Demario Lawon Fisher v. State of Tennessee ( 2019 )

04/05/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
January 16, 2019 Session
DEMARIO LAWON FISHER v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2015-A-408 Cheryl A. Blackburn, Judge
___________________________________
No. M2018-00131-CCA-R3-PC
___________________________________
Petitioner, Demario Lawon Fisher, pled guilty to attempted especially aggravated
robbery, two counts of attempted first degree murder, and employment of a firearm
during the commission of a dangerous felony in exchange for a total effective sentence of
twenty-five years. Petitioner subsequently filed a petition for post-conviction relief,
alleging that he received the ineffective assistance of counsel and that his guilty plea was
not knowing and voluntary. The post-conviction court denied relief, and upon our review
of the record, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT L. HOLLOWAY, JR., JJ., joined.
John H. Morris, Nashville, Tennessee (on appeal), and Kara L. Everett, Carthage,
Tennessee (at hearing), for the appellant, Demario Lawon Fisher.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Pamela Anderson,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural History
On September 1, 2014, Petitioner escaped from the Woodland Hills Youth
Development Center. On October 29, 2014, two days before his eighteenth birthday,
Defendant shot the victim, Shayna Graves, and her friend, Rosalind Miller, after
attempting to steal Ms. Graves’s backpack. Defendant was arrested two days later.
Petitions were filed in Juvenile Court charging Petitioner with especially
aggravated robbery; attempted criminal homicide; aggravated assault with a deadly
weapon; handgun possession, second offense or more; and escape. After a hearing,
Defendant’s case was transferred to Criminal Court on December 19, 2014. On February
24, 2015, Defendant was indicted by the Davidson County Grand Jury for attempted
especially aggravated robbery in Count One, attempted first degree murder with serious
bodily injury in Count Two, attempted first degree murder without serious bodily injury
in Count Three, employment of a firearm during the commission of a dangerous felony in
Count Four, and escape from a juvenile detention facility in Count Five.
On May 20, 2016, Defendant entered guilty pleas to attempted especially
aggravated robbery in Count One with a sentence of 8 years to be served at 30%;
attempted first degree murder without serious bodily injury in both Counts Two and
Three, each with a sentence of 20 years to be served at 30%; and employment of a
firearm during the commission of a dangerous felony in Count Four with a sentence of 5
years to be served at 100%. Counts One through Three were run concurrently with each
other and consecutively to Count Four, for a total effective sentence of 25 years.1 The
trial court indicated that Count Five was being dismissed.2 The State provided the
following factual summary of the offenses in this case:
[O]n October 29th of 2014 in the evening hours[,] Ms. Sha[yna]
Graves and Rosal[ind] Miller were students at TSU. They had been at the
library working on a project. They took a study break and walked down to
the Wendy’s. While returning walking back with their food[,] the two
ladies observed a male subject exit a vehicle that was parked on the street.
Ms. Graves advised police that that person pulled out a handgun and stated,
[“]give me the bag.[”] The man then attempted to take Ms. Graves’
backpack off her back, but she refused to release it and fought back. As
they struggled over the backpack, the man placed Ms. Graves in a headlock
and slammed her onto the ground. During this altercation[,] the suspect’s
cell phone fell from his pocket. And while Ms. Graves was on the
ground[,] the suspect then fired his gun at her[,] striking her in the left
shoulder, the stomach, and the legs[,] causing serious bodily injury to Ms.
Graves. That individual then ran back to the vehicle and fired additional
1
On the same day, Petitioner also pled guilty in a different case to two misdemeanors with time-
served sentences run concurrently with the 25-year sentence in this case. Petitioner did not challenge
those convictions in his post-conviction petition, and they are not before this Court.
2
There is no judgment form in the record reflecting the disposition of Count Five.
-2-
shots in that direction, and Ms. Rosal[ind] Miller was grazed by a bullet on
her right hip.
