State of Tennessee v. Roy Rogers, Jr.

04/23/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 3, 2020

STATE OF TENNESSEE v. ROY ROGERS, JR.

Appeal from the Circuit Court for Gibson County

No. 9449 Clayburn Peeples, Judge

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No. W2019-00977-CCA-R3-CD

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For the third time in this Court, Defendant, Roy Rogers, Jr., challenges his convictions

for initiating the manufacturer of methamphetamine, promoting the manufacture of

methamphetamine, possession of drug paraphernalia, and criminal impersonation, for

which he received a total effective sentence of twelve years. See State v. Roy Rogers, Jr.,

No. W2015-00988-CCA-R3-CD, 2016 WL 1045352, at *1-2 (Tenn. Crim. App. Mar. 15,

2016) (“Rogers I”), no perm. app. filed; Roy Rogers, Jr. v. State, No. W2017-01939-

CCA-R3-PC, 2018 WL 6075655, at *1 (Tenn. Crim. App. Nov. 20, 2018) (“Rogers II”),

no perm. app. filed. Defendant appeals after the post-conviction court denied his motion

for new trial after remand. Because the post-conviction court failed to follow the

directive of this Court on remand after Rogers II, we reverse the judgment of that court

and remand the case with the same instructions given by this Court in Rogers II, for the

post-conviction court to: (1) conduct an evidentiary hearing on Defendant’s post-

conviction petition; (2) determine whether Defendant is entitled to a delayed appeal; and

(3) if the post-conviction court holds the hearing and determines Defendant is entitled to

a delayed appeal, enter an order that (a) allows Defendant to file a new motion for new

trial, and (b) stays the post-conviction proceedings on Defendant’s remaining claims until

the resolution of the delayed appeal.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and

Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR. and J. ROSS DYER, JJ., joined.

Jeffrey J. Mueller, Trenton, Tennessee, for the appellant, Roy Thomas Rogers.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant

Attorney General; Gary Brown, District Attorney General; and Jason Scott, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

In 2013, Defendant was arrested after two agents of the West Tennessee Drug

Task Force followed up on information that Defendant was manufacturing

methamphetamine at a residence in Humboldt. Rogers I, 2016 WL 1045352, at *1. After

a jury trial, Defendant was convicted of initiating the manufacturer of methamphetamine,

promoting the manufacture of methamphetamine, possession of drug paraphernalia, and

criminal impersonation, for which he received a total effective sentence of twelve years.

Id. at *2. The judgments of conviction were entered on March 18, 2015. Id. Defendant

filed a motion for new trial on April 21, 2015, several days after the expiration of the

thirty-day time period for filling such a motion. See Tenn. R. Crim. P. 33. The motion

for new trial challenged the admissibility of evidence at trial, the trial court’s failure to

suppress certain evidence at trial, the sufficiency of the evidence, and the trial court’s

failure to act as thirteenth juror. On May 20, 2015, the trial court denied the motion for

new trial by written order. Defendant filed a notice of appeal on May 27, 2015. On

direct appeal to this Court, we noted that both Defendant’s motion for new trial and

notice of appeal were untimely and that he “offered no excuse for either delay and has not

sought a waiver from this [C]ourt for his untimely notice of appeal,” remaining silent

even after the State pointed out the deficiency. Rogers I, 2016 WL 1045352, at *2. As a

result, this Court dismissed the appeal. Id. at *3.

On October 27, 2016, Defendant sought post-conviction relief, arguing that trial

counsel was ineffective for failing to file a timely motion for new trial and notice of

appeal and for failing to challenge the admissibility of illegal evidence at trial. Rogers II,

2018 WL 6075655, at *1. About a year after the petition was filed, the post-conviction

court held a “non-evidentiary hearing” that consisted of argument from counsel but no

proof. Id. at *2. On September 11, 2017, the post-conviction court entered a written

order granting Defendant a delayed appeal and giving Defendant “30 days from the entry

of th[e] order to file a notice of appeal with the Tennessee Court of Criminal Appeals

based on the Motion for New Trial previously filed in this cause.” Id. at *2. Defendant

filed a timely notice of appeal. Id.

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On appeal, this Court acknowledged the issues raised in the petition for post-

conviction relief and noted that the post-conviction court “never conducted an

evidentiary hearing on the issues raised in the post-conviction petition” (emphasis added)

as required by Tennessee Code Annotated section 40-30-109(a) and Tennessee Supreme

Court Rule 28, section 8(B). Rogers II, 2018 WL 6075655, at *3. Moreover, the post-

conviction court failed to stay the post-conviction proceedings on Defendant’s remaining

claim, whether trial counsel was ineffective in failing to challenge the admission of

illegal evidence at trial, pending the final disposition of the delayed appeal. Id. Finally,

by limiting Defendant to the issues as presented in his original motion for new trial, this

Court found that the post-conviction court deprived Defendant the opportunity to file a

proper motion for new trial. Id. As this Court explained, a post-conviction court must

follow the procedures outlined in Tennessee Code Annotated section 40-30-113 when

granting a delayed appeal:

(a) When the trial judge conducting a hearing pursuant to this part

(emphasis not in original) finds that the petitioner was denied the right to an

appeal from the original conviction in violation of the Constitution of the

United States or the Constitution of Tennessee and that there is an adequate

record of the original trial proceeding available for a review, the judge can:

(1) If a transcript was filed, grant a delayed appeal;

(2) If, in the original proceedings, a motion for a new trial was filed and

overruled but no transcript was filed, authorize the filing of the transcript in

the convicting court; or

(3) If no motion for a new trial was filed in the original proceeding,

authorize a motion to be made before the original trial court within thirty

(30) days. The motion shall be disposed of by the original trial court as if

the motion had been filed under authority of Rule 59 of the Rules of Civil

Procedure.

