Robert A. Grisham v. State of Tennessee ( 2022 )

01/25/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 28, 2021
ROBERT A. GRISHAM v. STATE OF TENNESSEE
Appeal from the Criminal Court for Knox County
No. 112957 G. Scott Green, Judge
___________________________________
No. E2020-01545-CCA-R3-PC
___________________________________
A Knox County jury convicted Robert Alexander Grisham, Petitioner, of observation
without consent, unlawful photography, and especially aggravated sexual exploitation of
a minor. State v. Robert Grisham, No. E2015-02446-CCA-R3-CD, 2017 WL 1806829,
at *11 (Tenn. Crim. App. May 5, 2017), perm. app. denied (Tenn. Sept. 20, 2017). On
appeal, a panel of this Court modified Petitioner’s especially aggravated sexual
exploitation of a minor conviction to attempted especially aggravated sexual exploitation
of a minor and affirmed the two misdemeanor convictions. Id. at *26. Petitioner sought
post-conviction relief alleging two claims of ineffective assistance of counsel. The post-
conviction court denied relief and Petitioner appealed. Petitioner died while his appeal
was pending. Accordingly, we conclude that this appeal should be dismissed.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Robert Alexander Grisham.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; and Ashley McDermott,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
A Knox County Grand Jury indicted Petitioner with three counts of especially
aggravated sexual exploitation of a minor, one count of observation without consent, one
count of unlawful photography, and seven counts of sexual exploitation of a minor. Id. at
*1. Following a jury trial, Petitioner was convicted of observation without consent,
unlawful photography, and especially aggravated sexual exploitation of a minor. Id. at
*11. Petitioner received an effective sentence of nine years’ incarceration. Id.
On direct appeal, a panel of this Court affirmed Petitioner’s misdemeanor
convictions but reversed and vacated his conviction for especially aggravated sexual
exploitation of a minor and remanded to the trial court for entry of a judgment of
conviction for attempted especially aggravated sexual exploitation of a minor and
sentencing on that conviction. Id. at *26.
Petitioner filed a timely pro se petition for post-conviction relief raising one claim
of ineffective assistance of counsel. Petitioner filed an amended petition through counsel,
incorporating the original claim and raising a second claim of ineffective assistance of
counsel.
A post-conviction hearing was held on October 8, 2020. The post-conviction
court denied relief, and Petitioner appealed. On November 30, 2021, counsel for
Petitioner filed a notice that Petitioner had died while his appeal from the denial of post-
conviction relief was pending. Citing to State v. Al Mutory, 581 S.W.3d 741 (Tenn.
2019), counsel asserted that the appeal should proceed because “a ruling in this post-
conviction appeal in [Petitioner]’s favor could potentially result in vacating his criminal
convictions.” On December 2, 2021, counsel for the State filed a motion to dismiss this
appeal, arguing that the collateral attack on the original conviction did not survive the
death of Petitioner. On December 7, 2021, counsel for the State filed the death certificate
with this Court. That same day, this Court directed the parties to file supplemental briefs
addressing whether the Al Mutory analysis extends to appeals from the denial of
collateral relief.
On December 23, 2021, counsel for the Petitioner filed a supplemental brief
asserting that Al Mutory should extend to appeals from the denial of collateral relief
where the Petitioner “is seeking, through an appeal as of right, to vacate or overturn a
criminal conviction.” On January 13, 2022, counsel for the State filed a supplemental
brief asserting that Al Mutory does not extend to appeals from the denial of post-
conviction relief because post-conviction relief is not available to petitioners who have
died.
-2-
Analysis
In Al Mutory, our supreme court overruled its decision in Carver v. State, 398
S.W.2d 719 (Tenn. 1966), which reaffirmed the doctrine of abatement ab initio in
Tennessee. As discussed in Al Mutory, the doctrine of abatement ab initio evolved from
considerations concerning the impossibility of punishing a deceased defendant and a
defendant’s right to a direct appeal from a criminal conviction. Al Mutory, 581 S.W.3d at
747-48. In abandoning the doctrine, the court noted that considerations surrounding
restitution and victims’ rights have now “expanded the purpose of the criminal justice
system well beyond the ‘cardinal principle[]’ of ‘punishment.’” Id. at 750 (citing Carver,
398 S.W.2d at 720). In recognition of this change, the court concluded “that the doctrine
of abatement ab initio must be abandoned because it is obsolete, its continued application
would do more harm than good, and it is inconsistent with the current public policy of
this State.” Id. The court then adopted an approach that requires the parties to “advance
any interest[s] . . . that would benefit from allowing [an] appeal to continue.”
Petitioner’s judgments of conviction became final upon the entry of the amended
judgments following this Court’s direct appeal review. Robert Grisham, 2017 WL
1806829. Unlike a direct appeal following a conviction, the statutory rights afforded by
the Post-Conviction Procedure Act are not constitutionally required. Pike v. State, 164
S.W.3d 257, 262 (Tenn. 2005). Thus, the interests surrounding dismissal of an appeal of
the denial of collateral relief are not the same as the interests surrounding the dismissal of
a conviction on direction appeal. As this Court recently observed relative to the
availability of DNA testing pursuant to the Post-Conviction Procedure Act to
representatives of a deceased Petitioner, “collateral attacks on a [petitioner]’s criminal
judgment end[] with the death of the [petitioner].” Est. of Alley v. State, No. W2019-
02046-CCA-R3-PC, 2021 WL 1828501, at *16 (Tenn. Crim. App. May 7, 2021), perm.
app. denied (Tenn. Sept. 22, 2021). Further, as the State asserts, “the plain language of
the Post-Conviction Procedure Act precludes posthumous relief.” See Tenn. Code Ann. §
40-30-102(a) (stating that relief is available to “a person in custody under a sentence of a
court of this state”).
Upon full consideration, we conclude that the holding of Al Mutory is limited to
cases where a defendant dies while a direct appeal is pending and is not applicable to
appeals from the denial of collateral relief. Accordingly, this appeal is dismissed.
CONCLUSION
For the foregoing reasons, this appeal is dismissed.
-3-
____________________________________
TIMOTHY L. EASTER, JUDGE
-4-