Ms. Graves confirmed that the phone that was discovered by police
on the scene belongs to the man that had attempted to rob them, and that
phone was submitted to the Metro SISU and certain text messages were
extracted from that phone. Those text messages included essentially the
date, congratulations to the person possessing the phone, congratulating
him on finally becoming legal. It should be noted that this crime occurred
on October 29th of 2014 and that the defendant’s birthday would have been
essentially the 31st of October. And he would have been turning eighteen
at that time. The defendant was developed as a suspect and was placed in a
photographic lineup where he was positively identified by both victims.
Additionally there was a distinctive piece of clothing and animal print type
of shirt that was described by the victims. There was an unrelated criminal
investigation that led officers to finding a shirt that matched this description
and submitting it to the Metro police crime laboratory. And it was found
that his DNA was present on that distinctive animal print Versace shirt. All
of these events occurred here [in] Davidson County.
During the plea colloquy, the trial court told Petitioner to ask for clarification from
either Trial Counsel or the court if he did not understand something or if something was
said about his plea agreement that was different from his understanding. The trial court
explained to Petitioner the rights he was waiving by pleading guilty and the range of
punishment for each offense. Petitioner agreed that Trial Counsel had discussed with him
the charges he was facing, the range of punishment and release eligibility for each
offense, the evidence against him, and any possible defenses. Petitioner also agreed that
he initialed each section of the plea petition as Trial Counsel read through it with him,
that he did not have any questions for either Trial Counsel or the court, and that he was
satisfied with the work Trial Counsel had done on his case. The trial court informed
Petitioner that he would be transferred to the Department of Correction as soon as space
became available.
Defendant filed a petition for post-conviction relief on January 13, 2017. Post-
conviction counsel was appointed and filed an amended petition on August 8, 2017.3
3
According to the post-conviction court’s December 21, 2017 order denying relief, Petitioner
filed a pro se “Motion for Appointment of Different Counsel” on May 15, 2017. That motion is not in the
record on appeal. Thus, Petitioner’s allegation on appeal that the post-conviction court erred by failing to
appoint substitute post-conviction counsel, which he also failed to support with any argument or citation
to legal authority, is waived. See Tenn. R. App. P. 24, 27(a)(7); Tenn. R. Ct. Crim. App. 10(b).
Moreover, the post-conviction court’s order noted that in a status hearing on June 30, 2017, “Petitioner
indicated that he was satisfied with current post-conviction counsel.”
-3-
Petitioner alleged that his guilty plea was not knowing and voluntary due to the
ineffective assistance of Trial Counsel. Specifically, Petitioner complained that Trial
Counsel failed to conduct an investigation into the facts of the case and possible defenses,
failed to adequately review and explain the discovery to him, failed to adequately explain
his sentencing exposure and possible lesser-included offenses, and failed to pursue
suppression of the DNA evidence.
At the November 6, 2017 hearing,4 Petitioner testified that Trial Counsel was
appointed to represent him after his case was transferred from Juvenile Court. Petitioner
acknowledged that he was present during the transfer hearing in Juvenile Court and that
he heard the testimony of the two victims. Petitioner received a copy of the discovery,
including police reports, photographic lineups, and forensic evidence reports. However,
according to Petitioner, Trial Counsel did not review the discovery with him and did not
present any potential defense theories if the case went to trial. Petitioner knew that the
victims identified him as their attacker and that a cell phone was found containing text
messages wishing him a happy birthday, but he claimed that Trial Counsel did not
explain how that could be used to establish his guilt at trial. Petitioner did not believe
that Trial Counsel “even understood the case.” Petitioner believed that Trial Counsel
should have explained the charges to him more thoroughly. Petitioner expressed
confusion about how he could be charged with two counts of attempted murder when
only one person was injured and with especially aggravated robbery when nothing was
actually taken. Petitioner also did not understand how a charge of aggravated assault in
Juvenile Court could be indicted as attempted murder when transferred to Criminal
Court.
