Kenneth Smith v. State of Tennessee ( 2002 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 6, 2002
KENNETH SMITH v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Fayette County
No. 4482 Jon Kerry Blackwood, Judge
No. W2001-02088-CCA-R3-PC - Filed November 14, 2002
Petitioner, Kenneth Smith, appeals pro se the trial court’s dismissal of his Petition for Post-
Conviction Relief, which he also filed pro se. The record on appeal does not contain the transcript
of the proceedings below. There is nothing in the record to indicate that Petitioner’s court-appointed
counsel was allowed to withdraw or that Petitioner waived the assistance of counsel on appeal.
Pursuant to our holding in Drummer v. State, 6 S.W.3d 520 (Tenn. Crim. App. 1999), the judgment
of the trial court is vacated and this case is remanded for the trial court to reinstate the order
dismissing the Petition for Post-Conviction Relief. If Petitioner is still indigent, counsel appointed
to represent Petitioner at the post-conviction hearing shall continue to represent Petitioner on appeal
and the case shall proceed pursuant to the Tennessee Rules of Appellate Procedure.
Tenn. R. App. P. 3 Appeal as of Right;
Judgment of the Circuit Court Vacated and Remanded.
THOMAS T. WOODA LL, J., delivered the opinion of the court, in which JOSEPH M. TIPTON, and JOHN
EVERETT WILLIAMS, JJ., joined.
Kenneth Smith, Whiteville, Tennessee, pro se.
Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Colin A. Campbell, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
Petitioner filed a pro se Petition for Post-Conviction Relief in the Circuit Court of Fayette
County. After the petition was filed, the trial court entered a “Preliminary Order” finding Petitioner
to be indigent and appointed counsel, Thomas M. Minor, to represent Petitioner. The State filed an
answer and an evidentiary hearing was held August 20, 2001. On August 21, 2001, the post-
conviction court entered an order making findings of fact and dismissed the petition for post-
conviction relief. On August 28, 2001, Petitioner filed a pro se “Notice of Appeal.”
The record was filed with this court on March 13, 2002. It consists only of the “technical
record,” and does not contain a transcript of the proceedings below. There is no order in the record
indicating that Petitioner’s court-appointed counsel was allowed to withdraw as counsel of record
for Petitioner, nor is there anything in the record to indicate that Petitioner voluntarily and knowingly
waived his right to counsel on appeal. On May 7, 2002, this court entered an order giving Petitioner
until June 3, 2002 to file his brief, which had not yet been filed. Petitioner filed his brief on June
3, 2002, in which he argues primarily that he was denied his constitutional rights to due process
because the State did not supply a transcript of the proceedings for this appeal. The State takes the
position, in its brief, that it was Petitioner’s responsibility to request a transcript, and that since he
did not do so, the record is incomplete and the appeal should be deemed waived by Petitioner.
Approximately two years before the trial court dismissed the petition for post-conviction
relief in this case, our court filed its opinion in Drummer v. State, 6 S.W.3d 520 (Tenn. Crim. App.
1999). In Drummer, we held that an indigent petitioner in a post-conviction proceeding is entitled
to have counsel appointed on the direct appeal from the denial of his first petition for post-conviction
relief. The right is not constitutional, but is provided for by an interpretation of provisions of
Tennessee Supreme Court Rule 28, Rule 18 of the Tennessee Rules of Appellate Procedure, and
Tennessee Code Annotated sections 40-30-215, 40-14-205, and 40-14-203. In addition, we held that
pursuant to Tennessee Code Annotated section 40-14-312, a petitioner who has already been
declared indigent by the trial court is entitled to a transcript of the evidentiary hearing concerning
a post-conviction petition. Drummer, 6 S.W.3d at 522-23.
In addition to there being nothing in the record to reflect that appointed counsel was allowed
to withdraw as attorney of record, there is nothing in the record indicating that Petitioner voluntarily
and knowingly waived his right to counsel. In fact, in his brief, Petitioner argues that the United
States Supreme Court has recognized a right to a trial transcript even in situations in which there is
“no right to counsel (as in present case).” (Emphasis in original). The clear implication is that
Petitioner is under the impression that he is not entitled to counsel in the appeal of the dismissal of
his petition for post-conviction relief.
We reassert here what we held in Drummer. If counsel is appointed for an indigent petitioner
in a first petition for post-conviction relief, and if there is an evidentiary hearing followed by the
entry of an order dismissing the petition, appointed counsel at the trial court level continues to
represent the petitioner in the event of an appeal from the post-conviction court’s order, unless
counsel is allowed to withdraw by court order. Drummer, 6 S.W.3d at 522-23. In the event counsel
is allowed to withdraw, another attorney must be appointed to represent the indigent petitioner in the
appeal. Id.
The procedural posture of this case requires that we vacate the judgment of the post-
conviction court and remand this case to the trial court with instructions to re-enter the order
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dismissing the petition for post-conviction relief and ensure that the Petitioner, who, if still indigent,
is notified that he has appointed counsel to represent him in the appeal from the post-conviction
court’s order. Thereafter, this matter shall proceed in accordance with the Tennessee Rules of
Appellate Procedure.
CONCLUSION
For the foregoing reasons, the order entered by the trial court dismissing the petition for post-
conviction relief is vacated and set aside; this case is remanded to the trial court for re-entry of the
order dismissing the petition for post-conviction relief. The trial court shall ensure that the Petitioner
has appointed counsel to represent him if he so desires to proceed with an appeal of the dismissal
of his petition for post-conviction relief. Thereafter, this matter shall proceed in accordance with the
Tennessee Rules of Appellate Procedure.
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THOMAS T. WOODALL, JUDGE
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