Mario Johnson v. State of Tennessee ( 2017 )


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  •                                                                                           01/17/2017
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    Assigned on Briefs December 6, 2016
    MARIO JOHNSON v. STATE OF TENNESSEE
    Appeal from the Criminal Court for Shelby County
    No. 11-00492       James C. Beasley, Jr., Judge
    ___________________________________
    No. W2015-02498-CCA-R3-PC
    ___________________________________
    Mario Johnson (“the Petitioner”) entered an open guilty plea to five counts of aggravated
    assault. The trial court sentenced the Petitioner to an effective sentence of thirty years in
    the Department of Correction. The Petitioner filed a petition for post-conviction relief
    arguing that he received ineffective assistance of counsel and that he entered his guilty
    plea unknowingly and involuntarily. The post-conviction court denied relief after a
    hearing. On appeal, we affirm the post-conviction court’s denial of relief.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
    ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which NORMA
    MCGEE OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.
    Monica A. Timmerman, Memphis, Tennessee, for the appellant, Mario Johnson.
    Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
    Counsel; Amy P. Weirich, District Attorney General; and Stacy McEndree, Assistant
    District Attorney General, for the appellee, State of Tennessee.
    OPINION
    I. Factual and Procedural Background
    Guilty Plea Submission & Sentencing Hearings
    As summarized in this court’s opinion from the Petitioner’s direct appeal, the State
    set forth the following facts supporting its proof at the guilty plea hearing:
    Had the matter gone to trial, the State submits that the proof would
    have shown that on or about June 23rd of 2010[,] the [Petitioner] . . .
    confronted a Mr. Terry Ward about a debt for some marijuana that had not
    been paid.
    At that point, the two of them had verbally argued and exchanged
    blows physically. [The Petitioner] left, came back about a half hour later[,]
    . . . and fired shots at that residence. There were multiple shots fired.
    At that point, there were five people on the porch outside of that
    house[:] an Odarian Danish[;] Christopher Danish[;] Raphael Danish[;]
    Terry Ward [;] and a Darren Anderson. They were all standing under the
    carport. They all ducked for cover and tried to get out of the way.
    Odarian Danish, who had just gotten back from the Navy, was hit
    more than once and was hit in the neck[—][a] through[-]and[-]through
    shot. He was hit in the chest[,] and he remained in critical condition in the
    hospital for a period of about two weeks prior to being released.
    Odarian Danish did not know the [Petitioner], but [the Petitioner]
    was identified by Terry Ward, Odarian Danish, [and] Christopher Danish.
    State v. Mario Johnson, No. W2012-02566-CCA-R3-CD, 
    2013 WL 6052873
    , at *1
    (Tenn. Crim. App. Nov. 15, 2013), perm. app. denied (Tenn. Apr. 9, 2014). During the
    plea colloquy, the Petitioner agreed that he had discussed entering an open plea with trial
    counsel and that he understood the consequences of such a plea. The Petitioner also
    agreed that he understood the charges against him. Initially, both trial counsel and the
    prosecutor stated that they believed that the Petitioner was a career offender. The
    prosecutor then stated that because some of the Petitioner’s convictions were from other
    states it was possible that the Petitioner was a Range III persistent offender. The trial
    court explained that, if the Petitioner was found to be a Range III persistent offender, he
    could be sentenced to ten to fifteen years with a forty-five percent release eligibility for
    each count. The trial court also explained that, if the Petitioner was found to be a career
    offender, he could be sentenced to fifteen years with a sixty percent release eligibility on
    each count. The Petitioner confirmed that he had a right to proceed to trial, to confront
    the State’s witnesses, to testify, and to appeal and that he understood that he was waiving
    those rights. Additionally, the Petitioner agreed that he was satisfied with trial counsel’s
    representation. The trial court held that the Petitioner knowingly and voluntarily entered
    his guilty plea.
    -2-
    At the sentencing hearing,1 the trial court sentenced the Petitioner as a Range III
    persistent offender to fifteen years for each count of aggravated assault. 
    Id. at *2.
    The
    trial court found that the Petitioner had an extensive criminal history and was a dangerous
    offender and ordered the sentences for count one and count five to be served
    consecutively. 
    Id. The trial
    court ordered the sentences for the remaining counts to be
    served concurrently with count one for an effective sentence of thirty years with a forty-
    five percent release eligibility in the Department of Correction. 
    Id. This court
    affirmed
    the judgments of the trial court. 
    Id. at *4.
    Our supreme court denied further review.
