State of Tennessee v. Jeffrey A. Simmons

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 15, 2013

STATE OF TENNESSEE v. JEFFREY A. SIMMONS

Appeal from the Circuit Court for Warren County
No. F8245 Larry B. Stanley, Judge

No. M2012-01374-CCA-R3-CD
No. M2012-01223-CCA-R3-CD
Filed November 6, 2013

The Petitioner, Jeffrey A. Simmons, was convicted of four counts of aggravated sexual
battery and received an effective sentence of thirty-two years. At the hearing on his motion
for new trial, which was denied by the trial court, the Petitioner claimed the ineffective
assistance of Initial and Trial Counsel. The Petitioner later filed a petition for post-
conviction relief, in which he alleged the ineffective assistance of Initial, Trial, and
Successor Counsel. The post-conviction court granted partial relief in the form of a delayed
appeal after it determined, contrary to this court’s conclusion in State v. Jeffrey Simmons,
No. M2007-01383-CCA-R3-CD, 2010 WL 27881 (Tenn. Crim. App. January 6, 2010), that
the Petitioner had, in fact, filed a timely motion for new trial. The post-conviction court
limited the delayed appeal to review of issues that were deemed waived by this court in the
direct appeal. It dismissed the post-conviction relief petition reasoning that the ineffective
assistance of counsel claims had been previously determined. In this consolidated appeal,
the Petitioner argues that the post-conviction court erred by dismissing his petition for post-
conviction relief.1 Following our review, we conclude that the post-conviction court properly
granted the Petitioner a delayed appeal for review of issues raised but not addressed in his
direct appeal. Upon consideration of whether the trial court erred by instructing the jury after
it appeared to be deadlocked, the only issue not reviewed by this court in the Petitioner’s
direct appeal, we affirm the judgment of the trial court. We additionally conclude that the
post-conviction court erred in dismissing the post-conviction petition with respect to the
Petitioner’s claims of ineffective assistance of Successor Counsel. Accordingly, we reverse
the post-conviction court’s dismissal of the portion of the petition that alleged ineffective
assistance of Successor Counsel and remand for an evidentiary hearing. In all other respects,

1
On October 26, 2012, this Court granted the Petitioner’s motion to consolidate his delayed direct
appeal in Case No. M2012-01374-CCA-R3-CD, and the post-conviction court’s dismissal of his petition for
post-conviction relief in Case No. M2012-01223-CCA-R3-CD.
we affirm the post-conviction court’s dismissal of the petition for post-conviction relief
alleging ineffective assistance of Initial Counsel and Trial Counsel.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and R OGER A. P AGE, JJ., joined.

Lauren Zechman-Denney, McMinnville, Tennessee, for the Defendant-Appellant, Jeffrey A.
Simmons.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Finley, Senior Counsel,
Assistant Attorney General; Lisa Zavogiannis, District Attorney General; and Tom Miner,
Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

For a full understanding of the unusual posture of the matter before us, it is necessary
to detail how the Petitioner’s case unfolded following his convictions. On December 10,
2003, a sentencing hearing was conducted, and the Petitioner received an effective forty-
eight-year sentence. On January 6, 2004, Trial Counsel filed a Motion for New Trial.2 This
motion raised several issues, including: the insufficiency of the evidence; the trial court’s
failure to sustain an objection to testimony of Ray Gilder pertaining to the Petitioner’s marital
problems; and sentencing. On July 13, 2004, a Supplemental Motion for New Trial was filed
by Trial Counsel requesting re-sentencing of the Petitioner pursuant to Blakely. On March
23, 2005, a re-sentencing judgment as to each judgment of conviction was entered reflecting
an effective thirty-two-year sentence.

Although there is no order by the trial court reflecting that the Petitioner was
permitted to proceed pro se in the record on appeal, apparently, at some point after the
Petitioner was re-sentenced pursuant to Blakely, the trial court allowed the Petitioner to
proceed pro se. On April 11, 2005, the Petitioner, acting pro se, filed a thirty-eight-page
typed “Motion to Strike All Prior Affidavits in Support of A Motion For A New Trial And
To Replace Said Issues With the Following Affidavit In Support of Motion For A New
Trial.” There is no order from the trial court disposing of the Petitioner’s April 11, 2005
motion in the record on appeal. Almost two years later, on January 8, 2007, the Petitioner,

2
The record reflects that the Petitioner was represented at trial by two representatives of the Public
Defender of the 31st Judicial District. We will refer to them, collectively, as Trial Counsel.

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acting pro se, filed a “Tennessee Rules of Criminal Procedure Rule 33c Affidavit In Support
of Defendant’s Motion For New Trial and Notice of Newly Discovered Evidence.” Within
this motion, the Petitioner alleged twenty-five (25) grounds of ineffective assistance of Initial
Counsel and Trial Counsel as well as prosecutorial misconduct.3

On January 16, 2007, the Petitioner, acting pro se, filed a “Motion For Funds To Hire
An Investigator To Aid The Defendant In Proving Aggravated Perjury Against Five State
Witnesses.” The Petitioner also filed a Motion for Appointment of Co-Counsel, and in
response, the trial court issued an order on February 22, 2007. Within the order, the trial
court found no precedent for the appointment of co-counsel for a pro se defendant. It
provided the Petitioner with the option to proceed pro se or waive his right to proceed pro
se and have counsel appointed to his case. The Petitioner apparently chose the latter, and the
trial court appointed Successor Counsel, who represented the Petitioner at the hearing on the
motion for new trial.4 In the same order, the trial court held in abeyance the previous pro se
motions filed by the Petitioner until Successor Counsel could review them. The record does
not contain any supplemental motions filed by Successor Counsel.

