Guadalupe Arroyo v. State of Tennessee , 434 S.W.3d 555 ( 2014 )

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 8, 2014
GUADALUPE ARROYO v. STATE OF TENNESSEE
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Knox County
No. 84012 Bob R. McGee, Judge
No. E2012-02703-SC-R11-PC - Filed May 21, 2014
The defendant pleaded guilty to two counts of vehicular homicide. The trial court sentenced
the defendant to two consecutive twelve-year terms for an effective sentence of twenty-four
years. The defendant twice appealed the sentence to the Court of Criminal Appeals, which
twice remanded the case to the trial court for resentencing. Each time, the trial court imposed
a twenty-four-year sentence. The defendant did not appeal the third sentencing order. Later,
the defendant filed a petition for post-conviction relief, alleging that his trial counsel
provided ineffective assistance of counsel by failing to appeal the third sentencing order. At
the post-conviction hearing, trial counsel testified that he and the defendant discussed the
futility of a third appeal and the defendant agreed that no appeal would be filed. The
defendant denied that he and his trial counsel discussed a third appeal. Trial counsel did not
file a Tenn. R. Crim. P. 37(d)(2) waiver of appeal. The post-conviction court found trial
counsel to be more credible than the defendant. Based on that finding, the trial court
dismissed the petition, ruling that the defendant knew of his right to appeal and waived that
right. The Court of Criminal Appeals affirmed. We hold that the defendant had the burden
of proving by clear and convincing evidence that he did not know of his right to appeal or
that he otherwise did not waive that right. His trial counsel’s failure to file a written waiver
of appeal was not per se deficient performance, but was a fact properly considered by the trial
court on the issue of whether trial counsel rendered effective representation. Based on the
credibility determinations made by the post-conviction court, we hold that the defendant
failed to prove by clear and convincing evidence his allegations of ineffective
representation. The judgments of the trial court and the Court of Criminal Appeals are
affirmed.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
Appeals Affirmed
S HARON G. L EE, J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C ORNELIA A. C LARK, and W ILLIAM C. K OCH, J R., JJ., joined. G ARY R. W ADE, C.J., filed a
separate dissenting opinion.
Joseph Liddell Kirk, Knoxville, Tennessee, for the appellant, Guadalupe Arroyo.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Randall E. Nichols, District Attorney General; and Philip Morton, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
FACTS
On October 31, 2000, Mr. Arroyo drove through two red lights and crashed into
another vehicle at an intersection in downtown Knoxville. The driver and passenger in the
other vehicle were killed in the collision. Mr. Arroyo admitted to drinking ten beers that day
and had a blood alcohol level of 0.18 percent. In January 2002, Mr. Arroyo pleaded guilty
to two counts of vehicular homicide. The trial court sentenced him to two consecutive
twelve-year terms for a total effective sentence of twenty-four years.
Mr. Arroyo’s twenty-four-year sentence led to a series of appeals. In Mr. Arroyo’s
first appeal, his appointed counsel (“Trial Counsel”) argued that the trial court erred by
imposing the maximum sentence for each conviction and by ordering consecutive
sentences. On March 27, 2003, the Court of Criminal Appeals remanded the case for
resentencing after finding that the trial court misapplied certain enhancement factors and
failed to consider the factors required by State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995),
before imposing consecutive sentencing. State v. Guadalupe Arroyo, No. E2002-00639-
CCA-R3-CD, 2003 WL 1563209 (Tenn. Crim. App. Mar. 27, 2003).
On remand, the trial court held a second sentencing hearing and again imposed an
effective sentence of twenty-four years. Trial Counsel filed a second appeal for Mr.
Arroyo. On August 30, 2004, the Court of Criminal Appeals remanded the case to the trial
court for resentencing because the court had again failed to make specific findings of fact
based on the Wilkerson factors. State v. Guadalupe Arroyo, No. E2003-02355-CCA-R3-CD,
2004 WL 1924033 (Tenn. Crim. App. Aug. 30, 2004).
After the second remand, there was no sentencing hearing. On January 21, 2005, Trial
Counsel wrote the trial judge a letter, asking him to consider ordering concurrent rather than
consecutive sentences. On February 24, 2005, the trial court issued an order again imposing
consecutive sentences for an effective sentence of twenty-four years. The trial court found
that consecutive sentencing was reasonably related to the severity of the offenses and
necessary to protect the public because Mr. Arroyo had engaged daily in underage drinking
and driving without a license and was in the country illegally.
