Richard Cleophus Smith v. State of Tennessee

10/31/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 27, 2022
RICHARD CLEOPHUS SMITH v. STATE OF TENNESSEE
Appeal from the Criminal Court for Knox County
No. 107115 G. Scott Green, Judge
No. E2022-00200-CCA-R3-PC
The petitioner, Richard Cleophus Smith, appeals the denial of his petition for post-
conviction relief, which petition challenged his convictions of first degree murder,
attempted first degree murder, employing a firearm during the commission of a dangerous
felony, evading arrest, reckless endangerment, and leaving the scene of an accident
involving injury, alleging that he was deprived of the effective assistance of counsel and
due process. Because the petitioner’s post-conviction counsel also represented the
petitioner on direct appeal, we remand to the post-conviction court to determine whether
the petitioner knowingly and voluntarily agrees to waive post-conviction counsel’s conflict
of interests.
Tenn. R. App. P. 3; Judgment of the Criminal Court Vacated and Remanded
JAMES CURWOOD WITT, JR., P.J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, and CAMILLE R. MCMULLEN, JJ., joined.
Robert L. Jolley, Jr., Knoxville, Tennessee, for the appellant, Richard Cleophus Smith.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Kevin Allen, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
This case arose from an incident in which the petitioner fired multiple
gunshots from a vehicle, killing one victim and endangering others. State v. Smith, No.
E2013-00215-CCA-R3-CD, 2014 WL 4215882, at *1-2 (Tenn. Crim. App., Knoxville,
Aug. 27, 2014). This court summarized the evidence on direct appeal:
[E]arly on the day in question, Michael Cowan and Ron C.
engaged in an argument. [The petitioner] is Ron C.’s cousin.
That afternoon, witnesses saw a man driving a maroon Cadillac
. . . in the Walter P. Taylor homes. Desmond Cowan, Michael
Cowan’s brother, was leaving the neighborhood market when
someone began shooting at him from a car. Other witnesses
identified the car as a maroon Cadillac . . . . As James Johnson
and his friend, Ronald Gilmore, were walking toward the
neighborhood market they saw and heard gunfire coming from
a maroon Cadillac. The two men ran towards the market, but
Mr. Gilmore did not make it to the market and was fatally
wounded. When Officer [Joseph] Huckleby arrived, witnesses
identified a maroon Cadillac as the car from which the shots
came. The Cadillac came into view, and Officer Huckleby
proceeded to pursue the Cadillac, which fled from him. The
maroon Cadillac hit a vehicle, and the driver of the Cadillac
ran into the nearby woods. Other officers began to pursue the
driver. Eventually, they saw the driver and ordered him to the
ground. [The petitioner] was the driver that they apprehended.
Id. at 4. The jury convicted the petitioner of felony murder, premeditated murder,
attempted first degree murder, employing a firearm during the commission of a dangerous
felony, evading arrest by motor vehicle, evading arrest, reckless endangerment, leaving the
scene of an accident involving injury, and driving without a license in possession. Id. at 2.
After a sentencing hearing, the trial court imposed an effective sentence of life plus 26
years. Id.
The petitioner challenged his convictions and sentence on direct appeal, and
this court vacated the petitioner’s conviction of driving without a license in possession and
affirmed the trial court’s judgments in all other respects. Id. at 1.
With the assistance of counsel, the petitioner filed a timely petition for post-
conviction relief, alleging multiple instances of deficient performance by trial counsel and
violations of his right to due process. Post-conviction counsel also represented the
petitioner on direct appeal. When asked by the post-conviction court during the evidentiary
hearing how counsel could “handle this post-conviction” having also represented the
petitioner on appeal, counsel responded: “Because there’s no issues, and I was requested
to.” The post-conviction court did not further inquire into post-conviction counsel’s
potential conflict of interests nor did the court obtain the petitioner’s knowing and
voluntary waiver of counsel’s conflict. The post-conviction court did, however, question
throughout the hearing whether certain issues were raised on direct appeal.
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We note that a post-conviction petitioner has no constitutional right to
counsel, see Frazier v. State, 303 S.W.3d 674, 680 (Tenn. 2010); however, the post-
conviction petitioner is afforded a statutory right to counsel, see T.C.A. § 40-30-107(b)(1);
Frazier, 303 S.W.3d at 680. Although “performance of post-conviction counsel is not
governed by the standard set forth in Strickland,” Frazier, 303 S.W.3d at 682, a post-
conviction petitioner has “the right to be represented by conflict-free counsel,” id. (quoting
Kevin Burns v. State, No. W2000-02871-CCA-R9-PD (Tenn. Crim. App., Jackson, Aug.
9, 2001)). The role of post-conviction counsel is “not to protect [petitioners] from the
prosecutorial forces of the State, but to shape their complaints into the proper legal form
and to present those complaints to the court.” Frazier, 303 S.W.3d at 682 (quoting People
v. Owens, 564 N.E.2d 1184, 1190 (Ill. 1990)). Though post-conviction counsel’s role
differs from that of trial counsel, “[i]f post-conviction counsel is appointed to mold the
defendant’s allegations into legally cognizable shapes, that counsel must be as conflict-free
as trial counsel.” Frazier, 303 S.W.3d at 681 (quoting People v. Hardin, 840 N.E.2d 1205,
1212 (Ill. 2005)). Post-conviction counsel “with an actual conflict of interest is subject to
disqualification.” McCullough v. State, 144 S.W.3d 382, 386 (Tenn. Crim. App. 2003)
(citing State v. Tate, 925 S.W.2d 548, 553 (Tenn. Crim. App. 1995)).