On May 29, 2007, the trial court conducted a hearing on the motion for new trial. The
Petitioner and Trial Counsel testified at the hearing. At the beginning of the hearing, the trial
court stated:

There [have] been lots of pleadings. Some were a motion for a new trial, and
some that were post convictions petitions. I am here today to hear anything
that needs to be heard. Mr. Simmons indicated at one point that he included
all of these issues together, and that is fine.

Successor Counsel, replied, “We can go forward with the Motion for New Trial. . . . [and]
I will reserve any other issues we may have.” Successor Counsel began by asking the
Petitioner, “we are here today on a Post Conviction/ Ineffective Assistance of Counsel claim
that you brought forward. Is that correct?” In response, the Petitioner said, “When you say
Post Conviction, we have not even made it to the appellate stage. We have a Motion for New
Trial.”

3
The record reflects that the Petitioner was initially represented at the preliminary hearing level
by separate counsel. We will refer to her as “Initial Counsel.”
4
The record reflects that the Petitioner was represented by separate counsel at the hearing on the
motion for new trial and on direct appeal. We will refer to him as “Successor Counsel.”

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 The Petitioner then proceeded to testify, at length, regarding various issues. His initial
complaint concerned the testimony of the victim at the preliminary hearing. He testified that
“[i]n the midst of the preliminary hearing, after direct examination by the prosecution, my
counsel, Ms. Peg Stewart, inquired about a fourth alleged incident that the alleged victim had
stated during the prosecution, but in which the prosecution did not ask this alleged victim
about.” The Petitioner believed that had Initial Counsel not asked the victim about the fourth
incident it would not have been included as the fourth count of the indictment.

The Petitioner also acknowledged that Initial Counsel filed a change of venue motion
and had “in her possession newspaper articles that would support” a change of venue to
another county. However, he essentially complained that trial court erred in denying the
motion. Apparently, the original judge who heard the evidence supporting the motion said
he would rule on it when the trial began. A different judge heard the trial, and no proof was
presented by Trial Counsel supporting the motion. The Petitioner believed that had he been
granted a change of venue, the result of the trial would have been different.

The Petitioner also testified that he underwent a psychiatric evaluation and was never
permitted to review the results by Trial Counsel. He believed this affected the outcome of
the trial because he provided the psychiatrist with list of alleged constitutional violations by
state officials. He was not provided with copy of report and said that it was “all for nothing.”

The Petitioner also said that he was “granted $15,000 to have all of the alleged victims
in every case mentally evaluated.” He testified that the purpose of evaluation was to assess
“how that alleged victim changed her story from the time that she was interviewed to the time
of trial.” He complained that Trial Counsel failed to conduct the evaluations, which were
“never taken care of.” He believed that it “could have been a substantial defense at trial”
based on suggestibility and indoctrination.

The Petitioner also testified that Jason Rowland, the investigator for the District
Attorney General’s Office, fabricated the information contained in the affidavits supporting
the warrants in his case. The Petitioner said that he had done a significant amount of legal
research and that he was, in fact, a legal clerk. He believed that “[t]he statements made in
all of the affidavits of complaint were directly contradictory to the statements of the alleged
victim.” Based on the Petitioner’s research, he believed every proceeding up to the
indictment was invalid due to the fabricated warrants. He reasoned, “Since the bind over to
the Grand Jury would be held invalid, the Grand Jury never had jurisdiction over the subject
matter to hear any of the cases.” In effect, he maintained that counts one through three of his
convictions should be overturned based on the invalidity of the underlying warrants.

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 The Petitioner said that the statements in the affidavits were contradicted by the
victim’s testimony at the preliminary hearing. He specified the following statements: (1) Inv.
Rowland claimed the offense was associated with a youth group and the victim denied any
youth group members were present at time of offense; (2) Inv. Rowland claimed the
Petitioner touched the victim on the vagina, while the victim claimed it was on her leg up to
her private and back down her leg; which caused the State, at trial, to allege touching of her
vagina.

The Petitioner acknowledged that he had given Successor Counsel a list of over two-
hundred twenty-two (222) statements made during trial that he believed were inconsistent.
He said he “condensed those down into sixty-six (66) topics of story changes that the alleged
victim made prior to the trial.” He said only forty-two (42) of these inconsistent statements
were brought to the jury’s attention. He believed that if all of the inconsistent statements
were presented to the jury, it would have lessened the victim’s credibility and resulted in an
acquittal.