Petitioner asserted that Trial Counsel visited him “[n]ot once” while he was
incarcerated. Petitioner stated that he tried to call Trial Counsel, but “[h]e don’t answer
the phone.” The one time Petitioner got Trial Counsel on the phone, “he acted like he
couldn’t hear me and he hung up on me.” Petitioner filed complaints with the Board of
Professional Responsibility about Trial Counsel’s lack of communication. Petitioner
asserted that he saw Trial Counsel only at his court dates, but Trial Counsel would tell
him only “that I’m getting throwed off to another court date.” According to Petitioner,
Trial Counsel “didn’t want to represent me on my case because he wasn’t getting paid for
it” and “he didn’t have any other cases like this.”
4
At the beginning of the hearing, Petitioner requested a continuance to obtain copies of letters he
had sent to the Board of Professional Responsibility regarding his “misgivings about [Trial Counsel’s]
continued representation of him at the time he entered into his plea.” The post-conviction court denied
the request for a continuance but stated that Petitioner would be allowed to submit the letters as a late-
filed exhibit. According to the post-conviction court’s order, Petitioner did not do so. Petitioner’s
allegation on appeal that the post-conviction court erred by failing to grant the continuance is waived for
failure to support the issue with argument and citations to legal authority. Tenn. R. App. P. 27(a)(7);
Tenn. R. Ct. Crim. App. 10(b).
-4-
Petitioner explained that he decided to plead guilty because he “was tired of sitting
in the county jail with no help, with no fight on the other side from [Trial Counsel]. And
I’m thinking I’m going to sign up for some Community Corrections time.” Petitioner
testified that he did not know that he was “pleading guilty to prison time” until “they
came and got me for the penitentiary.” Petitioner testified that Trial Counsel told him as
they were going through the plea petition that he would be going home. Petitioner knew
the length of the sentences he would be receiving, but Trial Counsel “said they was all
going to run together with my Community Corrections.” Petitioner stated that Trial
Counsel did “[n]ot really” explain the plea petition. Petitioner testified that he did not
read the plea petition but simply “signed when he told me.”
On cross-examination, Petitioner acknowledged that he pled guilty shortly before
his trial date and that he would have had to wait only a few more weeks to have his day in
court. Petitioner testified that this was his first experience in the adult criminal system
but acknowledged that he had multiple adjudications as a juvenile, including handgun
possession, aggravated burglary, theft, and aggravated animal cruelty. Some of those
adjudications were the result of trials in Juvenile Court.
Petitioner testified that he had obtained his GED while in juvenile detention and
that he can read but that he did not read the plea petition as he signed it. Petitioner
recalled the trial court asking him questions during the plea hearing and going over the
offenses with which he was charged. Petitioner did not recall the trial court explaining
the rights he was waiving or discussing the difference between attempted first degree
murder with and without bodily injury, but he would not disagree if it was in the plea
hearing transcript. Petitioner testified that Trial Counsel told him that he would be
getting Community Corrections and that the plea petition did not say anything about
going to prison. The judge asked Petitioner if he recalled her telling him at the end of the
plea hearing that he would be transferred to the Department of Correction as soon as they
had space available, and Petitioner responded that he did not know what that meant and
that he was excited to be going home. The judge pointed out that the plea petition
indicated “in prison” in the list of the possible punishments for each offense and that the
firearm charge required 100% consecutive service. Petitioner stated, “I feel like I’m
signing my life away. That’s a long time.” Although Petitioner testified at the plea
hearing that he was satisfied with Trial Counsel’s representation, Petitioner explained that
he said that because he believed that he would be released upon entering his plea.
Trial Counsel testified that he had been a licensed attorney since 1995, that
approximately forty-five percent of his practice was criminal law, and that he had
represented clients charged with Class A felonies “[n]umerous times.” Trial Counsel
testified that he was appointed to represent Petitioner and that he does not treat his
-5-
appointed clients any differently than his retained clients. Trial Counsel testified that he
takes his ethical duty to zealously represent his clients seriously.
