Revail Murphy v. State of Tennessee ( 2021 )

09/09/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 8, 2021
REVAIL MURPHY v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 18-07364 J. Robert Carter, Jr., Judge
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No. W2020-01298-CCA-R3-PC
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The Petitioner, Revail Murphy, pled guilty in two separate cases to aggravated assault and
sexual battery, respectively. The trial court sentenced the Petitioner as a Range III,
persistent offender to a total effective sentence of ten years, to be served at forty-five
percent. On appeal, the Petitioner asserts that he received ineffective assistance of counsel,
contending that his guilty plea for aggravated assault was not “knowingly, voluntarily, and
intelligently entered.” Upon our review, we affirm the judgment of the post-conviction
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and J. ROSS DYER, JJ., joined.
James J. Lee, Memphis, Tennessee, for the Petitioner, Revail Murphy.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Amy Weirich, District Attorney General; and Neil Umsted,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
On December 13, 2018, a Shelby County grand jury indicted the Petitioner for two
counts of convicted felon in possession of a firearm and one count of aggravated assault.
On February 13, 2019, the Petitioner pled guilty to aggravated assault in the instant case
and sexual battery in an unrelated case. The convicted felon in possession of a firearm
charges were dismissed. The trial court sentenced the Petitioner as a Range III, persistent
offender to a total effective sentence of ten years, to be served at forty-five percent. At the
guilty plea hearing, the State summarized the proof that would have been presented for the
aggravated assault charge had the case gone to trial:
[T]he State’s proof would have shown that on or about May 12th of 2018[,]
the victim in this case, Andre Ward, was sitting in the passenger seat of one
of his friend[’]s cars. While waiting to leave[,] he was blocked in, the
[Petitioner] approached him with a gun in his hand and ordered him out of
his car.
The victim got out and started to walk away, when he was about ten to 15
feet away[,] he heard gunshots fired at him[,] so he ran. He was not hit or
injured. He did identify the [Petitioner] in a photo lineup as the person who
approached him and shot at him.
During the Petitioner’s plea colloquy, the trial court asked the Petitioner if he
understood the rights he was waiving by pleading guilty. The Petitioner answered
affirmatively, and he also agreed that his pleas were entered “freely and voluntarily.” He
further affirmed that he had worked with his attorney regarding his guilty plea, that they
had “talked the cases over fully[,]” that he understood and was not confused about his
guilty pleas, that he had not been coerced or forced to make the guilty pleas, and that he
did not have any questions for the trial court. Following the plea colloquy, the trial court
found that the Petitioner’s pleas were “freely and voluntarily entered” and that “[t]he
waiver [wa]s knowingly and intelligently made free from threats or coercion.”
On December 6, 2019, the Petitioner filed a pro se motion for post-conviction relief,
alleging ineffective assistance of counsel. Appointed counsel filed an amended petition on
February 14, 2020. In the amended petition, the Petitioner asserted that he received
ineffective assistance of counsel with respect to his guilty pleas, arguing that his plea was
“not knowing and voluntary[,]” and he only accepted the guilty plea agreement “because
he lacked confidence that his trial counsel would aggressively defend the case[.]” The
State filed a response to the petition the same day, replying that the Petitioner received
effective assistance of counsel and entered knowing and voluntary pleas.
On August 19, 2020, the post-conviction court held an evidentiary hearing on the
amended petition for post-conviction relief. At the hearing, the Petitioner testified that he
did research in the law library while incarcerated and concluded that he had been
“overcharged” after looking at the statutes for aggravated assault and reckless
endangerment. He stated that trial counsel never explained to him the differences between
aggravated assault and reckless endangerment. He further stated that trial counsel did not
discuss sentencing ranges or explain lesser included offenses to him, and trial counsel
allegedly told him that he would “end up [getting] like seventy something years because
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[he] didn’t know nothing about law” if he chose to go to trial. The Petitioner further
contended that trial counsel “did not do what she was supposed to do as far as investigating
or hir[ing] a private investigator.” When asked whether he brought up his concerns with
trial counsel, the Petitioner explained that trial counsel would “blow it off to the side like
it just really wasn’t anything because she thought that [he] was dumbfounded to the law[.]”
He also explained that he was confused by pleading guilty in different cases at the same
time. The Petitioner finally explained that he told the trial court that he understood his
guilty pleas because he was “kind of nervous and afraid” and “really didn’t know what [he]
was signing[.]”
On cross-examination, the Petitioner conceded that he knew what he was charged
with and “how much time [he was] getting” when he signed his guilty plea agreement. He
further testified that he did not complain about trial counsel’s representation during his plea
colloquy because he “was afraid.”
Trial counsel testified that she had been employed with the public defender’s office
for eight years and exclusively practiced criminal law. She explained that the victim in the
aggravated assault case was a “reluctant witness[,]” and another witness, who was dating
the Petitioner and the victim, was “not going to be a cooperative witness.” She affirmed
that she went over the discovery with the Petitioner, and she was “satisfied th[at] the
aggravated assault was an appropriate charge[.]” She stated that she met with the Petitioner
“at least three times in jail . . . possibly more” and saw him at his numerous court dates.
