Gerald W. McCullough v. State of Tennessee

The Defendant, Gerald W. McCullough, was convicted of aggravated sexual battery. This Court affirmed the Defendant's conviction on direct appeal. See State v. Gerald W. McCullough, No. M1999-01525-CCA-R3-CD, 2000 WL 1246432, at *1 (Tenn. Crim. App., Nashville, Aug. 18, 2000). The Defendant was represented at trial by the Public Defender's Office. On direct appeal, the Defendant was represented by Nashville attorney John E. Herbison. After the Defendant's conviction was affirmed on direct appeal, the Defendant filed for post-conviction relief. In this effort, the Defendant was again represented by John E. Herbison. The trial court, on its own motion, conducted an evidentiary hearing with respect to the conflict of interest inherent in Mr. Herbison's representation of the Defendant on post-conviction following his representation of the Defendant on direct appeal. Following the hearing, the trial court ordered Mr. Herbison removed from his representation of the Defendant on post-conviction, and further ordered Mr. Herbison to return the entire retainer fee he had been paid in conjunction with the post-conviction proceeding. The trial court's ruling is now before this Court pursuant to an interlocutory appeal. See Tenn. R. App. P. 9. We affirm the trial court's order removing Mr. Herbison from further representation of the Defendant in this case. We remand the trial court's ruling regarding the refund of Mr. Herbison's fee for further proceedings.