Trial Counsel testified that he had an independent recollection of this case. Trial
Counsel knew that the employment of a firearm charge required 100% consecutive
service, so he focused his plea negotiations with the State “from the very beginning” on
trying to get that charge dismissed. Trial Counsel also discussed with the State the recent
change in the law distinguishing between attempted first degree murder with and without
serious bodily injury with regard to release eligibility. Trial Counsel agreed that the State
was adamant about what the lowest offer would be. Trial Counsel recalled an offer that
included “a few lesser years, but the ranges were higher I thought. And I explained that
to [Petitioner] also.”
Trial Counsel recalled that the case was scheduled for several court dates and that
he met with Petitioner each time. Trial Counsel testified that he also visited with
Petitioner and believed that Petitioner was being housed “at the Hill building” at the time.
Trial Counsel also recalled attempting to speak with Petitioner on the phone, explaining
“There’s sometimes you can’t talk to them, but I don’t ever remember hanging up on
him.” Trial Counsel provided Petitioner with the discovery in “a big, thick manila
envelope full of documents that I gave to him during visitation, not in court.”
Trial Counsel reviewed the discovery with Petitioner, specifically focusing on the
cell phone and the DNA evidence. Trial Counsel also “emphasized” the importance of
the victims’ identification, explaining
I voiced my concern, I said, these two young women are going to be on a
stand in front of a jury saying that guy right there is the guy that shot me. I
said, how are we going to get around that. I mean, you know, it really
concerned me.
Trial Counsel explained that from his investigation and review of the transfer hearing, the
victims, both freshmen at TSU, would be very credible witnesses and were both
“positive” with their identifications of Petitioner. Moreover, their identification of
Petitioner was corroborated by the DNA evidence on the animal print shirt and the
birthday text messages on the cell phone.
Trial Counsel agreed that the case was eventually settled “on the eve of trial.”
Trial Counsel testified that he made sure to thoroughly review the plea petition because
Petitioner had “reported me to the Board,” so Trial Counsel knew “there was an issue
between he and I.” Trial Counsel went through the petition “line by line,” reading it to
Petitioner and having Petitioner read it himself. Trial Counsel told Petitioner not to
initial anything he did not understand and to ask Trial Counsel for clarification.
-6-
Trial Counsel denied that Petitioner ever mentioned that he thought he was going
to serve his sentence on Community Corrections. Trial Counsel recalled telling
Petitioner “there’s no chance” the State would offer an alternative sentence like
Community Corrections. Trial Counsel testified that Petitioner’s primary concern was
when he was going to “get out.” Trial Counsel discussed with Petitioner “in detail” his
sentence and release eligibility and told Petitioner that he could not give him a specific
“out date” because parole was not guaranteed. Trial Counsel believed Petitioner
understood that he would be serving his sentence in prison.
On cross-examination, Trial Counsel was asked if he was concerned about
Petitioner’s ability to understand everything based on his age and education level. Trial
Counsel testified that he had to speak to Petitioner “about this more than just one or two
times” and that he had to “speak slowly” and “ask him if he understood,” but Trial
Counsel was “positive [Petitioner] knew what I was talking about.” Trial Counsel
conceded that he did not have Petitioner undergo a forensic mental health evaluation.
Trial Counsel was aware of Petitioner’s lengthy juvenile history.
With regard to his discussion with Petitioner regarding the evidence, Trial Counsel
stated, “I asked him, I said, can you tell me - - how can you help me on this, what can I
ask these girls, these women, when they testify and point to you and say that was him and
I’m positive.” Trial Counsel did not consider hiring an identification expert because “we
had talked about settling it, and I didn’t believe it was going to trial.” Trial Counsel also
did not hire an investigator to speak to the victims or speak to them himself, which Trial
Counsel conceded “might have” been beneficial in developing any potential
impeachment evidence.