    Post-Conviction Proceedings
    The Petitioner filed a timely petition for post-conviction relief. At the post-
    conviction hearing, trial counsel testified that he had practiced criminal defense for
    twenty-three years and that he had worked at the public defender’s office for the last
    twelve years. Trial counsel stated that he met with the Petitioner many times at court
    dates and met with the Petitioner in jail after the Petitioner’s case was set for trial. Trial
    counsel noted that, when he first reviewed the Petitioner’s case, he believed that the
    Petitioner could be sentenced as a career offender. Trial counsel testified that the
    Petitioner was initially not interested in accepting the State’s plea offer of nine years for
    each count to be served concurrently with a thirty-five percent release eligibility.
    After the Petitioner was charged with attempted second degree murder in an
    unrelated case, the State withdrew its original plea offer. The State then offered a plea of
    twenty years and later offered a plea of twenty-five years. Trial counsel stated that the
    Petitioner was convinced that he would be acquitted of the attempted second degree
    murder charge and that the Petitioner gave trial counsel “different details” about the
    aggravated assault charges. However, trial counsel stated that he did not believe that the
    Petitioner “had a real [sic] good chance of winning[]” based on the evidence, which
    included a tape-recorded telephone call. On the tape-recorded call, the Petitioner could
    be heard telling the call recipient that the individual that the Petitioner shot would not be
    at his trial. Trial counsel advised the Petitioner that his chances of being acquitted at trial
    were low, but at this point the Petitioner’s case had been set for trial and the State had
    withdrawn all plea offers. Trial counsel testified that he advised the Petitioner that “the
    options he had available at that time were to go to trial . . . [in Division 9] where [trial
    counsel] thought that he did not have a chance to win at all[]” or enter an open plea in
    Division 10. However, trial counsel stated that he gave this advice while still incorrectly
    believing that the Petitioner was a career offender. Trial counsel advised the Petitioner
    1
    A transcript of the sentencing hearing was not included in the record of the post-conviction
    appeal, but this court’s opinion from the Petitioner’s direct appeal summarized the Petitioner’s sentencing
    hearing.
    -3-
    about the different ways the trial court could run the sentences, such as consecutively or
    concurrently.
    On cross-examination, trial counsel stated that he believed that the Petitioner’s
    case was not a good case to proceed to trial because of the evidence against the
    Petitioner, including the victims’ testimony and the tape-recorded call. Trial counsel
    testified that the Petitioner did not accept the State’s initial offer of nine years because
    “he didn’t believe that the [victims] were going to show up and testify against him.”
    Trial counsel stated that he advised his clients strongly on whether or not to accept a plea
    offer, but he never forced his clients to accept plea deals. Trial counsel stated that he
    advised the Petitioner regarding the positive and negative aspects of accepting a plea
    offer and also explained the Petitioner’s sentencing range. Trial counsel also explained to
    the Petitioner how having his case transferred to a different trial court would affect his
    chances at the sentencing stage. Trial counsel relied on his experience practicing in
    Division 9 to inform the Petitioner that he might receive an effective sentence of seventy-
    five years as a career offender if the Petitioner proceeded to trial and his case was
    transferred from Division 10 to Division 9. Trial counsel testified that when the trial
    court opined that the Petitioner was a Range III persistent offender at the plea submission
    hearing, trial counsel stated on the record that the Petitioner might want to withdraw his
    open plea based on that new information.
    The Petitioner testified that he did not want the opportunity to proceed to trial if
    the post-conviction court granted relief but instead he wanted his sentences to be run
    concurrently. The Petitioner testified that he understood that if the post-conviction court
    granted him relief he would have the opportunity to proceed to trial, and the State may
    not make a plea offer. The Petitioner stated that, at the plea submission hearing, trial
    counsel informed the trial court that the State was no longer making a plea offer but that
    the Petitioner wanted to enter an open plea, which trial counsel advised against. The
    Petitioner stated that trial counsel then advised him against proceeding to trial. The
    Petitioner testified that he did not reject the State’s original plea offer but that he told trial
    counsel he wanted to see if the State would reduce four of the aggravated assault counts
    to reckless endangerment because “only one guy got hit in the incident.” However, the
    State declined to reduce any of the charges and withdrew its original plea offer. The
    Petitioner testified that, after he posted bond in the current case, he was charged with
    other crimes not related to the current charges and returned to custody. The Petitioner
    stated that the tape-recorded call referred to one victim’s decision to drop the charges, not
    the Petitioner’s attempt to “intimidate the witness or tell him not to come to court.”