The Petitioner said that he did not testify at trial because he was not properly prepared
to testify by Trial Counsel. He additionally stated that he was not allowed to review a video-
taped statement, apparently taken of him at the time of his arrest. Because he did not
remember everything he said in the video-taped statement, the Petitioner believed testifying
without the benefit of previously viewing the video-taped statement would have resulted in
inconsistent statements. He said that Trial Counsel violated his rights and told him that they
would not represent him if he testified on his own behalf. The Petitioner testified that had
he been properly prepared to testify, then he would have provided two alibi defenses in
August of 1999 and December or January of 2000. He said that Trial Counsel failed to
acknowledge or subpoena witnesses from a notebook which he compiled, including Dr.
William Burnett who was associated with the $15,000 grant. He said that Trial Counsel also
failed to investigate his alibi defense.

The Petitioner believed that Trial Counsel assisted the State in securing his
convictions. He said that one of the most important issues in his case was whether the victim
was awake or asleep at the time of the alleged incident. He acknowledged that Trial Counsel
raised the issue with respect to count one. However, he said Trial Counsel failed to raise the
issue in count three. He said this was important because the victim initially said she was
asleep prior to the alleged incident, however, at trial she said she was awake. He also said
Trial Counsel failed to address count two, wherein the victim stated that she only heard rather
than actually saw the perpetrator.

The Petitioner also referred vaguely to a “due process review,” which he said had been
granted from Nashville based on false statements in his underlying arrest warrants. He said

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that his statements to Ray Gilder, pastor of Gath Baptist Church and a key prosecution
witness, as well as to Jimmy Blankenship, were “obtained from the poisonous tree” because
the warrants were based on false statements. He also alleged that the trial judge had a
personal relationship with Ray Gilder and claimed that he saw them having a personal
conversation after his second trial. Based on this relationship, the Petitioner alleged that the
trial court had a conflict of interest and orally moved for him to recuse himself a year before
trial. He said that the trial judge never resolved his oral motion for recusal or any of the
“over a hundred documents that were true prosecutorial misconduct.” Finally, the Petitioner
said that Trial Counsel was ineffective for failing to file the motion to recuse and that the
Petitioner was prejudiced because “any other judge would have found the testimony of Ray
Gilder concerning the petitioner’s marital problems was irrelevant.”

The Petitioner said that the only strategy employed by Trial Counsel was “he said/she
said.” He thought Trial Counsel should have investigated the fabricated warrants,
prosecutorial misconduct, and used the $15,000 to have the victim psychologically evaluated.
The Petitioner also asserted that at the sentencing hearing, the State was permitted to put
forth a psychological evaluation of the victim, which he wanted Trial Counsel to suppress.
He believed that the State withheld the victim’s evaluation because, in response to his motion
for discovery, the State denied having a psychological evaluation of the victim. He said that
the psychological evaluation contained exculpatory statements, namely that victim did not
experience psychological or medical problems until after she knew the Petitioner was fired
from the church.

The Petitioner also claimed that the State failed to disclose certain information which
created an “unfair surprise.” He handed the trial judge two lists of exculpatory evidence he
believed were concealed by the State prior to trial and “protective measures taken by me that
would tend to prove my innocence rather than my guilt that defense counsel never once
brought up pretrial or during the trial.”

After the Petitioner’s testimony, there was, yet again, a discussion regarding whether
he was proceeding with his claims of ineffective assistance of counsel during the motion for
new trial. With regard to certain witnesses the Petitioner wished for Successor Counsel to
call to the stand, Successor Counsel said:

I am in a weird position because I am advocating on behalf of [the Petitioner].
He provided me with a list of seven (7) witnesses to possibly call at his Motion
for a New Trial. Based on the fact that I am lead counsel on this, and based
on my law degree and being licensed to practice law in the State of Tennessee,
I made the determination that I don’t want to prejudice [the Petitioner] going
forward the way he wants to go forward. It is my belief that [the District

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 Attorney] is not likely to take the stand and say that he committed perjury or
prosecutorial misconduct and give the kind of proof that [the Petitioner] thinks
he needs to go forward. I don’t want to stop him from doing that, but I didn’t
call [the District Attorney] to do that today. . . .

The Petitioner advised the Court that he had certain documents he intended to submit
as evidence. The Petitioner stated:

I want to make sure, as the State mentioned, is that I am coming up here
saying all these things without proof to back it up. I have got the proof in
[Successor Counsel’s] possession. Okay? I want to make sure that I preserve
the proof before you make your judgments. I want to present my proof. I want
to make sure you see what proof we have, on alibis and so on and so forth, that
defense counsel failed to subpoena.

In response, Successor Counsel acknowledged over two-hundred documents in his
possession that were provided to him by the Petitioner. Successor Counsel then stated:

[A] large portion of this is work product and it can’t be submitted. I suppose
he did it himself and then gave it to me. A large majority of the materials that
[the Petitioner] and I covered is going line by line through some of the record,
and there is at least four hundred and some odd inconsistent statements. So,
a large part of the proof would be she said this when this and this and this
would have proved this.

Initial Counsel did not testify at the motion for new trial hearing. Trial Counsel,
licensed to practice law since 1994, testified that he began representing the Petitioner in
2003. Trial Counsel did not dispute that the Petitioner gave him “numerous bound volumes”
of between five-hundred (500) to one thousand (1000) pages; however, he characterized the
volumes as “incredible.” Trial Counsel did not consider the statements submitted to him by
the Petitioner to be false as he understood the definition of false statements.