The post-conviction court took the matter under advisement and issued a written
order on December 21, 2017. Petitioner alleged that he only met with Trial Counsel on
court dates, but the post-conviction court noted that the case had been docketed for seven
discussion dates in 2015 and that Petitioner conceded that Trial Counsel had provided
him with discovery. The post-conviction court concluded, “even assuming, arguendo,
that Trial Counsel’s interaction with the Petitioner was as substantively minimal [as]
Petitioner alleges, Petitioner has still failed to show that the number of meetings he had
with counsel was so deficient as to constitute ineffective assistance of counsel.”
However, the post-conviction court credited the testimony of Trial Counsel over that of
Petitioner with regard to Trial Counsel’s communication with Petitioner and his
explanation of the evidence against Petitioner and the terms of the plea offered by the
State. The post-conviction court noted that Petitioner did not present any evidence
regarding his allegation that Trial Counsel was ineffective for failing to file a motion to
suppress. As to the voluntariness of Petitioner’s plea, the post-conviction court found
that Trial Counsel thoroughly reviewed the plea petition and that Petitioner indicated his
-7-
understanding by initialing each paragraph. The post-conviction court found that there
was no mention either in the plea petition or at the plea hearing of Community
Corrections. The post-conviction court concluded that Petitioner entered his guilty plea
“with an awareness of the consequences, and as such, his guilty plea was voluntarily and
knowingly entered.” The post-conviction court denied relief, and Petitioner filed a timely
notice of appeal.
Analysis
I. Standard of Review
Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a post-
conviction court’s findings of fact are conclusive unless the evidence preponderates
otherwise. Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly, questions
concerning witness credibility, the weight and value to be given to testimony, and the
factual issues raised by the evidence are to be resolved by the post-conviction court, and
an appellate court may not substitute its own inferences for those drawn by the post-
conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). However,
the post-conviction court’s conclusions of law and application of the law to the facts are
reviewed under a purely de novo standard, with no presumption of correctness. Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001).
II. Ineffective Assistance of Counsel
Both the Sixth Amendment to the Constitution of the United States and Article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a petitioner usually must
prove both that counsel’s performance was deficient and that the deficiency prejudiced
the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Because a
petitioner must establish both elements in order to prevail on a claim of ineffective
assistance of counsel, “failure to prove either deficient performance or resulting prejudice
provides a sufficient basis to deny relief on the claim.” Henley, 960 S.W.2d at 580.
“Indeed, a court need not address the components in any particular order or even address
-8-
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).
The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,” Burns, 6
S.W.3d at 462; see also Strickland, 466 U.S. at 690 (“[C]ounsel is strongly presumed to
have rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.”). This Court will not use hindsight to second-guess a
reasonable trial strategy, even if a different procedure or strategy might have produced a
different result. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994);
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, this
deference to the tactical decisions of Trial Counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992).
In order to determine prejudice, the question is “whether counsel’s deficient
performance renders the result of the trial unreliable or the proceeding fundamentally
unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). As stated above, a petitioner
must show that there is a reasonable probability “sufficient to undermine confidence in
the outcome” that, “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Burns, 6 S.W.3d at 463 (quoting Strickland, 466 U.S. at
694). “An error by counsel, even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had no effect on the judgment.”
Id. (quoting Strickland, 466 U.S. at 691). To establish prejudice in the context of a guilty
plea, a petitioner “must show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill
v. Lockhart, 474 U.S. 52, 59 (1985).
However, in United States v. Cronic, the companion case to Strickland, the United
States Supreme Court indicated that there may be exceptional circumstances “that are so
likely to prejudice the accused” that a violation of the Sixth Amendment right to counsel
can be presumed. 466 U.S. 648, 658 (1984). The presumption of prejudice under Cronic
presents “a narrow exception to Strickland’s holding that a defendant who asserts
ineffective assistance of counsel must demonstrate not only that his attorney’s
performance was deficient, but also that the deficiency prejudiced the defense.” Florida
v. Nixon, 543 U.S. 175, 190 (2004). While Strickland applies to most “cases involving
mere attorney error,” Cronic applies to those cases in which there has been an actual or
constructive denial of counsel. Roe v. Flores-Ortega, 528 U.S. 470, 482-83 (2000)
-9-
(internal quotation omitted); see Strickland, 466 U.S. at 692 (“Actual or constructive
denial of the assistance of counsel altogether is legally presumed to result in prejudice.”).
