Roy Thomas Rogers, Jr. v. State of Tennessee

The Petitioner, Roy Thomas Rogers, Jr., was convicted by a Gibson County jury of initiating the manufacture of methamphetamine, promoting the manufacture of methamphetamine, possessing drug paraphernalia, and criminal impersonation, see T.C.A. §§ 39-16-301(a)(1); 39-17-425(a)(1), -433(a)(1), -435(a), for which he received an effective sentence of twelve years. Thereafter, Petitioner’s trial counsel filed an untimely motion for new trial, which was denied, and an untimely notice of appeal. On direct appeal, this court held that the Petitioner had waived his issue regarding the admissibility of certain evidence because trial counsel failed to file a timely motion for new trial and then dismissed the appeal without addressing the insufficiency of the evidence claim because the interest of justice did not warrant waiver of the requirement for timely filing of a notice of appeal. State v. Roy Thomas Rogers, No. W2015-00988-CCA-R3-CD, 2016 WL 1045352, at *2 (Tenn. Crim. App. Mar. 15, 2016). The Petitioner, following his unsuccessful direct appeal, then filed a petition for postconviction relief, alleging that trial counsel had provided ineffective assistance in failing to file a timely motion for new trial and notice of appeal and in failing to challenge the admission of illegal evidence at trial. After conducting a non-evidentiary hearing, the post-conviction court entered a written order granting the Petitioner a delayed appeal and giving the Petitioner “30 days from the entry of this 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.” The Petitioner subsequently filed a timely notice of appeal to this court, arguing (1) the trial court erred in admitting certain evidence at trial and (2) the evidence is insufficient to support his convictions. After conducting a thorough review, we conclude that the trial court did not follow the post-conviction procedures prior to granting the Petitioner a delayed appeal. Accordingly, we reverse and vacate the order granting a delayed appeal and remand the case to the post-conviction court for further proceedings consistent with this opinion. We also remand the case for entry of a corrected judgment in Count 5 reflecting an indicted and conviction offense of criminal impersonation in violation of Tennessee Code Annotated section 39-16-301(a)(1).