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No appeal was filed from the third sentencing order. On April 4, 2006, Mr. Arroyo
filed a pro se post-conviction petition alleging that Trial Counsel had provided ineffective
assistance by failing to appeal the third sentencing order. The post-conviction court
summarily denied the petition, finding that it was barred by the one-year statute of
limitations. Mr. Arroyo appealed, and the Court of Criminal Appeals reversed and remanded
the case to the post-conviction court, finding that it had failed to consider the facts and
allegations presented in the petition. Guadalupe Arroyo v. State, No. E2006-01037-CCA-
R3-PC, 2007 WL 3144999 (Tenn. Crim. App. Oct. 29, 2007).
On January 23, 2008, the post-conviction court appointed counsel for Mr. Arroyo and
gave counsel time to amend the original petition. Counsel failed to timely amend the
petition, and the post-conviction court dismissed the case. Mr. Arroyo appealed, and the
Court of Criminal Appeals reversed and remanded the case to the post-conviction court to
allow any necessary amendments to the post-conviction petition and for an evidentiary
hearing. Guadalupe Arroyo v. State, No. E2008-01220-CCA-R3-PC, 2009 WL 2503152
(Tenn. Crim. App. Aug. 17, 2009). Following the second remand, Mr. Arroyo, through
counsel, filed an amended petition alleging that he was denied effective assistance of counsel
because Trial Counsel failed to appeal the third sentencing order.
On October 11, 2012, the post-conviction court conducted an evidentiary hearing. Mr.
Arroyo testified that Trial Counsel did not communicate with him after the second
appeal. Mr. Arroyo stated that he did not tell Trial Counsel not to appeal his case, and further
testified that he was unaware of Trial Counsel’s letter to the trial judge and received no
correspondence from Trial Counsel regarding the appeal.
Trial Counsel, who had been practicing law for thirty-seven years, testified that he met
with Mr. Arroyo in the Knox County courthouse after the second sentencing hearing. Trial
Counsel said, “I told him, I said, we have appealed this twice. You have the right to appeal
again, but I said I really don’t believe that you would get anywhere with it.” According to
Trial Counsel, Mr. Arroyo “more or less assented” and “pretty much agreed.” Trial Counsel
testified that Mr. Arroyo did not ask him not to appeal, but that he “more or less agreed that
we wouldn’t get anywhere after two appeals.” Trial Counsel neither asked Mr. Arroyo to
sign a waiver of appeal nor did he speak to Mr. Arroyo after the trial court issued the third
sentencing order. Trial Counsel explained that he sent Mr. Arroyo a letter confirming that
there would be no further appeal but did not retain a copy of the letter as it was his office
policy to destroy client files after five years. He received no reply from Mr. Arroyo.
On November 29, 2012, the post-conviction court denied Mr. Arroyo post-conviction
relief, ruling that he had waived his right to appeal the third sentencing order and failed to
show by clear and convincing evidence that Trial Counsel was ineffective. The post-
conviction court, finding the testimony of Trial Counsel more credible than the testimony of
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Mr. Arroyo, concluded that Trial Counsel and Mr. Arroyo discussed the chances of success
on a third appeal and Mr. Arroyo decided not to appeal.
Mr. Arroyo appealed the dismissal of his post-conviction petition. The Court of
Criminal Appeals held that Trial Counsel’s failure to file a written waiver of appeal as
required by Tenn. R. Crim. P. 37(d)(2) did not violate Mr. Arroyo’s right to effective
assistance of counsel. The Court of Criminal Appeals, deferring to the credibility
determinations of the post-conviction court, affirmed the decision of the post-conviction
court. Guadalupe Arroyo v. State, No. E2012-02703-CCA-R3-PC, 2013 WL 3486933
(Tenn. Crim. App. July 10, 2013). We granted Mr. Arroyo’s Tenn. R. App. P. 11 application.
ANALYSIS
The Tennessee Post-Conviction Procedure Act provides that relief “shall be granted
when the conviction or sentence is void or voidable because of the abridgment of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103 (2012). In a post-conviction hearing, the petitioner has the burden
of proving the allegations of fact by clear and convincing evidence. Tenn. Code Ann. § 40-
30-110(f) (2012). “Evidence is clear and convincing when there is no serious or substantial
doubt about the correctness of the conclusions drawn from the evidence.” Grindstaff v. State,
297 S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn.
Crim. App. 1998)). In order for evidence to be clear and convincing, it must eliminate any
“serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” State v. Sexton, 368 S.W.3d 371, 404 (Tenn. 2012). Whether evidence is clear
and convincing is a question of law that courts review de novo without a presumption of
correctness. Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 410-11
(Tenn. 2013). “The reviewing court presumes the trial court's underlying factual findings are
correct (unless the evidence preponderates against them), and then determines de novo
whether these facts establish [ineffective assistance of counsel] by clear and convincing
evidence.” Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 515 n.69 (Tenn. 2013). An
ineffective assistance of counsel claim is a mixed question of law and fact. State v. Burns,
6 S.W.3d 453, 461 (Tenn. 1999). A post-conviction court’s findings of fact are reviewed de
novo with a presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)
(citing Tenn. R. App. P. 13(d)). A post-conviction court’s conclusions of law are reviewed
under a pure de novo standard with no presumption of correctness. Id. Questions concerning
the credibility of witnesses and the weight and value of their testimony are the province of
trial judges. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).