Trial counsel agreed that she was “able to communicate effectively” with the Petitioner.
She testified that an investigator had taken statements from four witnesses immediately
after the Petitioner waived his preliminary hearing. Trial counsel explained that the
Petitioner’s plea agreement had been discussed in “pretty great length” with him because
there was “a lot of going back and forth” with the State. She further explained that although
there were “communication barriers” due to the Petitioner’s mental illness and intellectual
disability, she ultimately felt that “he had decided that taking this offer was better for him
than proceeding to trial on his three cases.” Trial counsel stated that she would not have
allowed the Petitioner to move forward with his guilty pleas if she felt he did not understand
what he was doing and was being coerced.
On cross-examination, trial counsel reiterated that an investigator interviewed the
people the State was going to call as witnesses. She testified that she discussed “the results
of that investigation” with the Petitioner, and he understood. She further explained that it
was “difficult for [the Petitioner] to wrap his mind around” the fact that the prosecutor was
proceeding with the case despite the victim’s desire not to prosecute. Trial counsel stated
that she discussed with the Petitioner the difference between aggravated assault and
reckless endangerment, and she told him that she believed the State would be able to prove
aggravated assault if the case went to trial. She agreed that there were several guilty pleas
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handled by different attorneys in different courtrooms on the same day, which could have
been confusing to the Petitioner, but she “ultimately fe[lt a]s though he understood his
options[] and chose to take that offer.”
When questioned by the post-conviction court, trial counsel clarified that all of the
Petitioner’s pleas were negotiated as part of a “package[,]” and the Petitioner could not
choose to accept only one of the agreements but instead had to plead to everything in order
to accept any of the agreements. The plea package included an agreement to reduce an
aggravated sexual battery charge to sexual battery sentenced as time served. She agreed
that there was a possibility of consecutive sentencing if the Petitioner’s cases had gone to
trial.
On September 16, 2020, the post-conviction court entered a written order denying
relief. In the order, the post-conviction court found that there was “no evidence that [trial]
counsel’s performance was deficient[,]” and “[t]he guilty plea was entered knowingly,
intelligently[,] and voluntarily with the assistance of competent counsel.” The court further
found that the Petitioner “has had a change of heart and now wants to change his mind[,]”
despite testifying at his plea colloquy that he understood the plea agreement, did not have
any questions, and had fully discussed his cases with his attorneys. The Petitioner filed a
timely notice of appeal on September 21, 2020, and this case is now properly before this
court for review.
ANALYSIS
On appeal, the Petitioner asserts that the trial court “abused its discretion in finding
that the Petitioner received effective assistance of counsel when [the] Petitioner
demonstrated that his guilty plea was not knowingly, voluntarily, and intelligently
entered.” The Petitioner specifically contends that he would “not have entered such a plea”
if he had understood “the difference between aggravated assault and reckless
endangerment[.]” The State responds that the Petitioner has not “overcome the strong
presumption that his plea was entered knowingly intelligently, and voluntarily[.]” We
agree with the State.
Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. Tenn.
Code Ann. § 40-30-103 (2006). The Tennessee Supreme Court has held:
A post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. When reviewing factual issues, the
appellate court will not re-weigh or re-evaluate the evidence; moreover,
factual questions involving the credibility of witnesses or the weight of their
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testimony are matters for the trial court to resolve. The appellate court’s
review of a legal issue, or of a mixed question of law or fact such as a claim
of ineffective assistance of counsel, is de novo with no presumption of
correctness.
Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation marks
omitted); Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010); see Felts v. State, 354
S.W.3d 266, 276 (Tenn. 2011). A post-conviction petitioner has the burden of proving the
factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f);
Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
Evidence is considered clear and convincing when there is no serious or substantial doubt
about the accuracy of the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562
(Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983
S.W.2d 240, 245 (Tenn. Crim. App. 1998).
The right of a person accused of a crime to representation by counsel is guaranteed
by both the Sixth Amendment to the United States Constitution and article I, section 9, of
the Tennessee Constitution. Both the United States Supreme Court and this Court have
recognized that this right to representation encompasses the right to reasonably effective
assistance, that is, within the range of competence demanded of attorneys in criminal cases.
Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted). In order to prevail
on an ineffective assistance of counsel claim, a petitioner must establish that (1) his
lawyer’s performance was deficient and (2) the deficient performance prejudiced the
defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984); Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency or prejudice
provides a sufficient basis to deny relief on the ineffective assistance claim. Indeed, a court
need not address the components in any particular order or even address both if the
[petitioner] makes an insufficient showing of one component.” Goad v. State, 938 S.W.2d
363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).
