IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
September 7, 2000 Session
KENNETH LEE WESTON v. STATE OF TENNESSEE
Appeal from the Court of Criminal Appeals
Criminal Court for Knox County
Nos. 40398, 45862 Richard R. Baumgartner, Judge
No. E1998-02620-SC-R11-PC - Filed March 27, 2001
We granted review in this cause to determine whether the trial court exceeded the authority granted
upon remand when it permitted Kenneth Lee Weston to amend his post-conviction petition and when
it ruled on the amended petition. Because we find that the trial court was without authority to allow
the amendment, we vacate all orders pertaining to the amended petition and remand the cause to the
Court of Criminal Appeals for a first-tier review of the trial court’s denial of the original unamended
petition for post-conviction relief.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
Affirmed; Remanded to Court of Criminal Appeals
ADOLPHO A. BIRCH, JR., J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J.,
JANICE M. HOLDER and WILLIAM M. BARKER, JJ., joined. FRANK F. DROWOTA, III, J., not
participating.
Mark E. Stephens, District Public Defender, and Paula R. Voss, Assistant District Public Defender,
Knoxville, Tennessee, for appellant, Kenneth Lee Weston.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General, Erik W.
Daab, Assistant Attorney General, Randall E. Nichols, District Attorney General, and Marsha
Selecman, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts and Procedural History
Kenneth Lee Weston was convicted in 1988 of robbery by the use of a deadly weapon. He
was adjudicated to be an habitual criminal and was sentenced to the penitentiary for life. The
conviction and sentence were affirmed on direct appeal.
On April 28, 1990, Weston filed his first petition for post-conviction relief, and the trial court
appointed Ellery Hill, Esquire, to represent him. In this petition, Weston contended that trial counsel
had failed to provide effective assistance of counsel. Specifically, he alleged that counsel: (1) failed
to properly investigate prior Georgia convictions used to establish him as an habitual offender; (2)
failed to request an instruction that one of the Georgia convictions was based upon a crime not
perpetrated by him; (3) failed to advise him of the potential use of prior convictions in determining
sentences; and (4) violated his Fifth, Sixth, and Fourteenth Amendment rights. After an evidentiary
hearing on July 11, 1991, the trial court denied relief. No appeal was perfected from this judgment.
On November 25, 1991, Weston filed a second petition for post-conviction relief. In it, he
alleged that Hill had failed to appeal the denial of his first post-conviction petition, falling thereby
below the Baxter v. Rose1 standard for effective assistance of counsel. Weston also alleged that Hill
had failed to redraft his first petition to “incorporate an issue concerning the duplicity and multiple
counts within his indictment along with [the] legal ramifications of charging the jury regarding the
facts of lesser included offense(s).” After a hearing on April 6, 1992, the trial court summarily
dismissed the petition and ruled that Weston did not have a constitutional right to the effective
assistance of counsel in his post-conviction proceeding. On direct appeal, the Court of Criminal
Appeals affirmed.
Weston sought review, and we granted it. In a per curiam order, we reversed the judgment
of the Court of Criminal Appeals.2 We remanded the case to the trial court for an evidentiary hearing
to determine whether Weston had been denied a first-tier appeal of his first post-conviction petition
as a result of ineffective assistance on the part of appointed counsel.
Before the trial court could conduct a hearing as directed under the remand, Weston filed an
amended petition for post-conviction relief. In this petition, he added two new allegations
concerning trial counsel’s performance. They are: (1) trial counsel failed to move for acquittal on
the armed robbery charge when the proof supported bank robbery only; and (2) trial counsel failed
to raise the issue of variance between the proof and the conviction.
On April 23, 1998, the trial court conducted an evidentiary hearing on the second post-
conviction petition pursuant to this Court’s order of remand. The trial court found that Weston had
been denied an appeal of his first post-conviction petition and allowed him to amend the first post-
conviction petition. The trial court further found that
the grounds alleged in [the] Amended Petition for Post-Conviction
Relief are without merit in that the trial court properly submitted to
the jury for its consideration both the armed robbery count and the
1
523 S.W.2d 9 30 (Tenn. 1975).
2
Westo n v. State, No. 03C01-9209 -CR-00308, 1993 W L 460500, at *1 (Tenn. Nov. 10, 19 93).
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bank robbery count and that trial counsel was not ineffective for
permitting the trial court to do so without objection.
The trial court, therefore, granted Weston a first-tier appeal of his first post-conviction petition and
allowed amendment of this first petition, but denied the relief sought in the amended petition. On
appeal, the Court of Criminal Appeals affirmed the trial court’s determination that Weston had been
deprived of a first-tier appeal but agreed with the State’s contention that the trial court “was not
authorized to entertain [the] amendment.”
We granted Weston’s application for permission to appeal to determine whether, on remand,
the trial court had the authority to permit Weston to amend his first post-conviction petition.
II. Standard of Review
Because the issue before us is a question of law, our review is de novo. State v. Hill, 954
S.W.2d 725, 727 (Tenn. 1997).
III. Analysis
We review this case to determine whether, on remand, the trial court had the authority to
permit Weston to amend his first post-conviction petition. This Court’s order remanding Weston’s
case to the trial court states:
Upon consideration of the application for permission to appeal
and the entire record in this cause, the Court is of the opinion that the
record is inadequate to determine the merit of petitioner’s claim.
The case is remanded to the trial court for an evidentiary
hearing on the issue whether petitioner was denied a first tier appeal
of his original post-conviction petition as a result of inaction on the
part of appointed counsel.
If the trial court finds in the affirmative on this issue an appeal
shall be granted on the original post-conviction petition or, in the
alternative, a new hearing on the petition shall be granted, from which
petitioner shall be entitled to a first tier appeal.
This Court has held that “‘inferior courts must abide the orders, decrees and precedents of
higher courts.’” State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995) (quoting Barger v. Brock, 535
S.W.2d 337, 341 (Tenn. 1976)). Neither a trial court nor an intermediate court has the authority to
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expand the directive or purpose of this Court imposed upon remand.3 Weston contends that this
Court’s order gave the trial court the authority to allow an amendment to his first post-conviction
petition. This Court’s order, however, clearly limited the issue on remand to “whether petitioner was
denied a first-tier appeal of his original post-conviction petition as a result of inaction on the part of
appointed counsel.” The trial court was authorized to address this issue only.
Because this Court’s order limited the issue on remand to whether Weston was denied a first-
tier appeal of his first post-conviction petition, the trial court did not have the authority to permit an
amendment to the first petition. We therefore affirm the judgment of the Court of Criminal Appeals
in holding that Weston was denied a first-tier appeal of his first post-conviction petition. We further
hold that the trial court did not have the authority to permit Weston to amend his petition.
Accordingly, this cause is remanded to the Court of Criminal Appeals for a first-tier appeal of
Weston’s first post-conviction petition. Because of our holding in this case, we do not reach the
additional issues raised by Weston.
IV. Conclusion
Because this Court’s order on remand limited the issue to whether Weston was denied a first-
tier appeal of his first post-conviction petition, the trial court did not have the authority to permit
Weston to amend his first post-conviction petition to allege additional grounds for relief. The
judgment of the Court of Criminal Appeals is, therefore, affirmed, and this case remanded to the
Court of Criminal Appeals for a first-tier appeal of Weston’s first post-conviction petition.
______________________________
ADOLPHO A. BIRCH, JR., JUSTICE
3
See Cook v. McCullough , 735 S.W.2d 464 , 470 (Tenn. Ct. App. 1987).
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