The Sixth Amendment of the United States Constitution and Article I, section 9 of the
Tennessee Constitution guarantee defendants the right to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686-87 (1984); Baxter v. Rose, 523
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S.W.2d 930, 936 (Tenn. 1975). A defendant has the right to effective assistance of counsel
at trial and on appeal. Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993). “There is no
constitutional right to appeal, but where appellate review is provided by statute, the
proceedings must comport with constitutional standards.” Serrano v. State, 133 S.W.3d 599,
604 (Tenn. 2004). Because a defendant has a statutory right to appeal, an attorney has an
obligation to consult with the defendant about an appeal following a conviction. Tenn. Code
Ann. § 40-14-203 (2012); see also Collins v. State, 670 S.W.2d 219, 221 (Tenn. 1984). After
an attorney consults with a defendant about an appeal, the attorney should follow the
defendant’s directives. If the defendant wishes to appeal, the attorney should file a notice
of appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (noting that “a lawyer who
disregards specific instructions from the defendant about whether to file a notice of appeal
acts in a manner that is professionally unreasonable”).
When a defendant chooses to waive the right to appeal, Tenn. R. Crim. P. 37(d)(2)
requires the defendant’s attorney to file a written waiver of appeal.1 The Rule provides:
If an indigent or nonindigent defendant who has the right to appeal a
conviction chooses to waive the appeal, counsel for the defendant shall file
with the clerk, during the time within which the notice of appeal could have
been filed, a written waiver of appeal, which must:
(A) clearly reflect that the defendant is aware of the right to appeal and
voluntarily waives it; and
(B) be signed by the defendant and the defendant’s counsel of record.
Compliance with Rule 37(d)(2) helps to ensure that a defendant’s waiver of the right to
appeal is knowing and voluntary. Jenkins v. State, No. 01C01-9405-CR-00156, 1995 WL
218500, at *3 (Tenn. Crim. App. April 13, 1995) (citing Collins, 670 S.W.2d at
221). Compliance also minimizes any uncertainty or confusion as to whether the defendant
was advised of his right to appeal and chose to waive it – such as in this case. Failure to
comply with Rule 37(d)(2) is not per se deficient performance. Rainer v. State, 958 S.W.2d
356, 357 (Tenn. Crim. App. 1997); Henry v. State, No. E2009-01082-CCA-R3-PC, 2010 WL
3919201, at *5 (Tenn. Crim. App. Oct. 7, 2010); Greer v. State, No. M2003-03057-CCA-R3-
1
Rule 37(d) applies to a judgment on a “guilty verdict.” The issue of whether Rule 37(d)(2) applies
to the waiver of an appeal following a remand from the Court of Criminal Appeals for resentencing has not
been raised as an issue, and therefore, we do not address it.
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PC, 2005 WL 468299, at *3 (Tenn. Crim. App. Feb. 23, 2005).2 However, attorneys are
strongly advised to comply with the Rule.
Following a conviction or imposition of a sentence, an attorney has an obligation to
promptly advise the defendant of the court’s decision if the ruling is not made in the
defendant’s presence. Then the attorney must advise the defendant of the right to appeal and
discuss the likelihood of success so that the defendant can make an informed decision about
whether to pursue or waive an appeal. If the defendant decides to appeal, the attorney must
file the notice of appeal3 or promptly withdraw.4 If the defendant chooses not to appeal, then
the attorney and the defendant should sign a Tenn. R. Crim. P. 37(d)(2) written waiver of
appeal, which the attorney should file with the clerk of the trial court in accordance with
Tenn. R. App. P. 4(a). See 11 David Louis Raybin, Tennessee Practice: Criminal Practice
and Procedure § 33.37, at 509-10 (2008).
The issue before us is whether Trial Counsel’s failure to appeal was ineffective
representation. To prove his claim, Mr. Arroyo had to satisfy a two-part test. First, he had
to show that Trial Counsel’s performance was deficient. Strickland, 466 U.S. at
687. Deficiency means that the attorney performed “below the range of competence
demanded of attorneys in criminal cases.” Baxter, 523 S.W.2d at 936. Second, Mr. Arroyo
had to show that the deficient performance prejudiced his defense. Strickland, 466 U.S. at
687. Both deficiency and prejudice must be shown to establish a viable claim of ineffective
assistance of counsel. Garcia v. State, _ S.W.3d _, 2013 WL 6795210, at *6 (Tenn. 2013);
Henley, 960 S.W.2d at 579.