“A reviewing court will presume prejudice to an accused’s right to counsel only when
there has been the complete deprivation of counsel at a critical stage of the proceedings, a
complete failure to subject the State’s case to adversarial testing, or under circumstances
of such magnitude that no attorney could provide effective assistance.” Berry v. State,
366 S.W.3d 160, 174 (Tenn. Crim. App. 2011).
On appeal, Petitioner argues that he was effectively denied the assistance of
counsel because Trial Counsel did not conduct an independent investigation, did not craft
a defense strategy, made a “premature” decision that the case should be settled by plea
agreement rather than trial, and did not adequately communicate with Petitioner to ensure
that he understood the charges he was facing and the terms of the plea agreement.
According to Petitioner, “Trial Counsel’s failure in attempting to deconstruct the
prosecution’s case at any time deprived [Petitioner] of ‘meaningful adversarial testing’
and constitutes a Sixth Amendment violation under the Cronic standard.” Petitioner
argues that the post-conviction court erred by analyzing his claim of ineffective
assistance of counsel under the Strickland standard rather than under Cronic’s
presumption of prejudice. However, Petitioner did not argue that he was entitled to the
presumption of prejudice under Cronic in either of his petitions for post-conviction relief
or at the post-conviction hearing. The State argues that Petitioner has thereby waived our
consideration of this issue. See Walsh v. State, 166 S.W.3d 641, 645 (Tenn. 2005)
(“Issues not addressed in the post-conviction court will generally not be addressed on
appeal.”). However, this Court has previously reviewed a petitioner’s claim under
Cronic even though it was not presented to the post-conviction court. See Jay Dee
Garrity v. State, No. M2016-01463-CCA-R3-PC, 2018 WL 1691296, at *9 (Tenn. Crim.
App. Apr. 4, 2018), no perm. app. filed; Marcus Nixon v. State, No. W2006-00618-CCA-
R3-PC, 2007 WL 1215031, at *7 (Tenn. Crim. App. Apr. 20, 2007), no perm app. filed.
Moreover, the United States Supreme Court has held that “whether we require the
defendant to show actual prejudice . . . or whether we instead presume prejudice turns on
the magnitude of the deprivation of the right to effective assistance of counsel.” Flores-
Ortega, 528 U.S. at 482.
While we do not consider Petitioner’s argument waived, we do consider it
unconvincing. In order to establish the constructive denial of counsel, a petitioner must
show that “although counsel [was] present, the performance of counsel [was] so
inadequate that, in effect, no assistance of counsel [was] provided” at all. Cronic, 466
U.S. at 654 n.11. The United States Supreme Court has clarified counsel’s “failure to test
the prosecutor’s case . . . must be complete” and must have occurred “throughout the . . .
proceeding as a whole” rather than “at specific points.” Bell v. Cone, 535 U.S. 685, 697
(2002). In Cronic itself, the United States Supreme Court held that prejudice could not
be presumed based simply on counsel’s lack of experience and short amount of time to
- 10 -
prepare for trial. 466 U.S. at 663-66 (remanding for reconsideration under Strickland
standard). Additionally, an allegation that counsel failed “to investigate and pursue all
avenues of defense” has been considered more appropriately analyzed under Strickland
“rather than as a fundamental breakdown of the adversarial process such that prejudice is
presumed under Cronic.” Chadwick v. Green, 740 F.2d 897, 901 (11th Cir.1984); see
also Woodard v. Collins, 898 F.2d 1027, 1029 (5th Cir. 1990) (“[A] decision to
investigate some issues and not others or even a decision to conduct virtually no
investigation is governed by Strickland and its progeny.”). Thus, Petitioner has the
burden of overcoming the “strong presumption that counsel provided adequate assistance
and used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015).
