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Posted by: Stacey Shrader Joslin on May 21, 2014

Head Comment: With Dissenting Opinion

Court: TN Supreme Court

Attorneys 1:

Joseph Liddell Kirk, Knoxville, Tennessee, for the appellant, Guadalupe Arroyo.

Attorneys 2:

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.

Judge(s): LEE

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.