Supreme Court Denies Relief To Defendant Seeking Third Appeal

Wednesday, May 21, 2014

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.


Hixson Dentist Awarded Tennessee Dental Association Fellowship

Dr. Michael R. Johnson, a Hixson dentist, received the prestigious Tennessee Dental Association (TDA) Fellowship Award during the recent Music City Dental Conference held in Nashville, the 149th annual meeting of the TDA. The Fellowship Award is presented to no more than twelve deserving Tennessee dentists each year who make noteworthy contributions of their time and talent toward ... (click for more)

James Appointed Chief Medical Officer Of BlueCare Tennessee

Dr. Jeanne James has been named vice president and chief medical officer of BlueCare Tennessee, the Medicaid managed care subsidiary of BlueCross BlueShield of Tennessee. Dr. James will oversee and guide medical policy for BlueCare Tennessee, and provide clinical direction on programs to improve health for members. “We are fortunate to have someone with Dr. James’ expertise ... (click for more)

CBL & Associates Stockholder Accuses Chattanooga-Based Mall Owner Of Security Fraud

A stockholder of CBL & Associates is suing the Chattanooga-based mall owner in Chattanooga Federal Court, claiming its officials artificially inflated the value of the company's stock. Tommy French, of Baton Rouge, La., brought the action against CBL, President Stephen Lebovitz and Vice President Farzana Mitchell. He claims that CBL officials made false and misleading ... (click for more)

Carmody Found Guilty Of First-Degree Felony Murder; Sentenced To Life In Prison

Patrick Carmody was sentenced to life in prison after being found guilty of first-degree felony murder and especially aggravated robbery in Judge Barry Steelman’s courtroom on Friday. He was charged with the slaying of 21-year-old Chance LeCroy on Sept. 9, 2010. The state’s account of the incident claimed that Carmody, Ronald Pittman, and Billy Bob Partin traveled ... (click for more)

Case Handled Like Any Other? - And Response

It is interesting that Chief Fletcher would deem the handling of the Mayor's encounter as typical or normal. Is the Chief asking the public to believe that all misdemeanor domestic violence arrests include a 4-hour taped interrogation, and delayed reporting after a visit to the Chief’s house. Of course, we believe that Chief Fletcher. April Eidson * * *  I ... (click for more)

Roy Exum: The Best Speech This Year

Just 24 hours after Donovan Livingston gave The Student’s Speech at Harvard University’s Graduate School of Education convocation on Wednesday, it had been viewed over 3 million times and shared 75,000 times on Facebook. It is already considered, far and away, as the freshest view on race and education in ages and its viral journey is burning across the Internet. His talk was ... (click for more)