    The Petitioner testified that at the Petitioner’s report date on August 20, 2012, trial
    counsel advised against entering an open plea. The Petitioner stated that he was “willing
    to accept the nine years deal” on that report date, but trial counsel informed him that the
    -4-
    State had withdrawn that offer. The Petitioner testified that trial counsel advised him
    about how the trial courts in the different judicial divisions might sentence him if he
    proceeded to trial and was convicted. The Petitioner stated that trial counsel told him that
    if he entered an open plea in Division 10, he would receive an effective sentence of
    fifteen years. The Petitioner also testified that trial counsel advised him that if the
    Petitioner proceeded to trial in Division 9 and was convicted, the Petitioner would likely
    receive an effective sentence of seventy-five years. The Petitioner agreed that the trial
    court explained during the plea colloquy that the trial court could run his sentences
    consecutively or concurrently. The Petitioner also stated that trial counsel informed him
    that if he proceeded to trial, he “would have no shot of winning.”
    On cross-examination, the Petitioner stated that he set his case for trial because he
    “was informed by the victims that they [were] no longer going to prosecute [him].”
    However, the Petitioner agreed that the victims appeared at his preliminary hearing in
    general sessions court. The Petitioner also agreed that he had several opportunities from
    February until May 2011 to accept the State’s nine-year offer at report dates, but he did
    not. The Petitioner agreed that trial counsel advised against entering an open plea on the
    Petitioner’s August 20, 2012 report date because trial counsel had recently received the
    tape-recorded call and trial counsel wanted to give the Petitioner an opportunity to listen
    to the recording before entering an open plea. On redirect examination, the Petitioner
    stated that he would not have entered the open guilty plea if he had understood that he
    could have received an effective sentence of thirty years.
    The post-conviction court noted that, at the sentencing hearing, trial counsel asked
    the trial court to sentence the Petitioner to ten years on probation. The post-conviction
    court also noted that both trial counsel and the State believed that the Petitioner was a
    career offender at the sentencing hearing. The post-conviction court found that the
    Petitioner “entered his plea freely and voluntarily and [with] full knowledge of what the
    possibilities were.” The post-conviction court implicitly accredited trial counsel’s
    testimony and stated that the Petitioner could have received ten years on probation in a
    “best case scenario,” or the Petitioner could have been sentenced to seventy-five years as
    trial counsel informed the Petitioner. The post-conviction court found that trial counsel
    “thoroughly” represented the Petitioner, that the proof against the Petitioner was
    “overwhelmingly strong[,]” and that the likelihood that the Petitioner would be convicted
    at trial was “probably extremely high.” The post-conviction court concluded that the
    Petitioner had not met the burden of proof and denied relief. This timely appeal
    followed.
    -5-
    II. Analysis
    On appeal, the Petitioner argues that “due to the advice [trial counsel] afforded
    [the Petitioner], [the Petitioner’s] plea was involuntar[y] as it was the product of
    ignorance and incomprehension.” The Petitioner also argues that trial counsel’s deficient
    representation prejudiced him because “trial counsel had offered [the Petitioner]
    assurances that he would not be sentenced to more than fifteen (15) years, and but for
    those assurances he would not have entered the guilty plea.” The State contends that the
    evidence does not preponderate against the post-conviction court’s findings that trial
    court’s performance was not deficient and that the Petitioner’s plea was knowing and
    voluntary.
    Standard of Review
    In order to prevail on a petition for post-conviction relief, a petitioner must prove
    all factual allegations by clear and convincing evidence. Jaco v. State, 
    120 S.W.3d 828
    ,
    830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
    fact. See Fields v. State, 
    40 S.W.3d 450
    , 458 (Tenn. 2001). Appellate courts are bound
    by the post-conviction court’s factual findings unless the evidence preponderates against
    such findings. Kendrick v. State, 
    454 S.W.3d 450
    , 457 (Tenn. 2015). When reviewing
    the post-conviction court’s factual findings, this court does not reweigh the evidence or
    substitute its own inferences for those drawn by the post-conviction court. Id.; 
    Fields, 40 S.W.3d at 456
    (citing Henley v. State, 
    960 S.W.2d 572
    , 578 (Tenn. 1997)). Additionally,
    “questions concerning the credibility of the witnesses, the weight and value to be given
    their testimony, and the factual issues raised by the evidence are to be resolved by the
    [post-conviction court].” 
    Fields, 40 S.W.3d at 456
    (citing 
    Henley, 960 S.W.2d at 579
    );
    see also 
    Kendrick, 454 S.W.3d at 457
    . The post-conviction court’s conclusions of law
    and application of the law to factual findings are reviewed de novo with no presumption
    of correctness. 
    Kendrick, 454 S.W.3d at 457
    .
