Johnny Bernard Jones appeals the dismissal of his post-conviction relief petition following his convictions for possession of cocaine (over 26 grams) with intent to sell and possession of marijuana, for which he received a twenty-year sentence as a Range II offender. His convictions were previously affirmed on direct appeal. In his post-conviction petition, Jones raised several claims of error, including ineffective assistance of counsel due to failure to timely file a Rule 11 application, failure to introduce critical evidence, failure to file a Rule 9 interlocutory appeal, and coercing him not to testify. Additionally, he contended that the trial court erred by denying his motions for severance and sentencing.
The appellate court found that while most of Jones's claims did not warrant relief, the failure of his defense counsel to timely file a Rule 11 application constituted ineffective assistance. As a result, Jones was granted the right to seek a delayed appeal to the Tennessee Supreme Court, while the denial of post-conviction relief on the remaining claims was affirmed. The appeal is governed by the 1995 Post-Conviction Procedure Act, requiring Jones to prove his allegations by clear and convincing evidence.
Findings of fact and conclusions of law by a post-conviction court are treated as equivalent to a jury verdict, and appellate courts are bound by these findings unless evidence strongly contradicts them. Appellate courts cannot reassess evidence or draw different inferences than those made by the trial court. The evaluation of ineffective assistance of counsel claims involves mixed questions of law and fact, permitting de novo review. To succeed, the Appellant must show that counsel's performance was below the standard of competence expected in criminal cases, as defined in Strickland v. Washington, which requires proof of both deficient representation and resulting prejudice.
In this case, the Appellant argued for a delayed appeal based on ineffective assistance of counsel due to a late application for permission to appeal to the Tennessee Supreme Court, which was filed one day beyond the deadline by counsel Andrew Johnston, who admitted to miscalculating the timeline. Johnston had advised the Appellant to pursue a post-conviction claim if the application was denied, which it was. The post-conviction court denied the Appellant’s petition for relief, asserting that counsel had provided sound legal advice and kept the Appellant informed. Although the court recognized the merit of the late filing and acknowledged a factual basis for relief, it concluded it lacked the authority to vacate and reinstate the prior judgment to allow for a timely filing, clarifying that only the Appellate Court could grant such relief according to precedent set in Pinkston v. State.
The 1995 Post-Conviction Procedure Act grants trial courts the authority to permit delayed appeals for second tier appellate review, as articulated in TENN. CODE ANN. 40-30-213(a)(1997) and supported by Tenn. Sup. Ct. R. 28, 9(D). The State acknowledges the Appellant's right to pursue this relief, allowing for a delayed appeal to the supreme court regarding the original conviction, alongside a request for a new trial via post-conviction relief. However, simultaneous appeals are complicated by the prohibition against maintaining a post-conviction petition while a direct appeal is ongoing, as established in prior cases including Laney v. State.
The Appellant's premature post-conviction petition should be dismissed due to procedural rules requiring that such petitions can only be filed after the highest court's final judgment. If the supreme court grants the delayed appeal and rules in favor of the Appellant, the issues raised in the original case may become moot, potentially rendering this court's proceedings unnecessary. The recommended procedure is for the trial court to grant the delayed appeal when appropriate and dismiss the post-conviction petition without prejudice, allowing for future relief following the supreme court's decision. The Appellant must file any subsequent post-conviction relief petition within one year of the supreme court's ruling, or it will be barred.
Additionally, the Appellant claims ineffective assistance of counsel, arguing that defense counsel failed to move for a severance based on letters exchanged with a co-defendant prior to trial. The letters allegedly implicate the co-defendant in the crimes and suggest attempts to shift responsibility onto the Appellant.
Appellant's claim of ineffective assistance of counsel is unfounded as defense counsel did argue for a motion to sever based on the relevance of letters, which the trial court ultimately denied. At the post-conviction hearing, counsel detailed his rationale for the severance motion and the trial court's rejection of it. The Appellant failed to demonstrate any deficiency in counsel's performance. Additionally, of five letters from the co-defendant, only one statement was deemed admissible, and the omission of this statement did not prejudice the defense.
Regarding the Appellant's assertion that counsel was ineffective for not filing an interlocutory appeal after the severance denial, the court noted that the issue was preserved and addressed on direct appeal, rendering the manner of appeal irrelevant.
The claim that counsel coerced the Appellant into not testifying was also found without merit. Counsel advised against testifying due to the potential introduction of prior criminal history and credibility concerns, but left the ultimate decision to the Appellant, who confirmed to the trial judge it was his choice not to testify. The court upheld the trial court’s findings, indicating no evidence contradicted them.
The Appellant's argument challenging the trial court's denial of the severance motion was previously decided on direct appeal and could not be relitigated in a post-conviction context. Similarly, the sentencing issue raised was barred from review in post-conviction proceedings as it had already been addressed on direct appeal.
In conclusion, the post-conviction court's denial of relief on the grounds of ineffective assistance of counsel was affirmed, with an allowance for the Appellant to seek a delayed appeal to the Tennessee Supreme Court within sixty days.