The evidence in the record does not preponderate against the post-conviction
court’s findings that Trial Counsel reviewed the discovery, negotiated a favorable plea,
met with Petitioner on multiple occasions both in and out of court, and advised Petitioner
regarding the strength of the State’s case and the terms of the plea agreement.
Petitioner’s allegations of Trial Counsel’s supposed failures are not so complete and so
egregious that Petitioner was functionally without counsel prior to the entry of his guilty
plea. Petitioner’s reliance on Cronic’s presumption of prejudice is far-fetched. Trial
Counsel was clearly “more than just a warm body to stand next to” Petitioner during the
plea hearing. United States v. Smith, 640 F.3d 580, 589 (4th Cir. 2011) (quoting United
States ex rel Thomas v. O’Leary, 856 F.2d 1011, 1015 (7th Cir. 1988)).
Moreover, Petitioner failed to produce any evidence at the post-conviction hearing
that additional investigation by Trial Counsel beyond reviewing the discovery provided
by the State, including hiring an investigator or an expert witness, would have produced
any information favorable and material to his case. See Owens v. State, 13 S.W.3d 742,
756 (Tenn. Crim. App. 1999); see also United States v. Green, 882 F.2d 999, 1003 (5th
Cir. 1989) (“A defendant who alleges a failure to investigate on the part of his counsel
must allege with specificity what the investigation would have revealed and how it would
have altered the outcome of the trial.”). Petitioner waived his allegation with regard to
Trial Counsel’s failure to file a motion to suppress by failing to produce any evidence or
legal argument in the post-conviction court that such a motion would have been
successful. See Craig Abston v. State, No. W2014-02513-CCA-R3-PC, 2016 WL
3007026, at *9 (Tenn. Crim. App. May 17, 2016), perm. app. denied (Tenn. Aug. 18,
2016). Additionally, Petitioner has failed to show that Trial Counsel’s decision to pursue
plea negotiations was unreasonable, especially given the strength of the State’s case, the
credibility of the victims, and the dearth of viable defense strategies. See Michael D.
Lyles v. State, No. M2005-01857-CCA-R3-PC, 2006 WL 1931724, at *6 (Tenn. Crim.
App. July 12, 2006), perm. app. denied (Tenn. Nov. 20, 2006). As the Cronic Court
itself recognized:
- 11 -
[T]he Sixth Amendment does not require that counsel do what is
impossible or unethical. If there is no bona fide defense to the charge,
counsel cannot create one and may disserve the interests of his client by
attempting a useless charade. . . . And, of course, even when there is a bona
fide defense, counsel may still advise his client to plead guilty if that advice
falls within the range of reasonable competence under the circumstances.
Cronic, 466 U.S. at 657 n.19 (citations omitted). Petitioner has failed to show any
deficiency on the part of Trial Counsel, much less a deficiency of such magnitude that
Petitioner was constructively denied the assistance of counsel. Thus, Petitioner is not
entitled to relief under either Strickland or Cronic.
III. Validity of Guilty Plea
To satisfy constitutional standards of due process, a guilty plea must be entered
knowingly, intelligently, and voluntarily. Boykin v. Alabama, 395 U.S. 238, 243 (1969).
When evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[t]he standard was and remains whether the plea represents
a voluntary and intelligent choice among the alternative courses of action open to the
defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). In making this
determination, the reviewing court must look to the totality of the circumstances. See
State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995); Chamberlain v. State,
815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). This Court may consider the following
circumstantial factors:
the relative intelligence of the defendant; the 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 trial.
Blankenship v. State, 858 S.W.2d 897, 905 (Tenn. 1993). “[A] plea is not ‘voluntary’ if it
results from ignorance, misunderstanding, coercion, inducements, or threats.” Ward v.