    Ineffective Assistance of Counsel
    The right to effective assistance of counsel is safeguarded by the Constitutions of
    both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
    art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
    a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
    deficiency prejudiced the defense. Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984);
    see State v. Taylor, 
    968 S.W.2d 900
    , 905 (Tenn. Crim. App. 1997) (stating that the same
    standard for ineffective assistance of counsel applies in both federal and Tennessee
    cases). Both factors must be proven in order for the court to grant post-conviction relief.
    
    Strickland, 466 U.S. at 687
    ; 
    Henley, 960 S.W.2d at 580
    ; Goad v. State, 
    938 S.W.2d 363
    ,
    -6-
    370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
    no need to consider the other factor. Finch v. State, 
    226 S.W.3d 307
    , 316 (Tenn. 2007)
    (citing Carpenter v. State, 
    126 S.W.3d 879
    , 886 (Tenn. 2004)). Additionally, review of
    counsel’s performance “requires that every effort be made to eliminate the distorting
    effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
    and to evaluate the conduct from counsel’s perspective at the time.” 
    Strickland, 466 U.S. at 689
    ; see also 
    Henley, 960 S.W.2d at 579
    . We will not second-guess a reasonable trial
    strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
    tactical decision. Granderson v. State, 
    197 S.W.3d 782
    , 790 (Tenn. Crim. App. 2006).
    As to the first prong of the Strickland analysis, “counsel’s performance is effective
    if the advice given or the services rendered are within the range of competence demanded
    of attorneys in criminal cases.” 
    Henley, 960 S.W.2d at 579
    (citing Baxter v. Rose, 
    523 S.W.2d 930
    , 936 (Tenn. 1975)); see also 
    Goad, 938 S.W.2d at 369
    . In order to prove that
    counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
    were so serious as to fall below an objective standard of reasonableness under prevailing
    professional norms.” 
    Goad, 938 S.W.2d at 369
    (citing 
    Strickland, 466 U.S. at 688
    ); see
    also 
    Baxter, 523 S.W.2d at 936
    .
    Even if counsel’s performance is deficient, the deficiency must have resulted in
    prejudice to the defense. 
    Goad, 938 S.W.2d at 370
    . Therefore, under the second prong
    of the Strickland analysis, the petitioner “must show that there is 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. (quoting Strickland,
    466 U.S. at 694) (internal quotation marks
    omitted).
    A substantially similar two-prong standard applies when the petitioner challenges
    counsel’s performance in the context of a guilty plea. Hill v. Lockhart, 474 U.S.52, 58
    (1985); Don Allen Rodgers v. State, No. W2011-00632-CCA-R3-PC, 
    2012 WL 1478764
    ,
    at *4 (Tenn. Crim. App. Apr. 26, 2012). First, the petitioner must show that his counsel’s
    performance fell below the objective standards of reasonableness and professional norms.
    See 
    Hill, 474 U.S. at 58
    . Second, “in order to satisfy the ‘prejudice’ requirement, the
    [petitioner] must show that there is a reasonable probability that, but for counsel’s errors,
    he would have not have pleaded guilty and would have insisted on going to trial.” 
    Id. at 59.
    Unknowing and Involuntary Guilty Plea
    Whether a guilty plea is intelligent and voluntary is a mixed question of law and
    fact.   
    Jaco, 120 S.W.3d at 830-31
    . Therefore, in such cases we review the post-
    -7-
    conviction court’s findings of fact de novo with a presumption of correctness. 
    Id. The post-conviction
    court’s findings of law are reviewed purely de novo. 
    Id. Counsel’s effectiveness
    may implicate the requirement that a plea must be entered
    knowingly and voluntarily, i.e., that the petitioner made the choice to plead guilty after
    being made aware of the significant consequences of such a plea. State v. Pettus, 
    986 S.W.2d 540
    , 542 (Tenn. 1999). When reviewing a guilty plea, this court looks to both the
    federal standard as announced in the landmark case Boykin v. Alabama, 
    395 U.S. 238
    (1969), and the state standard as announced in State v. Mackey, 
    553 S.W.2d 337
    (Tenn.
    1977), superseded on other grounds by Tenn. R. Crim. P. 37(b) and Tenn. R. App. P.
    3(b). Don Allen Rodgers, 
    2012 WL 1478764
    , at *5. Under the federal standard, there
    must be an affirmative showing that the plea was “intelligent and voluntary.” 
    Boykin, 395 U.S. at 242
    . Likewise, the Tennessee Supreme Court has held that “the 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
    . “[A] plea is
    not ‘voluntary’ if it is the product of ‘[i]gnorance, incomprehension, coercion, terror,
    inducements, [or] subtle or blatant threats . . . .” Blankenship v. State, 
    858 S.W.2d 897
    ,
    904 (Tenn. 1993) (quoting 
    Boykin, 395 U.S. at 242
    -43). A reviewing court must
    examine the totality of the circumstances to determine if a guilty plea was knowing and
    voluntary. State v. Turner, 
    919 S.W.2d 346
    , 353 (Tenn. Crim. App. 1995).