Trial Counsel, along with the Petitioner’s mother, met with the Petitioner to discuss
whether the Petitioner would testify at trial. Trial Counsel stated that the Petitioner initially
indicated a desire to testify. Trial Counsel said that they had already impeached the victim
with prior inconsistent statements and that the testimony of the Petitioner would not have
been helpful. If the Petitioner testified, Trial Counsel was concerned he would “get into all
this other stuff that he felt was going on at [Gath Church].” Trial Counsel denied threatening
to quit or recuse himself from this case if the Petitioner testified. Trial Counsel said that he
“tried to make [the Petitioner] aware of how it looked from both sides.” Trial Counsel

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acknowledged there were “other numerous allegations” of sexual assault against the
Petitioner, and he was concerned that the Petitioner would open the door to those matters if
he testified. Trial Counsel testified that it was ultimately the Petitioner’s decision not to
testify.

Trial Counsel acknowledged that the Petitioner discussed an alibi defense. Before
testifying as to the details of the alibi defense, Trial Counsel requested and received
permission to consult with the Tennessee Board of Professional Responsibility. Upon
determining that Trial Counsel was permitted to testify regarding the details of the issue,
Successor Counsel consulted with the Petitioner, who ultimately decided to abandon his
claims to an alibi defense.

Trial Counsel attempted to contact the victim to obtain a pre-trial statement; however,
she refused to speak with him. Trial Counsel reviewed the victim’s preliminary hearing
testimony and compared it to her statement given to the Department of Children’s Services.
At trial, Trial Counsel raised inconsistencies found in the victim’s statements, primarily that
she omitted the fourth incident from her initial statement and did not mention it until the
preliminary hearing. On cross-examination, Trial Counsel acknowledged that he had
obtained a psychiatric evaluation on the Petitioner; however, he had no knowledge of a
$15,000 grant for investigation. Trial Counsel did not recall a motion to recuse the trial
judge and did not file a bill of particulars. Trial Counsel acknowledged that he reviewed the
video-taped interview of the Petitioner and said that it was excluded from trial. Trial Counsel
agreed that he did not review it with the Petitioner at the jail.

On June 7, 2007, the trial court filed an order incorporating its oral findings from the
motion for new trial and denying relief, which stated, in pertinent part, the following:

[T]he Petitioner incorporated into his grounds for a new trial issues related to
ineffective assistance of counsel which would normally be reserved for a Post
Conviction Relief proceeding. In order to assist the defendant in developing
an appropriate record for appeal on the issues related to ineffective assistance
of counsel, the Court has conducted a hearing and taken proof on the issues of
ineffective assistance of counsel so that the Court could rule on those issues
as a part of its decision on the motion for new trial. . . . Having reviewed all
the pleadings filed by the defendant, the Court finds no issue raised by the
defendant which would warrant the grant of a new trial in this cause. As to
issues argued at the May 29, 2007 hearing, the Court made certain oral
findings, which shall be incorporated into this Order by reference.

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 The trial court provided extensive oral findings which, in pertinent part, were as
follows:

I don’t have the instructions that I read [to the jury at trial] in front of
me. I took it from the testimony today that I actually quoted the Pattern Jury
Instruction on deadlocked Juries.
....
In this case, I don’t recall having made the statement to the Jury of
anything other than, well, see what you can do. If you are able to reach a
verdict, fine. If you are not, we will come back. I think that is what I said.
But if I am wrong, so be it.
....
All right. Let me start off with the defendant’s problem with the preliminary
hearing which lead to the fourth count of the indictment. Lots of things
change at preliminary hearings in between the time that criminal warrants are
taken out and the time that the case comes out of the Grand Jury. Grand Juries
can modify. They can add counts, and anything such as that. I think any
problems that were brought up in the preliminary hearing were rectified by the
Grand Jury’s indictment on that count, which also gave him notice of what he
was being charged with. Change of venue. There is no proof in front of the
Court that this gentleman could not get a fair trial here. He made some
statements regarding the newspaper or press, but I don’t have anything in front
of me at this time showing that I improperly refused to grant a change of
venue. The victim’s psychological evaluation. I do recall that Mr. Miner said
there were two (2) similar cases going on at the same time, both of which
wanted experts to come in and testify as to credibility of children and
credibility of witnesses as to what they saw or think they remembered. In one
case I had overruled the exact same issue that we have got here as to the
credibility of children and credibility of witnesses and experts to come in and
testify as to why you should or should not believe someone. It was this
Court’s opinion that the Superior Courts have said that that is not something
that would require expert testimony. It is solely in the providence of the Jury
and lay persons can make that determination on their own. One of the main
issues that [the Petitioner] has is changes in the victim’s story from the time
that she first went into the DCS and told them about what happened until she
came to trial. I have no doubt that [the Petitioner] believes that he has found
many discrepancies, or as he calls them perjury, or inconsistent statements in
the victim’s story. The question is, did the defense counsel know about those
discrepancies and utilize them as best as they could in trying to defend [the
Petitioner]. Well, the truth is that Mr. Grissom had all of the statements as I

