The Tennessee Supreme Court has denied a request by a defendant seeking a third appeal of his sentence in a drunk driving case in which two people were killed in Knoxville in 2000. Guadalupe Arroyo petitioned the court for post-conviction relief, contending his trial attorney was ineffective by depriving him of his right to appeal a third sentencing order.
Mr. Arroyo pleaded guilty in 2002 to two counts of vehicular homicide after he drove drunk and killed two people in an automobile accident in Knoxville. The trial judge sentenced him to two consecutive 12-year terms for an effective sentence of 24 years. Mr. Arroyo’s trial counsel twice appealed Mr. Arroyo’s sentence to the Tennessee Court of Criminal Appeals, which each time sent the case back to the trial court to provide reasons for the consecutive sentencing. However, Mr. Arroyo’s trial counsel did not file a third appeal.
Mr. Arroyo filed a petition under the Tennessee Post-Conviction Procedure Act, asserting his trial counsel was ineffective and never filed a written waiver of appeal as required under the Tennessee Rules of Criminal Procedure, and did not consult with him about a third appeal. However, trial counsel testified at the post-conviction hearing that he spoke to Mr. Arroyo about the futility of filing a third appeal, and Mr. Arroyo did not object. The trial court found trial counsel more credible than Mr. Arroyo and denied post-conviction relief. The Court of Criminal Appeals agreed.
The Tennessee Supreme Court also denied Mr. Arroyo post-conviction relief. Justice Sharon G. Lee explained in the majority opinion that Mr. Arroyo’s trial counsel should have filed a written waiver of appeal, but that the failure to file a written waiver is not by itself deficient performance. Justice Lee determined that Mr. Arroyo failed to prove by clear and convincing evidence that he did not know of his right to appeal or otherwise did not waive that right.
Chief Justice Gary R. Wade wrote a dissenting opinion, finding that Tennessee Rule of Criminal Procedure 37(d)(2) required Mr. Arroyo’s trial counsel to file a written waiver of appeal. Chief Justice Wade further determined that trial counsel’s statement that Mr. Arroyo “pretty much” or “more or less” agreed to waive an appeal did not qualify as “clear and unambiguous evidence” of waiver. Chief Justice Wade would have granted Mr. Arroyo a delayed appeal under the Post-Conviction Procedure Act.