The Court of Criminal Appeals has held that in the absence of a filed waiver of
appeal, the record must “clearly and unambiguously” show that the defendant knew of his
or her right to appeal and intended to waive that right. Hanke v. State, W2009-02659-CCA-
2
Other jurisdictions have recognized that failure to follow a rule of procedure is not per se deficient
performance. Lafferty v. State, 175 P.3d 530, 538 (Utah 2007) (finding no deficiency for counsel’s failure
to comply with Utah R. Crim. P. 8 regarding qualifications for counsel in capital cases); Burke v. State, 925
A.2d 890, 893 (R.I. 2007) (finding that an attorney’s failure to file a motion for reduced sentence under
Rhode Island Super. R. Crim. P. Rule 35 is not per se deficient); People v. Hickey, 792 N.E.2d 232, 259 (Ill.
2001) (finding that violations of criminal rules of procedure do not necessarily warrant post-conviction relief,
as safeguards in rules of procedure are broader than the constitutional rights they protect).
3
Tenn. R. Crim. P. 37(d)(1) provides: “If an appeal is sought, the defendant in person or by counsel
shall file a timely notice of appeal with the clerk . . .”
4
The Advisory Commission Comments to Tenn. R. Crim. P. 37 explain: “Counsel considering
withdrawal or termination of representation should consult Tenn. Sup. Ct. R. 14 (procedure for withdrawal
in Court of Appeals and Court of Criminal Appeals) and Tenn. Sup. Ct. R. 8, RPC § 1.16 (declining and
terminating representation).”
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R3-PC, 2011 WL 2476031, at *6 (Tenn. Crim. App. June 22, 2011); Tears v. State, No.
M2003-02291-CCA-R3-PC, 2004 WL 2544677, at *5 (Tenn. Crim. App. Nov. 10, 2004);
Taylor v. State, W2000-01991-CCA-R3-PC, 2001 WL 468653, at *5 (Tenn. Crim. App. May
3, 2004); Purdy v. State, 02C01-9807-CC-00211, 1999 WL 188177, at *3 (Tenn. Crim. App.
April 7, 1999); Hendrix v. State, No. 01C01-9708-CR-00343, 1998 WL 707802, at *2 (Tenn.
Crim. App. Oct. 9, 1998); Harrill v. State, No. 03C01-9605-CC-00185, 1997 WL 332040,
at *4 (Tenn. Crim. App. June 18, 1997); Jenkins v. State, 01C01-9405-CR-00156, 1995 WL
218500, *3 (Tenn. Crim. App. April 13, 1995). These cases are not consistent with Tenn.
Code Ann. § 40-30-110(f), which requires that a defendant prove his or her factual
allegations by clear and convincing evidence. To be clear, when a defendant’s counsel fails
to file a written waiver of appeal, the defendant does not get a free pass or a lower standard
of proof; the burden remains on the defendant to establish factual allegations by clear and
convincing evidence.
Turning now to the proof in this case, Mr. Arroyo had the burden to show by clear and
convincing evidence that he did not know of the right to appeal and did not waive that
right. First, we hold that Mr. Arroyo failed to prove by clear and convincing evidence that
he did not know of his right to appeal. Mr. Arroyo had twice appealed his sentence to the
Court of Criminal Appeals and, therefore, knew he had a right to appeal. Second, we hold
that Mr. Arroyo failed to prove by clear and convincing evidence that he did not waive his
right to appeal. The post-conviction court accredited the testimony of Trial Counsel that he
consulted with Mr. Arroyo about a third appeal and that Mr. Arroyo agreed that another
appeal would be futile. We defer to the credibility determinations of the trial court, which
had the opportunity to hear the testimony of both Mr. Arroyo and Trial Counsel. These
findings of fact come to us with a presumption of correctness. Nichols v. State, 90 S.W.3d
576, 586 (Tenn. 2002) (citing Burns, 6 S.W.3d at 461). Trial Counsel’s failure to file a
written waiver of appeal is a fact that the trial court properly considered, but that fact, in and
of itself, is insufficient to show deficient performance. Because Mr. Arroyo did not prove
that Trial Counsel’s performance was deficient, we need not address the prejudice
prong. Zagorski v. State, 983 S.W.2d 654, 659 (Tenn. 1998).
CONCLUSION
We affirm the judgment of the Court of Criminal Appeals dismissing Mr. Arroyo’s
petition for post-conviction relief. Because Mr. Arroyo is indigent, costs of this appeal are
taxed to the State of Tennessee, for which execution may issue if necessary.
_________________________________
SHARON G. LEE, JUSTICE
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