Background
Roy Robinson was convicted in Shelby County Criminal Court of second-degree murder and aggravated assault and received an effective twenty-year sentence at 100%. The Tennessee Court of Criminal Appeals affirmed on direct appeal in 2017, and the Tennessee Supreme Court denied permission to appeal. Robinson subsequently filed a timely pro se petition for post-conviction relief raising nine claims of ineffective assistance of counsel. Post-conviction counsel was appointed, and after years of procedural delays—including the COVID-19 pandemic—counsel filed an amended petition. Robinson also attempted to file multiple pro se amended petitions, the substance of which post-conviction counsel declined to adopt in full.
An evidentiary hearing was held over two days in July 2022. Robinson testified about alleged deficiencies in trial counsel’s handling of gang-affiliation evidence, the motion to suppress his statement to police, the self-defense theory, and the decision not to call him as a witness. Trial counsel, a 28-year veteran of the Public Defender’s Office, testified that her strategic choices—including relying on Robinson’s existing statement to present the self-defense theory rather than having him testify, and avoiding a 404(b) hearing to minimize jury focus on gang ties—were deliberate and reasoned.
On November 7, 2024, the post-conviction court denied relief, finding counsel’s key decisions were valid strategic choices and that Robinson failed to demonstrate prejudice on the remaining claims. Robinson, still represented by appointed counsel at the time, filed a pro se notice of appeal dated December 17, 2024—eleven days late under Tennessee’s 30-day deadline. No notice of appeal was ever filed by counsel. After a series of procedural orders regarding representation on appeal, new appellate counsel was appointed and briefing proceeded, but the jurisdictional defect was never cured by the filing of a proper notice of appeal.
The Court’s Holding
The court dismissed the appeal for lack of jurisdiction without reaching the merits of any ineffective assistance claim. The court held that Robinson’s pro se notice of appeal, filed while he was still represented by appointed post-conviction counsel, was a legal nullity. Under longstanding Tennessee law, a defendant may not simultaneously exercise the right to counsel and the right to self-representation; pro se filings made while counsel of record remains appointed have no legal effect. Because the nullified notice of appeal was the only initiating document ever filed, no valid notice of appeal existed in the case.
The court further held that although Tennessee Rule of Appellate Procedure 4(a) and Tennessee Code Annotated § 27-1-123 permit waiver of the timely filing of a notice of appeal in the interest of justice in criminal cases, neither provision authorizes a court to assume jurisdiction where no valid notice of appeal has been filed at all. The 2017 amendment to Rule 4(a)—adding the word “timely” to the waiver clause—confirmed that only the timeliness requirement is subject to waiver; the notice of appeal itself remains an indispensable prerequisite to appellate jurisdiction. Where the parties have never invoked the court’s jurisdiction by filing a proper notice, the court cannot confer it upon itself.
The court also rejected Robinson’s argument that his pro se filing should be treated as a mere “administrative act of preservation.” Because appellate counsel was subsequently appointed and never filed a notice of appeal even after the court raised the jurisdictional issue at oral argument, the defect remained uncured. Jurisdiction never attached, and dismissal was required.
Key Takeaways
- A pro se notice of appeal filed by a represented party is a legal nullity under Tennessee law and does not invoke appellate jurisdiction, regardless of its timeliness or the petitioner’s diligent intent.
- Tennessee Rule of Appellate Procedure 4(a) and T.C.A. § 27-1-123 authorize waiver of the timely filing of a notice of appeal in criminal cases—not waiver of the notice of appeal requirement itself; a court cannot assume jurisdiction where no valid initiating document exists.
- Appointed post-conviction counsel’s obligation to represent an indigent petitioner extends through the first appeal of right, and failure to file a notice of appeal on behalf of the client can forfeit the entire appeal with no remedy from the appellate court.
- When an appellate court raises a jurisdictional concern at oral argument, counsel must act promptly to cure the defect; failing to file a notice of appeal even after the issue is flagged will result in dismissal.
Why It Matters
This decision underscores a critical trap for post-conviction petitioners in Tennessee: the simultaneous-representation bar operates as an absolute rule, not merely a procedural preference. A petitioner who files a pro se notice of appeal out of an abundance of caution—while counsel of record has not yet formally withdrawn—may inadvertently forfeit the entire appeal if appointed counsel later fails to file a proper notice. The case illustrates that the interest-of-justice waiver for untimely notices cannot rescue an appeal when no legally cognizable notice was ever filed.
For practitioners, the case is a reminder that appointed post-conviction counsel’s duties do not end at the trial court’s denial order. Counsel must either file a timely notice of appeal or formally withdraw before the client or successor counsel can act. The court’s analysis of the 2017 amendment to Rule 4(a) also provides useful clarification on the precise scope of Tennessee’s notice-of-appeal waiver doctrine, drawing a clear line between tardiness (waivable) and absence (fatal).