(b) An order granting proceedings for a delayed appeal shall be deemed the

final judgment for purposes of review. If either party does appeal, the time

limits provided in this section shall be computed from the date the clerk of

the trial court receives the order of the appellate court determining the

appeal.

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(c) The judge of the court which sentenced a prisoner who has sought and

obtained relief from that sentence by any procedure in a federal court is

likewise empowered to grant the relief provided in this section.

Because this Court determined that the post-conviction court failed to

follow the proper procedure, this Court reversed and vacated the order granting the

delayed appeal and remanded the matter to the post-conviction court with

instructions to conduct a full evidentiary hearing on the issues raised by Defendant

in the post-conviction petition. Rogers II, 2018 WL 6075655, at *4.

In Rogers II, this Court instructed the post-conviction court that if it

“determines, after conducting the required evidentiary hearing, that Defendant was

entitled to a delayed appeal, it should state in its order granting the delayed appeal

that the Petitioner is authorized to file a proper motion for new trial, submitting

any and all claims of error at his January 2015 trial, within thirty days of entry of

its order.” Id. at *5. This Court also directed the post-conviction court to include

in any order granting a delayed appeal that the court is also staying the post-

conviction proceedings on any remaining claim or claims, pending final

disposition of the delayed appeal. Id.

On remand, the post-conviction court entered an order on January 10, 2019. In

that order, the post-conviction court determined that “from a previous hearing of the

issues and agreement of the parties . . . that the post-conviction petition should be

granted” and pursuant to Tennessee Code Annotated section 40-30-113(a)(3) Defendant

“should be granted a delayed appeal and opportunity to file a motion for new trial.” One

month after entry of this order, counsel for Defendant filed a notice that no amendment to

the post-conviction petition would be filed. Defendant also filed a motion for new trial

on February 11, 2019. In the motion, Defendant argued that the trial court: (1) should

have granted a motion for judgment of acquittal; (2) improperly denied Defendant’s

motion to deny admission of evidence located outside the residence; (3) failed to insure

that certified copies of prior convictions were admitted to establish Defendant’s

sentencing range; and (4) failed to fulfill its role as thirteenth juror.

On April 29, 2019, the post-conviction court held a hearing on motion for new

trial. At the hearing, counsel for Defendant explained the issues raised in the motion for

new trial after which the following exchange took place:

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[Post-conviction Court]: Okay. What did the Court of Criminal Appeals say

about this?

[Counsel for Defendant]: Nothing yet.

[Counsel for State]: This is the one where the Notice of Appeal was

untimely, so they have not addressed any issues. They only said it’s not

timely.

[Counsel for Defendant]: And then they sent it back because they wanted a

hearing on the new Motion for New Trial which we all overlooked.

[Counsel for State]: He’s essentially - - he’s going to get a direct appeal

now from the original trial.

[Post-conviction Court]: That’s what I - - that’s what I thought. Okay.

[Counsel for State]: Yes, sir.

[Post-conviction Court]: Okay. Denied.

The post-conviction court, acting as the trial court, entered an order denying the

motion for new trial on May 8, 2019. Defendant filed a timely notice of appeal on June

3, 2019. On appeal, Defendant raises the same issues he presented in the motion for new

trial filed in February of 2019.

Analysis

On remand, the post-conviction court failed to follow the procedure prescribed by

this Court in Rogers II. As a result, we are constrained to reverse and remand the

judgment of the post-conviction court yet again. On remand, we repeat the same

instructions given by this Court in Rogers II, for the post-conviction court to follow the

procedure set forth in Tennessee Code Annotated section 40-30-113 with regard to

delayed appeals. Specifically, the post-conviction court must: (1) conduct a full

evidentiary hearing on Defendant’s post-conviction petition; (2) determine whether

Defendant is entitled to a delayed appeal; and (3) if the post-conviction court holds the

hearing and determines Defendant is entitled to a delayed appeal, the post-conviction

court must enter an order that (a) allows Defendant to file a new motion for new trial and

(b) stays the post-conviction proceedings on Defendant’s remaining claims until the

resolution of the delayed appeal.

To be clear, instruction (1) above requires the post-conviction court to conduct a

full evidentiary hearing on the issues raised in Defendant’s post-conviction petition. This

required hearing, as the Court in Rogers II points out, was not conducted then, and

unfortunately, remains not conducted in what now is Rogers III.

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Conclusion

For the foregoing reasons, the judgment of the post-conviction court is reversed

and remanded.

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TIMOTHY L. EASTER, JUDGE

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