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Branner v. State

Court of Criminal Appeals of Tennessee, Knoxville

April 3, 2017

MARCUS L. BRANNER
v.
STATE OF TENNESSEE

          Assigned on Briefs February 23, 2017

         Appeal from the Criminal Court for Knox County No. 101380 Steven W. Sword, Judge

         The petitioner, Marcus L. Branner, appeals the summary dismissal of his 2013 petition for post-conviction relief, which challenged his 2001 convictions of second degree murder and attempted second degree murder. Discerning no error, we affirm.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

          Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Marcus L. Branner.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Charme P. Allen, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         This case has quite the convoluted and rather unfortunate procedural history. In 2001, a Knox County Criminal Court jury convicted the petitioner of one count of second degree murder and two counts of attempted second degree murder, and the petitioner received an effective sentence of 24 years' incarceration when the trial court entered the judgments on August 2, 2001. State v. Marcus L. Branner, No. E2006-00939-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Knoxville, May 31, 2007), perm. app. granted (Tenn. Nov. 5, 2007) (Branner I). At the petitioner's November 1, 2001 hearing on a motion for new trial, trial counsel informed the court that "he was not moving for a new trial and was instead proceeding directly to an appeal in which he would raise sufficiency of the evidence." Id. The record is abundantly clear that trial counsel never sought an appeal on the petitioner's behalf. See id.

          On October 4, 2002, the petitioner wrote to the clerk of the appellate courts to inquire about the status of his appeal, and 10 days later, the appellate court clerk's office responded by letter to inform the petitioner that no appeal of his case was presently pending. Id. On April 21, 2003, the petitioner filed with the trial court, under docket number 67840, a pro se petition for a delayed appeal, "in which he alleged he had learned by letter from the appellate court clerk dated October 14, 2002, that trial counsel had not filed an appeal on his behalf, that he had not waived his right to a timely direct appeal, and that counsel had misled him about the status of a direct appeal." Id., slip op. at 1-2. More than 15 months later, when no action had been taken on his petition for delayed appeal, the petitioner filed another petition for delayed appeal in case number 67840 as well as a pro se petition for post-conviction relief, which petition was assigned docket number 80087. In his petition for post-conviction relief, the petitioner generally alleged ineffective assistance of counsel for failure to file a direct appeal and for an "illegally enhanced sentence." On August 4, 2004, the post-conviction court summarily dismissed the petitioner's post-conviction relief petition in case number 80087 on the ground that it was time-barred.

         In the meantime, the petitioner had filed a complaint with the Board of Professional Responsibility regarding trial counsel's failure to seek an appeal. On November 4, 2005, trial counsel was publicly censured for failing to file a direct appeal on the petitioner's behalf.

         On November 29, 2005, the trial court finally appointed counsel to the petitioner in case number 67840, and in April 2006, the trial court conducted a hearing on the petitioner's new motions for new trial and for delayed appeal. Branner I, slip op. at 2. Although it is not completely clear from the record before us, it appears that the trial court denied the petitioner's motions but stated on the record, "'I am glad that we got this back up here for a Motion for New Trial. You certainly have every right to appeal that.'" The petitioner filed a timely appeal to this court, which court then dismissed the appeal, concluding that nothing in the record indicated that the petitioner had been granted a delayed appeal, and that, therefore, the court was without jurisdiction to address the petitioner's case. Id., slip op. at 2-3. Subsequently, the supreme court granted the petitioner's application for permission to appeal, and, in a brief order entered November 5, 2007, remanded the case to the trial court upon finding that a conflict between the court minutes and the transcript rendered it unclear whether the trial court intended to grant a delayed appeal on the petitioner's April 21, 2003 petition. The high court further decreed that "[a]n order granting or denying a delayed appeal must be entered under a separate docket number for a post-conviction proceeding, " citing Tennessee Code Annotated section 40-30-113.

         On January 29, 2009, the petitioner, through counsel, moved the post-conviction court to "[t]reat petitioner's April 21, 2003 'petition for a delayed appeal' as a pro se petition for post-conviction relief seeking a delayed appeal" and "assign an appropriate new docket number." Two years later, on January 31, 2011, the post-conviction court entered an order in case number 90810 granting the motion, treating the petitioner's April 21, 2003 petition for delayed appeal as one for post-conviction relief "with a delayed appeal as the relief requested." The post-conviction court went on to find that "although that filing was filed later than one year after the original judgments became final, the statutory limitations period was effectively tolled by the [p]etitioner's reasonable belief, based upon his trial counsel's assurances that an appeal would be filed, that a direct appeal was pending during that time." The petitioner then pursued his delayed direct appeal, challenging only the sufficiency of the convicting evidence and the length of his sentence. State v. Marcus L. Branner, No. E2011-00404-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Knoxville, January 17, 2012) (Branner II). This court affirmed the trial court's judgments, see id., and the supreme court denied the petitioner's application for permission to appeal on April 11, 2012.

         On April 8, 2013, the petitioner filed a comprehensive, pro se petition for post-conviction relief, alleging, inter alia, numerous instances of ineffective assistance of both trial counsel and counsel for petitioner's motion for new trial and subsequent appeal; the new petition for post-conviction relief was assigned case number 101380. The post-conviction court appointed counsel on April 26, 2013. Nearly three years later, the State answered the petition, asserting that "the allegations of this second and/or third petition for post-conviction relief were previously determined and/or waived." Post-conviction counsel filed a response, arguing that the instant petition was filed within one year of the supreme court's denial of the petitioner's Rule 11 application ...


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