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can tell from the victim, and went over the preliminary hearing, and went over
transcripts of the Department of Children’s Services and people that took
statements from the victim in this case, and did what he could to question the
victim on the witness stand in his cross examination. Now, I don’t remember
every detail of this case. I do remember parts of the case, and I do remember
that part. I do remember that defense counsel cross examined the victim in this
case about the different statements, and why would you say this when you said
this earlier, and arguing that to the Jury, that you can’t believe this victim, and
going through those instances. Now, [the Petitioner] and his counsel may have
a different idea about what is really important, what is a material discrepancy
and what is a minor inconsistency. That is stated in the instructions, that minor
inconsistencies don’t necessarily mean that someone is not telling the truth.
Defense counsel, I am sure, elected not to go every single sentence if it was not
repeated verbatim over the years until she got to Court. I do remember that
they cross examined the victim on prior inconsistent statements extensively,
as they should, because that was their basic defense, that she is making this up,
or exaggerating it, and was unable to keep the same story. I don’t think
defense counsel failed to do what they were supposed to do with the
discrepancies in testimony and discrepancies in prior statements. The warrants
that were falsified, I can’t find that the warrants were falsified. Again, if the
warrants weren’t completely correct, I think that was remedied by the Grand
Jury’s indictment. There is no proof in front of me that Investigator Rowland
intentionally falsified any warrants or wrote down anything that was
specifically found in a different way. Now, he may have written something
down and this young lady changed her story to some extent later on. That may
be the case, but that does not invalidate the indictment. So, I don’t find any
credibility there. Going back to the charge to the Jury, there is no proof that
what I said was prejudicial. As I said, I don’t think I said anything that caused
the Jury to do anything except try to continue deliberations and come to a
verdict if they could do so based on the evidence and the law. The defendant
not testifying, that also is a critical part of defense counsel’s strategy. I find
it very difficult to believe that Mr. Grissom said that he was going to quit or
recuse himself in the case if [the Petitioner] testified. One of the things that
I will note is that [the Petitioner] has always been very courteous with this
Court, and always spoken straightforward. He was that way with defense
counsel as far as I could tell during the trial. One part that I do remember is
going over with [the Petitioner] about whether or not he wanted to testify. I
think he and counsel had a long discussion, as often times happens in these
types of cases, as to whether or not the defendant would testify. By all
accounts, his mother was there and was engaged in the conversation. Based

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on what [the Petitioner] indicated to me at the time, he knew what he was
doing. I did not feel there was any coercion at that time, nor do I now, about
Mr. Grissom telling [the Petitioner] not to testify. I think he had an obligation
to tell [the Petitioner] what his opinion was with regard to whether or not it
would affect the outcome of the case, what might happen, and what might
happen if he did not testify. I think after all that, the decision was intelligently
made. [The Petitioner] is a smart man. All counsel can do at that point is give
the defendant their opinion and their options, and make sure that they
understand those. As Mr. Grissom said, we can’t make the decision for him.
We can only give him the options of what can happen. The victim’s
statements. [The Petitioner] indicated that there was a victim statement that
was either not turned over or newly discovered evidence. I don’t know at this
time what that is I think Mr. Grissom had all the statements that were made.
There has been nothing else produced to me that should have been turned over
that was not. So, I don’t find any merit to that. [The Petitioner] says that
defense counsel assisted the State at trial. I do not find that credible. I listened
to the trial. As far as I remember at the time, I did not have any feelings about
the case that defendant’s counsel did not do at least what would minimally be
required to satisfy their job as to making all reasonable efforts to defend [the
Petitioner]. . . . The due process review issue, I think Mr. Miner is probably
correct. That would seem to be a DCS issue that would have no bearing on
this case. It was pre-trial, and I have no idea what that would be, other than
some type of civil matter. There was some conversation about me recusing
myself. That part I do not recall. I do not recall [the Petitioner] asking me to
recuse myself. I would have had no reason to. Obviously, if that issue did
come up, I would have implicitly have overruled that request. I don’t ever
recall speaking to Mr. Gilder. If I did after the trial, I don’t recall if I did. It
had to be a very short conversation. I wouldn’t know the man if he walked in
here today. . . . I don’t think counsel was lacking in preparation of the case. .
. . There is nothing in front of me showing that the State concealed exculpatory
evidence. There is nothing showing that defense counsel didn’t know of
previous statements made by the victim. I find it very difficult to believe that
the defendant only knew he was going to be tried on Count One. . . . There
were obviously several counts, and nothing to indicate that they would not be
tried together. . . . The identification of the defendant. . . . Taking the testimony
as a whole in the case, there was no question that the [Petitioner] that is before
us now is the one that was alleged to have committed these acts. . . . [The
Petitioner], I think, knew what was on the video tape of him. Mr. Grissom did
as he should have. He watched the video tape and went over it to see what his
client said. I think they went over that with [the Petitioner]. A better practice

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 would probably have been to actually watch the video with him, but there is
testimony before me today that he was aware mostly, or if not, to a large extent
of what was said and what was on the tape, and he knew approximately what
he said on that video tape. . . . There is no testimony from any Jurors, and no
affidavits that they would have reached any other verdict. I don’t think I
hurried them . . . . The clergy privilege, that was not raised at trial, and I don’t
find that there is any privilege for a deacon of the church regarding one of their
employees. . . . [The Petitioner] seems to think it would have made a
difference where the doors were and things of that nature. I recall at least
some discussion about that during the trial, but nothing that would have really
made a difference.

