Assigned on Briefs December 5, 2017
from the Circuit Court for Benton County No. 14-CR-73 Charles
C. McGinley, Judge
Defendant, Joel Wayne Allen, appeals his convictions from a
jury trial, arguing that the evidence was insufficient to
support his convictions and that he received ineffective
assistance of counsel. The Defendant filed an untimely notice
of appeal, and the interest of justice does not support
waiver of the timely filing requirement. Accordingly, we
dismiss the appeal.
R. App. P. 3 Appeal as of Right; Appeal Dismissed
Anthony L. Clark, Paris, Tennessee (on appeal); and Alan
George Ward, Camden, Tennessee (at trial), for the appellant,
Joel Wayne Allen.
Herbert H. Slatery III, Attorney General and Reporter;
Jonathan H. Wardle, Assistant Attorney General; Matthew F.
Stowe, District Attorney General; and Vance Dennis and Bruce
Griffey, Assistant District Attorneys General, for the
appellee, State of Tennessee.
E. Glenn, J., delivered the opinion of the court, in which
John Everett Williams and J. Ross Dyer, JJ., joined.
E. GLENN, JUDGE
Defendant was indicted on fourteen counts, resulting from two
separate arrests. On July 6, 2015, the Defendant was tried on
the first four counts of the indictment. A Benton County jury
found the Defendant guilty of one count of domestic assault,
two counts of simple possession of a Schedule VI controlled
substance, and one count of possession of unlawful drug
paraphernalia. The trial court imposed sentences of eleven
months and twenty-nine days for each conviction, which were
to run concurrently with each other but consecutively to his
sentence from another case. Judgments were entered on January
28, 2016. It does not appear that the Defendant filed a
motion for new trial as the appellate record does not include
a motion, an order from the trial court addressing a motion
for new trial, or a transcript of a hearing on any motion for
new trial. Trial counsel filed a notice of appeal of the jury
convictions on May 11, 2016. The Defendant entered a
subsequent plea agreement with the State for the remaining
indicted charges on May 12, 2016.
appellate record was filed on August 29, 2016, but the record
did not include the trial transcript. Trial counsel failed to
file a timely appellate brief. This court issued an order due
to trial counsel's failure to file a brief, and trial
counsel did not respond. On November 1, 2016, trial counsel
was suspended from the practice of law by order of the
Tennessee Supreme Court. This court removed trial counsel
from this case, and current counsel entered a notice of
appearance. Current counsel supplemented the record to
include the transcript and filed an appellate brief. The
Defendant did not address the late-filed notice of appeal in
Rule of Appellate Procedure 4(a) provides that the notice of
appeal must be filed "within 30 days after the date of
entry of the judgment appealed from." Rule 4(a) also
allows for this court to waive the timely filing requirement
"in the interest of justice." This court considers
"the nature of the issues for review, the reasons for
the delay in seeking relief, and other relevant factors"
in determining whether waiver is appropriate. Michelle
Pierre Hill v. State, No. 01C01-9506-CC-00175, 1996 WL
63950, at *1 (Tenn. Crim. App. Feb. 13, 1996). The Defendant
has the burden of establishing that waiver is appropriate.
State v. Kevin Montrell Thompson, No.
E2016-01565-CCA-R3-CD, 2017 WL 262701, at *2 (Tenn. Crim.
App. Jan. 20, 2017), no perm. app. filed.
review of the record shows that although this appeal involves
a fourteen-count indictment, the four charges at issue on
appeal were tried separately from the remainder of the
indictment. The judgments from the jury trial were entered on
January 28, 2016. The Defendant's notice of appeal was
filed on May 11, 2016, over three months later. While this
court recognizes that the attorney responsible for the late
notice of appeal was removed by this court after ...