A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard
of reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466
U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once
the petitioner establishes “‘a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.’” Id. at 370(quoting Strickland, 466 U.S. at 694). In order to satisfy the “prejudice” requirement in
the context of a guilty plea, the petitioner must show that, but for counsel’s errors, he would
not have entered his guilty plea and would have proceeded to trial. Serrano v. State, 133
S.W.3d 599, 605 (Tenn. 2004) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Finally,
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as relevant to the issues herein, the Tennessee Supreme Court has held that “[f]ailure to
conduct a reasonable investigation constitutes deficient performance.” State v. Burns, 6
S.W.3d 453, 462 (Tenn. 1999).
Counsel must conduct appropriate investigations, both factual and legal, to
determine what matters of defense can be developed. The Supreme Court
has noted that the adversary system requires that “all available defenses are
raised” so that the government is put to its proof. . . . And, of course, the
duty to investigate also requires adequate legal research.
Baxter, 523 S.W.2d at 932-33 (quoting United States v. DeCoster, 487 F.2d 1197, 1203-
04 (D.C. Cir. 1973)). In any ineffective assistance of counsel case, however, “a particular
decision not to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgments.” Burns, 6
S.W.3d at 462 (quoting Strickland, 466 U.S. at 691).
We note that “[i]n evaluating an attorney’s performance, a reviewing court must be
highly deferential and should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d
453, 462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular set
of detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding how
best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However, we note
that this “‘deference to matters of strategy and tactical choices applies only if the choices
are informed ones based upon adequate preparation.’” House v. State, 44 S.W.3d 508, 515
(Tenn. 2001) (quoting Goad, 938 S.W.2d at 369).
The validity of a guilty plea is a mixed question of law and fact that is reviewed de
novo. Lane, 316 S.W at 562. To be valid, a guilty plea must be entered knowingly,
voluntarily, and intelligently. Id. (citing State v. Mackey, 553 S.W.2d 337, 340 (Tenn.
1977) superseded on other grounds by rules as stated in State v. Wilson, 31 S.W.3d 189,
193 (Tenn. 2000); North Carolina v. Alford, 400 U.S. 25, 31 (1970); Brady v. United
States, 397 U.S. 742, 747 (1970); Boykin v. Alabama, 395 U.S. 238, 242-44 (1969)).
“[T]he record of acceptance of a defendant’s plea of guilty must affirmatively demonstrate
that his decision was both voluntary and knowledgeable, i.e., that he has been made aware
of the significant consequences of such a plea[.]” Mackey, 553 S.W.2d at 340; See Tenn.
R. Crim. P. 11(b)(1). When determining whether a guilty plea was knowingly, voluntarily,
and intelligently entered, the court must consider “‘whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the defendant.’”
Lane, 316 S.W.3d at 562 (quoting Grindstaff, 297 S.W.3d at 218). If a guilty plea is not
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knowingly, voluntarily, and intelligently entered, then the defendant has been denied due
process, and the guilty plea is void. Id. (citations omitted).
Applying the above law to the instant case, we conclude that the Petitioner is not
entitled to relief. In the context of a guilty plea, trial counsel’s effectiveness is only relevant
to the extent that it affects the voluntariness of the plea. Ford v. State, No. E2018-00702-
CCA-R3-PC, 2019 WL 1220790, at *3 (Tenn. Crim. App. Mar. 14, 2019). In the instant
case, the Petitioner asserts that his pleas were not knowing and voluntary because he did
not understand the difference between aggravated assault and reckless endangerment. He
further references his previous statements that trial counsel did not go over discovery with
him, failed to investigate the case, and failed to advise him on his package plea deal as
evidence of his “complete lack of understanding regarding all aspects of this agreement.”
In denying the petition, the post-conviction court found that trial counsel had
“conducted an investigation, met with [the] Petitioner to discuss the results, and presented
him with the State’s offer to dispose of all his cases. [The] Petitioner chose to accept it.”
The trial court implicitly accredited trial counsel’s testimony over the Petitioner’s. The
court further found that the Petitioner’s “assertions, now, that his attorney was somehow
responsible for his decisions to plead guilty [are] simply not supported by credible
evidence.” The record reflects that the Petitioner understood the terms of his plea
agreement when he entered the plea. At the guilty plea hearing, the Petitioner indicated
that he understood the agreement, did not have any questions, had fully discussed the
agreement with his attorney, and was not being forced to plead guilty. At the post-
conviction hearing, trial counsel testified that she had gone over the agreement and
discovery with the Petitioner, had visited him at least three times in jail and several more
times at his multiple court hearings, and had investigated his case. She further testified
that she and the Petitioner discussed the difference between aggravated assault and reckless
endangerment, and she believed that the State would be able to prove aggravated assault at
trial, which carried a possible sentence of fifteen years based on the Petitioner’s Range III,
persistent offender classification. Nothing in the record suggests that trial counsel’s advice
regarding the Petitioner entering guilty pleas constituted ineffective assistance. Because
the Petitioner has failed to establish deficient performance, he is not entitled to relief.
CONCLUSION
Based upon the foregoing reasoning and analysis, we affirm the judgment of the
post-conviction court.
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CAMILLE R. MCMULLEN, JUDGE
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