Following the denial of the motion for new trial, Successor Counsel filed a direct
appeal. On direct appeal, Successor Counsel argued that: (1) the evidence was insufficient
to sustain the convictions; (2) the trial court improperly instructed the jury after the jury
deadlocked; and (3) the trial court erred when it ordered consecutive sentencing. The State
argued, and we agreed, that the Petitioner’s appeal should be dismissed for failure to file a
timely motion for new trial and notice of appeal. Consequently, we waived consideration of
the Petitioner’s objections to the jury instructions. In the interest of justice, we elected to
review and subsequently affirmed the sufficiency of the evidence and the trial court’s order
of consecutive sentencing. State v. Jeffrey Simmons, 2010 WL 27881, * 1 (Tenn. Crim.
App. 2010).

Successor Counsel was relieved of representing the Petitioner by order of the trial
court on June 1, 2011. On June 14, 2011, the Petitioner, acting pro se, filed an eighty-five
(85) page petition for post-conviction relief, along with various attachments, alleging the
ineffective assistance of Initial, Trial, and Successor Counsel. The trial court appointed post-
conviction counsel on July 5, 2011, and ordered the State to respond to the petition. The
Assistant District Attorney General filed a brief, noting that the Petitioner had presented his
claim of ineffective assistance of counsel as part of his Motion for New Trial and requesting
that the post-conviction court dismiss the petition as the Petitioner was barred from re-
litigating the issues presented therein.

On May 9, 2012, the post-conviction court conducted a hearing on the motion to
dismiss the Petitioner’s petition seeking post-conviction relief. At the hearing, the State and
Petitioner’s Counsel agreed that the Petitioner filed a timely motion for new trial. The State
explained that it was “not opposed to [the Petitioner] being granted a delayed appeal on the
issues that he should have been able to argue had [the Court of Criminal Appeals] been able
to ferret out the record[.]” While the State agreed to a delayed appeal, it objected to allowing
the Petitioner to proceed with a hearing on the ineffective assistance of counsel claims

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because the court had already ruled on those issues in the motion for new trial. Petitioner’s
counsel argued that the Petitioner was “not allowed to litigate all the claims he had [at the
motion for new trial].” She said that the Petitioner was unable to present documentary
evidence or any claims against Successor Counsel. The Petitioner added that Successor
Counsel “told [him] that he forgot to bring the [documentary proof in support of the motion
for new trial].” The post-conviction court noted the “tricky” situation of the Petitioner’s
attempting to include claims of ineffective assistance of Successor Counsel in his motion for
new trial or his petition for post-conviction relief. The Petitioner insisted, however, that “it
would benefit [him] more if [he] raised all [of his] issues in [his] current post-conviction
petition.”

In its June 1, 2012 order dismissing the petition for post-conviction relief but granting
a delayed appeal, the trial court stated:

Various efforts were made to clarify whether the Defendant wished to present
issues of ineffective assistance of counsel at his Motion for New Trial
including “Order in Preparation for Motion for New Trial” filed March 23,
2005, a “Motion to Strike all Prior Affidavits in Support of Motion for New
Trial and to Replace Said Issues with the Following Affidavit in Support of a
Motion for New Trial” filed by the Defendant on April 11, 2005, and a letter
written by the trial judge to the Defendant on May 9, 2005, cautioning him that
if he chose to litigate issues of ineffective assistance of counsel by way of
Motion for New Trial he would be barred from re-litigating those issues by
way of Petition for Post-Conviction Relief.

In the same order, the trial court granted a delayed appeal. It noted that the
Defendant’s motion for new trial was not found by this Court on his direct appeal because
it was “buried in the voluminous Pro Se pleadings filed by the Petitioner.” It concluded that
the Petitioner had, in fact, filed a timely motion for new trial; therefore, the Petitioner should
be allowed “direct appellate review on issues argued at his Motion for New Trial hearing,
which were not addressed during his appeal of right.”

It is from this order that the Petitioner appeals.

ANALYSIS

I. Mistrial Comment to Jury by Trial Court. In his direct appeal, the only issue
this court declined to review as a result of the purported untimely motion for new trial was
whether “the trial court gave improper jury instructions after the jury became deadlocked
which prejudiced the Appellant and precluded his ability to receive a fair and impartial trial.”

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As previously stated, the State maintained that the issue had been waived because “the
defendant acknowledged in his brief that he failed to object at trial to the instructions of
which he now complains,” see Tenn. R. App. P. 36(a), and that the defendant failed to
include the issue in his motion for new trial.

In State v. Kersey, 525 S.W.2d 139, 144-45 (Tenn.1975), the Tennessee Supreme
Court adopted Sec. 5.4 of the ABA Standards Relating to Trial by Jury, directed its use by
the trial courts faced with deadlocked juries, and disapproved of the Allen or “dynamite”
charge. See Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 157 (1896);
Commonwealth v. Tuey, 62 Mass. 1, 1-2 (1851). Under Kersey, trial courts “may require the
jury to continue their deliberations and may give or repeat an instruction. . . .” Kersey, 525
S.W.2d at 145. Trial courts “shall not require or threaten to require the jury to deliberate for
an unreasonable length of time or for unreasonable intervals.” Id. “The jury may be
discharged without having agreed upon a verdict if it appears that there is no reasonable
probability of agreement.” Id. Finally, the court in Kersey cautioned:

Any undue intrusion by the trial judge into this exclusive province of the jury,
is an error of the first magnitude. We recognize that the trial judge has a
legitimate concern in the administration of justice and that he labors under a
duty to lend guidance to the jury through instructions as to the governing
principles of the law. However, when the effort to secure a verdict reaches the
point that a single juror may be coerced into surrendering views
conscientiously entertained, the jury’s province is invaded and the requirement
of unanimity is diluted.

