviction court's failure to comply with the mandates of section 9(D)(1)(b)(i) of Tennessee Supreme Court Rule 28, we are compelled to reverse the denial of postconviction relief and remand for further proceedings consistent with this opinion.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed; Case Remanded.

          David M. Hopkins, Murfreesboro, Tennessee, for the Appellant, Quanya Revell Prewitt.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Glenn R. Funk, District Attorney General; and Megan King, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         After an April 9, 2012, the Petitioner was convicted of possession with intent to sell or deliver dihydrocodeinone, a Schedule III substance, in a school zone. State v. Quanya Revell Prewitt, No. M2012-01627-CCA-R3-CD, 2013 WL 3282869, at *1 (Tenn. Crim. App. at Nashville, June 26, 2013). The trial court imposed a sentence of four years with the first three years to be served at 100% and the remaining one year on probation. On June 26, 2013, this court affirmed the Petitioner's conviction on direct appeal. Id. The Petitioner did not file a timely application for permission to appeal to the supreme court.

         On February 26, 2014, the Petitioner filed a timely pro se petition for post-conviction relief ("first petition"). See Tenn. Code Ann. § 40-30-102(a) (providing that in order to obtain relief, a post-conviction petition must be filed within one year of the final action of the highest state appellate court to which an appeal is taken). The only issue specifically raised in the first petition was that "[e]vidence was not introduced to the State/Courts for review in this case." On March 13, 2014, the court appointed post-conviction counsel ("first post-conviction counsel"). On June 27, 2014, the post-conviction court entered an order stating that the matter was before the court "on a post-conviction status hearing." In the order, the court granted the Petitioner a delayed appeal and noted that the "parties agreed [to] DISMISS WITHOUT PREJUDICE the post-conviction proceeding."[1] The order stated that the Petitioner "may refile a post-conviction petition after the ruling on her appeal."

         When first post-conviction counsel filed the application for permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure, the post-conviction court's order granting a delayed appeal was not attached to the application. On October 20, 2014, our supreme court dismissed the delayed appeal as untimely.

         On January 20, 2015, the Petitioner filed another pro se post-conviction petition ("second petition"), again alleging that that she was denied effective assistance of counsel and that "[e]vidence was not introduced on my behalf to the courts/State for review in this case." On January 26, 2015, the post-conviction court found that the Petitioner had presented a colorable claim and appointed post-conviction counsel ("second post-conviction counsel"). On April 15, 2015, second post-conviction counsel filed an amended post-conviction petition on behalf of the Petitioner ("amended petition"). The amended petition alleged that trial counsel failed to properly investigate her case, inform her of the charges and evidence against her, and advise her that she could either plead guilty or proceed to trial. The amended petition further alleged that trial counsel should have obtained an interpreter for a witness who testified at trial and should have objected to the witness's testimony as hearsay. The amended petition maintained that counsel was ineffective by failing to file a timely application for permission to appeal to the supreme court. Finally, the amended petition asserted that the State committed prosecutorial misconduct by obtaining a superseding indictment against the Petitioner solely because she would not plead guilty in general sessions court and that trial counsel should have filed a motion to dismiss the superseding indictment.

         The post-conviction court conducted an evidentiary hearing on May 27, 2015. On October 14, 2015, the post-conviction court issued an order, addressing the merits of the Petitioner's post-conviction claims, making numerous factual findings, and determining that the Petitioner was not entitled to relief. The order then said:

Since prior post-conviction counsel failed to perfect the Rule 11 appeal, the Court again GRANTS a delayed Rule 11 appeal. In light of the unusual posture of the case, should said Rule 11 appeal lead to any additional post-conviction issues, counsel may file a supplemental petition with the Court raising the additional ...

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