State, 315 S.W.3d 461, 465 (Tenn. 2010). A defendant’s solemn declaration in open
court that his plea is knowing and voluntary creates “a formidable barrier in any
subsequent collateral proceeding” because these declarations “carry a strong presumption
of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Petitioner argues that his guilty plea was not knowing and voluntary due to the
ineffective assistance of Trial Counsel. As stated above, the post-conviction court found
that Trial Counsel met with Petitioner on multiple occasions, provided Petitioner with
- 12 -
discovery, and negotiated a plea with the State. Trial Counsel thoroughly reviewed the
plea petition with Petitioner and had Petitioner initial each paragraph to indicate his
understanding. Petitioner had obtained his GED and was capable of reading the plea
petition, even if he chose not to. Moreover, Petitioner testified at the plea hearing that he
had read the petition and that he understood the charges he was facing, the terms of the
plea he was entering, and the rights he was waiving. Even though there are differences
between Juvenile Court and Criminal Court, Petitioner’s numerous delinquent
adjudications indicated a familiarity with the criminal justice system. The post-
conviction court found that “Petitioner’s primary complaint is he wanted out of custody
and he thought entering the plea would enable him to go home.” However, the post-
conviction court credited the testimony of Trial Counsel that he and Petitioner discussed
parole eligibility, which indicated to Trial Counsel that Petitioner understood that he
would be going to prison. Trial Counsel denied telling Petitioner that the State’s offer
included an alternative sentence, and Community Corrections was never mentioned either
in the plea petition or at the plea hearing. The evidence in the record does not
preponderate against the findings of the post-conviction court, and Petitioner has failed to
prove his allegations by clear and convincing evidence.
On appeal, Petitioner also argues that his plea was rendered unknowing and
involuntary due to Trial Counsel’s ineffective assistance in explaining his potential
sentencing exposure if his case went to trial. According to Petitioner’s appellate brief,
Petitioner entered his plea “based on an understanding that his exposure was much
greater at his sentencing range than it actually was.” Rather than claiming that Trial
Counsel provided inaccurate advice, Petitioner simply claims that it was “not probable”
that he would have received the maximum sentence for each offense or be ordered to
serve each offense consecutively “given his lack of a felony criminal history.” At oral
argument, Petitioner pointed out that the plea petition stated the entire sentencing range
for each offense rather than only the Range I sentencing range, claiming that this was
error based on James M. Meese v. State, No. M2017-00909-CCA-R3-PC, 2018 WL
3154348, at *9 (Tenn. Crim. App. June 26, 2018) (finding ineffective assistance when
Trial Counsel “made no effort to determine the [p]etitioner’s applicable sentencing
range” and advised the petitioner that he faced a maximum sentence over twice his actual
exposure). However, we agree with the State that this issue is waived for being raised for
the first time on appeal. Walsh, 166 S.W.3d at 645. Other than a single sentence in his
amended petition stating that “when the maximum possible [sentencing] exposure is
overstated, the defendant might well be influenced to accept a plea agreement he would
otherwise reject,” the issue of Petitioner’s sentencing exposure was never discussed in the
court below. Moreover, a trial court may consider a defendant’s juvenile record in
determining the length and manner of service of a defendant’s sentence. See T.C.A. §
40-35-114(16); State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997); State v.
Stockton, 733 S.W.2d 111, 112-13 (Tenn. Crim. App. 1986). Additionally, at the plea
hearing, the trial court reviewed the sentencing ranges that Petitioner faced as a Range I,
- 13 -
standard offender. There is no evidence in the record that Trial Counsel provided
inaccurate advice regarding Petitioner’s sentencing exposure. Thus, Petitioner is not
entitled to relief.
Conclusion
Based on the foregoing, we affirm the judgment of the post-conviction court
denying relief.
____________________________________
TIMOTHY L. EASTER, JUDGE
- 14 -