Id. at 144.

The record reflects that the jury began deliberations at 4:25 p.m. and informed the trial
court that it had a question at 8:10 p.m. The record does not provide the specific question
which caused the trial court to convene the jury. In open court and in the presence of all
parties, the following exchange occurred:

THE COURT: I understand that you have not been able to reach a verdict yet.
There are a couple of things that can happen. One, is if you feel like you are
making any progress, or can make any progress towards reaching a verdict, I
can let you go back in and you can continue to deliberate tonight. If you are
too tired to do it tonight, you can come back Monday morning and continue.
If the Jurors feel like there is not a chance, and that you have gone through
everything completely and there is no chance that the Jury can reach a
unanimous verdict, then we would declare a mistrial. So, I guess my question

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 at this point my question is to you, is there any possibility that you could
continue and reach a verdict either tonight, or come back Monday morning?

[STATE’S ATTORNEY]: Your Honor, could you explain to them what a
mistrial is?

[THE COURT]: Any objection?

[DEFENSE COUNSEL]: No.

[THE COURT]: Well, let me put it this way. We would declare a hung Jury.
Then, the case would go back to its’ [sic] original status. We would just start
over at a different time with a different Jury. Now, if there is a possibility that
you are making any progress, and that you could reach a unanimous verdict in
good conscience, you can do that. Again, if you feel that you cannot do that,
and there is no point, and it would futile to do that, then we will simply declare
a hung jury.

The jury returned to the jury room at 8:14 p.m. to deliberate. Twenty minutes later,
at 8:34 p.m., the jury returned to the courtroom with guilty verdicts as to each count in the
indictment.

As an initial matter, even though Trial Counsel failed to make a contemporaneous
objection to the trial court’s explanation of a mistrial, this issue was included in the
Petitioner’s motion for new trial. “An erroneous or inaccurate jury charge, as opposed to an
incomplete jury charge, may be raised for the first time in a motion for a new trial and is not
waived by the failure to make a contemporaneous objection.” State v. Faulkner, 154 S.W.3d
48, 58 (Tenn. 2005) (citing State v. Lynn, 924 S.W.2d 892, 898-99 (Tenn. 1996); Tenn. R.
Crim. P. 30(b)). Therefore, contrary to the State’s argument, this issue has been properly
preserved for appellate review.

The Petitioner does not argue that the trial court’s response to the jury’s question
constituted an impermissible “Allen” or “dynamite” charge. Instead, the Petitioner contends
that the trial court’s supplemental definition of a mistrial; namely, that “we would just start
over at a different time with a different jury,” violated the dictates of Kersey by implying
that it would be a considerable inconvenience to retry the case. We begin by acknowledging
that the trial court should not have commented on the potential for a retrial in this case. See
State v. Lee Turner, No. M2005-02749-CCA-R3-CD, 2007 WL 845894 at * 6 (Tenn. Crim.
App. March 16, 2007) (finding trial court’s comments concerning possible retrial did not
require reversal but noting disapproval of practice). Such comments are not appropriate for

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consideration by the jury. Indeed, a mistrial may not result in a new trial because that
decision is left to the discretion of the prosecution. United States v. Bonam, 772 F.2d 1449,
1450 (9th Cir.1985) (noting that comments concerning a retrial have “‘no proper place before
the jury’ because ‘it is not true that the case will have to be retried; that is a matter of
prosecutorial discretion’”); United States v. Hernandez, 105 F.3d 1330, 1334 (9th Cir. 1997)
(holding that comment concerning retrial to jury was not coercive because it was made in the
context of “the district court’s statement that no other set of jurors would be better equipped
to decide the case than this jury”).

However, an error in the jury charge is not necessarily grounds for reversal. Johnson
v. Hardin, 926 S.W.2d 236, 243 (Tenn. 1996). Reversal is appropriate only if the error was
a material factor in producing the verdict. Id.; State v. James Cecil Baxter, 938 S.W.2d 697,
704 (Tenn. 1996). On this record, we are unable to conclude that the trial court’s comments
to the jury coerced their verdict. First, although the Petitioner argues that the jury was
“deadlocked,” nothing in the record suggests that the jury was at an impasse. The trial
court’s comments were directed to the jury as a whole, not any single juror who may have
been in the minority. Given the evening hour of deliberations, the trial court’s initial
comments appear to have been made for the purpose of scheduling. See State v. Howard
Barnwell, No. 935, 1986 WL 4491 (Tenn. Crim. App. April 14, 1986). When the trial court
was asked to further define a mistrial, it replied, “We would declare a hung Jury. Then, the
case would go back to its’ [sic] original status. We would just start over at a different time
with a different Jury.” Importantly, the trial court did not explicitly refer to the expense of
a retrial or the burden of a jury deadlock. See United States v. Giacalone, 588 F.2d 1158,
1167 (6th Cir.1978) (noting disfavor with trial court’s comments to jury placing undue
emphasis on the expense and burden of conducting a retrial); United States v. Harris, 391
F.2d 348, 354 (6th Cir.1968) (same). Accordingly, we conclude that the trial court’s
comments were not a material factor in the jury’s verdict. The Petitioner is not entitled to
relief.

