A jury found the
petitioner guilty of first-degree murder on December 5,
1991, and a
trial court subsequently sentenced the petitioner to life imprisonment.
The
petitioner
timely appealed to this Court, which affirmed the petitioner's convictions.
See
State v. Kelley,
868 S.W.2d 733 (Tenn. Crim. App. 1993). The petitioner's counsel,
Mr.
Randy Rogers,
failed to file an application to appeal by permission to the
Tennessee
Supreme Court
for further review.
On May 3, 1995,
the petitioner filed a petition for post-conviction relief,
alleging, inter
alia, that his counsel was ineffective for failing to timely seek review by
the
Tennessee
Supreme Court. At the post-conviction hearing, the petitioner testified
that
after his
conviction had been affirmed by the Court of Criminal Appeals, he never
spoke
with Mr. Rogers
or received any advice or information on how to
file a pro se appeal or
retain another
attorney to file an appeal to the Tennessee Supreme Court. Mr.
Rogers
also testified.
He did not recall advising the petitioner of his option to appeal to
the
Supreme Court
and admitted it just "fell between the tracks and the cracks." The
post-
conviction court
found that the petitioner's counsel was ineffective for failing to notify
the
petitioner of
his option to seek review by the Tennessee Supreme Court. The post-
conviction court
denied relief on the other grounds alleged in the petitioner's
petition,
finding them to
be without merit.
On appeal, the
petitioner argues only that he is entitled to seek delayed
review by the
Supreme Court. The State concedes. Considering the trial court's
finding
that the
petitioner's counsel failed to notify the petitioner of his option to seek
review by
the Supreme
Court, we conclude that the petitioner is entitled to a delayed
appeal.