A conflict of interests exists when “an attorney is placed in a position of
divided loyalties.” McCullough, 144 S.W.3d at 385 (citing State v. Culbreath, 30, S.W.3d
309, 312 (Tenn. 2000)). Such divided loyalties may arise when an attorney who
represented a petitioner on direct appeal also serves as that petitioner’s post-conviction
counsel. Frazier, 303 S.W.3d at 682-83; McCullough, 144 S.W.3d at 385 (stating that
when post-conviction counsel had previously served as the petitioner’s counsel on direct
appeal “it is reasonable to anticipate that [counsel’s] financial, business and/or personal
interests may affect his professional judgment insofar as advising the [petitioner] about any
possible ineffectiveness on his part with respect to the direct appeal”); see also Tenn. Sup.
Ct. R. 8, RPC 1.7(2) (“A concurrent conflict of interest exists if . . . there is a significant
risk that the representation of one or more clients will be materially limited by . . . a
personal interest of the lawyer.”). As our supreme court has stated, “[C]ounsel representing
a post-conviction petitioner can hardly be expected to objectively evaluate his or her
performance on the direct appeal of a conviction and sentence.” Frazier, 303 S.W.3d at
683; (citing Velarde v. United States, 972 F.2d 826, 827 (7th Cir. 1992)).
In addition to an attorney’s “obligation to avoid ethical violations in their
practice of law,” “courts have an independent duty to ensure that all proceedings are
conducted within the ethical standards of the profession and are ‘fair to all who observe.’”
Frazier, 303 S.W.3d at 683 (quoting Wheat v. United States, 486 U.S. 153, 160 (1988);
and citing Cuyler v. Sllivan, 446 U.S. 335, 346-47 (1980)). “When, therefore, the [post-
conviction] court is aware or should be aware of a conflict of interest, there must be an
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inquiry as to its nature and appropriate measures taken.” Frazier, 303 S.W.3d at 683 (citing
Sullivan, 446 U.S. at 346-47). The post-conviction court has an affirmative “duty to either
disqualify counsel with an actual conflict of interest or, as an alternative to disqualification,
assure that a post-conviction petitioner has knowingly and voluntarily waived the conflict.”
Frazier, 303 S.W.3d at 679-80. Our supreme court has provided the following guidelines
a post-conviction court should follow to ensure that a petitioner’s waiver of the conflict of
interest is knowing and voluntary:
[The p]etitioner should (1) be brought into open court, (2) be
given a full explanation on the record how this matter would
affect him; (3) be advised of his right to appointment of other
counsel; (4) be questioned under oath by the parties and the
post-conviction court to determine his understanding of this
matter and waiver; and (5) state under oath whether he desires
to waive any appearance of impropriety.
Frazier, 303 S.W.3d at 684 (quoting Burns, slip op. at 8). If the petitioner makes “a
knowing and voluntary waiver of the conflict of interest that is satisfactory to the [post-
conviction] court,” then “[c]ounsel may continue representation.” Frazier, 303 S.W.3d at
684-85. Absent the petitioner’s valid waiver of the conflict, however, the post-conviction
court must disqualify post-conviction counsel and appoint conflict-free counsel. Id.Because post-conviction counsel here was also the petitioner’s counsel on
the direct appeal of the underlying convictions, the post-conviction court should have either
disqualified counsel and appointed a conflict-free attorney or conducted a hearing to advise
the petitioner of the conflict and to give the petitioner an opportunity to waive the conflict.
Furthermore, several matters in this case raise specific concerns regarding post-conviction
counsel’s conflict of interests. First, this court deemed an issue related to the self-defense
jury instruction waived on appeal because appellate counsel included it only in a footnote
of the brief and failed to “to include an argument or citation to authority.” Smith, 2014 WL
4215882, at *7. Second, post-conviction counsel raised issues of trial court error and
inappropriate statements by the prosecutor in the post-conviction petition under a due
process argument, which issues were not raised on direct appeal. Finally, after post-
conviction counsel submitted the appellate brief in this case, the petitioner moved pro se
for this court to consider “several errors [that] have affected his substantial right,” including
an allegation of the ineffective assistance of appellate counsel.1
Therefore, if the post-conviction court seeks to obtain from the petitioner a
waiver of counsel’s conflict of interests, it should be certain to ascertain whether the
1
This court dismissed the motion, noting that a party represented by counsel may not proceed pro
se.
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petitioner understands that he could have potential claims against appellate counsel but that
his current post-conviction counsel cannot “be expected to objectively evaluate his . . . own
performance on the direct appeal.” See Frazier, 303 S.W.3d at 683.
Accordingly, we vacate the post-conviction court’s judgment and remand to
that court for a determination of whether the petitioner knowingly and voluntarily agrees
to waive the conflict of interests of post-conviction counsel. If the petitioner does not agree
to waive the conflict of interests, the post-conviction “court should appoint counsel, permit
any amendments to the petition, and consider all potential grounds for relief.” Frazier, 303
S.W.3d at 685.
Accordingly, the judgment of the post-conviction court is vacated, and the
case is remanded to the post-conviction court for proceedings consistent with this opinion.
This opinion and judgment ends this appeal.
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JAMES CURWOOD WITT, JR., JUDGE
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