II. Dismissal of Petition for Post-Conviction Relief. The Petitioner contends that
the trial court erred in dismissing his petition for post-conviction relief. We disagree with the
Petitioner and conclude that the trial court properly dismissed the petition without considering
the Petitioner’s claims of ineffective assistance of Initial and Trial Counsel. We review the
post-conviction court’s dismissal of the petition, as an issue of law, de novo on the record
without a presumption of correctness. See Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002).

The Post Conviction Procedure Act provides, in pertinent part, as follows:

Upon receipt of a petition in proper form, or upon receipt of an amended
petition, the court shall examine the allegations of fact in the petition. If the

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 facts alleged, taken as true, fail to show that the petitioner is entitled to relief
or fail to show that the claims for relief have not been waived or previously
determined, the petition shall be dismissed. The order of dismissal shall set
forth the court’s conclusions of law.
....
A ground for [post-conviction] relief is previously determined if a court of
competent jurisdiction has ruled on the merits after a full and fair hearing. A
full and fair hearing has occurred where the petitioner is afforded the
opportunity to call witnesses and otherwise present evidence, regardless of
whether the petitioner actually introduced any evidence.

Tenn. Code Ann. § 40-30-106 (f), (h) (2012).

Here, the Petitioner seemingly argues that he did not fully understand that he would
be barred from claiming ineffective assistance of Initial and Trial Counsel in future
proceedings. The record overwhelmingly indicates that the Petitioner was keenly aware of
the consequences of combining his ineffective assistance claims with his motion for new trial.
The trial court repeatedly advised the Petitioner, in open court and by letter, of the perils
involved with including his claims of ineffective assistance of counsel with his motion for
new trial. The Petitioner acted pro se for the bulk of his post sentencing proceedings, and the
record reflects that he spent considerable time researching the legal issues involved in his
case. Ignoring the warnings of the trial court, the Petitioner presented proof of his ineffective
assistance of Initial and Trial Counsel claims at his motion for new trial hearing.
Accordingly, the trial court properly dismissed as previously determined the portion of the
petition in which the Petitioner attempted to re-litigate his claims of ineffective assistance of
Initial and Trial Counsel. We are unable to address these claims in this appeal, as intimated
by the parties’ appellate briefs, because none of the Petitioner’s claims of ineffective
assistance of counsel were raised in his original direct appeal. See State v. Matson, 729
S.W.2d 281, 282 (Tenn. Crim. App.1986) (citing State v. Swanson, 680 S.W.2d 487, 491
(Tenn. Crim. App.1984) (noting that it is counsel’s responsibility to determine the issues to
present on appeal)).

However, the Petitioner included additional claims of ineffective assistance of
Successor Counsel in his petition for post-conviction relief. This court has previously held
that “allegations regarding the ineffectiveness of appellate counsel, when trial and appellate
counsel are different, are not waived under the Post-Conviction Act when those allegations
are not presented on direct appeal.” John Earl Scales v. State, No.
M2001-00310-CCA-R3-PC, 2002 WL 1949697, at *2 (Tenn. Crim. App. Aug. 23, 2002)
(citing Kendricks v. State, 13 S.W.3d 401, 405 (Tenn. Crim. App.1999)); Ronald Yates v.
State, No. W2008-02067-CCA-R3-PC, 2009 WL 4505436, at * 3 (Tenn. Crim. App. Dec. 3,

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2009). Moreover, this court has recognized that a defendant retains a surviving claim of
ineffective assistance relative to the performance of successor counsel in relation to his
representation on the motion for new trial. See Laraiel Winton v. State, No. E2011-00762-
CCA-R3-PC, 2012 WL 273759, at * 5 (Tenn. Crim. App. Jan. 31, 2012), perm. app. denied
(Tenn. Aug. 16, 2012); Russell Lane Overby v. State, No. W2001-01247-CCA-R3-PC, 2002
WL 818250, at * 2 (Tenn. Crim. App., Apr. 26, 2002), perm. app. denied (Tenn. Sept. 9,
2002). By its summary dismissal, the post-conviction court precluded the Petitioner from
setting forth proof in support of his claims of ineffective assistance of Successor Counsel.
Accordingly, we reverse the trial court’s dismissal of the portion of the post-conviction
petition alleging ineffective assistance of Successor Counsel and remand for a hearing.

CONCLUSION

Based on the above authority and analysis, we affirm the post-conviction court’s
dismissal of the portion of the petition for post-conviction relief claiming ineffective
assistance of Initial and Trial Counsel. We reverse the post-conviction court’s dismissal of
the portion of the petition claiming the ineffective assistance of Successor Counsel and
remand for a hearing. We further conclude that the trial court’s comments regarding a mistrial
did not coerce the jury verdict in this case; therefore, the judgment of the trial court is
affirmed.

___________________________________
CAMILLE R. McMULLEN, JUDGE

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