Bobby Dewayne Presley v. State of Tennessee - Dissent
M2015-00520-CCA-R3-PC
Tenn. Crim. App.Mar 3, 2017Background
- Petitioner convicted in 2011; appellate counsel voluntarily dismissed his direct appeal and advised pursuing a post-conviction petition alleging trial counsel ineffective because the trial transcript/evidence record was unavailable.
- Petitioner’s mother, using a standard form durable power of attorney, signed a one-sentence letter requesting dismissal of the appeal and later signed a handwritten waiver allowing appellate counsel to continue despite an apparent conflict.
- Post-conviction court denied relief, finding trial counsel was not ineffective and criticizing appellate counsel for failing to exhaust Rule 24 procedures to reconstruct the record.
- On appeal, the State noted the post-conviction court never addressed whether the Petitioner knowingly and voluntarily waived appellate counsel’s conflict; the case was remanded for that issue.
- At the remand hearing the Petitioner was absent; appellate counsel and the post-conviction court proceeded based on appellate counsel’s statement that the Petitioner had directed him to deal with the mother by virtue of the power of attorney.
- Judge Norma McGee Ogle (dissent) questioned whether the mother had authority to dismiss the direct appeal or waive counsel’s conflict for an apparently competent adult and would remand for a hearing on those issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Petitioner’s mother, via durable power of attorney, could validly dismiss the Petitioner’s direct appeal | Mother (through counsel) acted with authority under the power of attorney to dismiss appeal and pursue post-conviction relief | Petitioner’s rights to appeal and to conflict-free counsel are personal and too fundamental to be delegated by a general POA | Dissent: Questioned mother’s authority; would remand for a hearing to determine authority and whether Petitioner personally waived rights |
| Whether appellate counsel’s conflict was knowingly and voluntarily waived | Waiver signed by mother on Petitioner’s behalf satisfied requirement to proceed | State argued post-conviction court failed to determine if the waiver was knowing/voluntary by Petitioner himself; Frazier suggests remand may be required | Dissent: Remand needed to resolve whether waiver was valid for an apparently competent petitioner |
| Adequacy of appellate counsel’s representation in reconstructing the record under Tenn. R. App. P. 24 | Appellate counsel dismissed appeal as tactical given lack of transcript/data and limited client funds | Post-conviction court and State criticized counsel for not exhausting Rule 24 reconstruction procedures or pursuing experts/contacts | Post-conviction court faulted appellate counsel; dissent highlights counsel’s failures but focuses on delegation/waiver issues and remand for further factfinding |
| Whether the post-conviction court erred by proceeding without the Petitioner present | Proceeding relied on mother’s POA and written waiver to avoid delay and address time limits | State argued absence of Petitioner made the waiver/authority issues unresolved | Dissent: Because record lacks evidence of incompetence/consent, remand required to resolve why Petitioner did not personally waive his rights |
Key Cases Cited
- Serrano v. State, 133 S.W.3d 599 (Tenn. 2004) (a defendant has one level of appellate review and waivers of appeal must clearly reflect awareness and voluntariness)
- Collins v. State, 670 S.W.2d 219 (Tenn. 1984) (purported waivers of appeal are to be carefully scrutinized)
- Carter v. State, 102 S.W.3d 113 (Tenn. Crim. App. 2002) (waiver of appeal must clearly reflect awareness and voluntariness)
- Frazier v. State, 303 S.W.3d 674 (Tenn. 2010) (apparent conflicts may require remand to determine whether waiver was knowing and voluntary)
- Holton v. State, 201 S.W.3d 626 (Tenn. 2006) (a "next friend" may act for an incompetent person, including pursuing appeals)
- Burford v. State, 845 S.W.2d 204 (Tenn. 1992) (post-conviction relief is statutory and may be waived)
- United States v. Cunningham, 292 F.3d 115 (2d Cir. 2002) (federal discussion on scrutiny of appellate-waiver practices)
- Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306 (Ky. 2015) (refused to permit delegation by general power of attorney of fundamental constitutional rights absent clear, knowing, voluntary waiver)