    In order to determine whether a plea is intelligent and voluntary, the trial court
    must “canvass[] the matter with the accused to make sure he has a full understanding of
    what the plea connotes and of its consequence.” 
    Boykin, 395 U.S. at 244
    . The trial court
    looks to several factors before accepting a plea, including:
    [T]he relative intelligence of the defendant; degree of his familiarity with
    criminal proceedings; whether he was represented by competent counsel
    and had the opportunity to confer with counsel about the options available
    to him; the extent of advice from counsel and the court concerning the
    charges against him; and the reasons for his decision to plead guilty,
    including a desire to avoid a greater penalty that might result from a jury
    trial.
    
    Blankenship, 858 S.W.2d at 904
    ; Howell v. State, 
    185 S.W.3d 319
    , 330-31 (Tenn. 2006).
    Once the trial court has conducted a proper plea colloquy, it discharges its duty to assess
    the voluntary and intelligent nature of the plea and creates an adequate record for any
    subsequent review. 
    Boykin, 395 U.S. at 244
    .
    -8-
    Statements made by a petitioner, his attorney, and the prosecutor during the plea
    colloquy, as well as any findings made by the trial court in accepting the plea, “constitute
    a formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison,
    
    431 U.S. 63
    , 73-74 (1977). Statements made in open court carry a strong presumption of
    truth, and to overcome such presumption, a petitioner must present more than
    “conclusory allegations unsupported by specifics.” 
    Id. at 74.
    In the current case, the record supports the post-conviction court’s conclusions that
    the Petitioner failed to prove that trial counsel was ineffective or that the Petitioner had
    been prejudiced by trial counsel’s representation. Trial counsel testified that he advised
    the Petitioner that he could receive a maximum sentence of seventy-five years as a career
    offender. While the trial court sentenced the Petitioner as a Range III persistent offender
    at the sentencing hearing, trial counsel still accurately advised the Petitioner of the
    maximum sentence that he was facing. See Tenn. Code Ann. § 40-35-112(c)(3). Trial
    counsel also testified that the Petitioner did not accept the State’s initial plea offer of nine
    years with a thirty-five percent release eligibility for each count to be served concurrently
    because the Petitioner hoped that the State would reduce some of the charges. Despite
    the Petitioner’s assertions that the victims would not have testified against him at trial,
    the post-conviction court found that the evidence against the Petitioner was
    “overwhelmingly strong” and that the likelihood that the Petitioner would be convicted at
    trial was “probably extremely high.” The Petitioner contends that trial counsel assured
    him the trial court in Division 10 would give the Petitioner an effective sentence of
    fifteen years; however, the post-conviction court implicitly accredited trial counsel’s
    testimony as truthful. Trial counsel testified that he advised the Petitioner on the
    different ways that the trial court in Division 10 could run his sentence if the Petitioner
    entered an open plea in Division 10. The post-conviction court found that trial counsel’s
    performance was not deficient and that the evidence does not preponderate against the
    post-conviction court’s findings. We need not address whether the Petitioner was
    prejudiced because the Petitioner has not established that trial counsel’s performance was
    deficient. See 
    Finch, 226 S.W.3d at 316
    .
    The plea submission hearing transcript shows that the trial court conducted a
    thorough Tennessee Rule of Criminal Procedure 11(b) colloquy with the Petitioner and
    accepted the Petitioner’s plea as knowingly and voluntarily entered. The Petitioner’s
    wish for reduced charges and his extensive criminal record show that he was familiar
    with the plea negotiating and sentencing stages of a criminal prosecution. The Petitioner
    has failed to present more than “conculsory allegations unsupported by specifics” to
    overcome the presumption that the Petitioner understood the potential sentencing ranges
    associated with his charges, as he stated at his guilty plea submission hearing.
    
    Blackledge, 431 U.S. at 74
    . The evidence in the record supports the trial court’s
    conclusion that the Petitioner was aware of the sentences he faced whether he was
    -9-
    sentenced as a Range III persistent or career offender and that the Petitioner’s guilty plea
    was knowing and voluntary. Therefore, the Petitioner is not entitled to relief.
    III. Conclusion
    For the aforementioned reasons, the judgment of the post-conviction court is
    affirmed.
    ____________________________________
    ROBERT L. HOLLOWAY, JR., JUDGE
    - 10 -