Lewis v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
AUGUST 1997 SESSION
December 23, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
MARCUS N. LEWIS, ) No. 03C01-9704-CR-00132
)
Appellant )
) KNOX COUNTY
V. )
) HON. RAY L. JENKINS,
STATE OF TENNESSEE, ) JUDGE
)
Appellant. ) (Post-Conviction)
)
)
For the Appellant: For the Appellee:
Leslie M. Jeffress John Knox Walkup
1776 Riverview Tower Attorney General and Reporter
900 S. Gay Street
Knoxville, TN 37902 Peter M. Coughlan
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney General
Robert L. Jolley, Jr.
Assistant District Attorney
City-County Building, Suite 168
400 Main Avenue
Knoxville, TN 37901
OPINION FILED: ___________________
AFFIRMED PURSUANT TO RULE 20
William M. Barker, Judge
OPINION
The appellant, Marcus N. Lewis, appeals as of right the dismissal by the Knox
County Criminal Court of his petition for post-conviction relief. On appeal, he argues
that the trial court erred in dismissing his petition without an evidentiary hearing.
Pursuant to Tennessee Court of Criminal Appeals Rule 20, we affirm the trial court’s
order of dismissal.
Appellant was indicted for first degree premeditated murder and felony murder
for the 1992 robbery and murder of Michael Yeary. As part of a plea agreement, the
appellant pled guilty to second degree murder. He also consented to an amendment
to the indictment to include a charge of especially aggravated robbery, to which he
also pled guilty. 1 The agreement recommended a sentence of twenty-five (25) years
on each count to be served consecutively for an effective sentence of fifty (50) years
as a Range I offender. On April 5, 1993, the trial court accepted the plea agreement
and sentenced appellant accordingly.
On February 7, 1996,2 appellant filed a pro se petition for post-conviction relief
alleging the ineffective assistance of counsel and that his plea was coerced. After the
appointment of counsel, the petition was amended to include two factually specific
grounds. The amended petition alleged that appellant’s guilty plea on the amended
offense of especially aggravated robbery was coerced because the trial court failed to
adequately advise the appellant about waiver of the right to a grand jury proceeding
on that charge. Furthermore, the petition alleged that counsel was ineffective for
failing to object to the trial court’s inadequate explanation of that right.
1
Appellant’s guilty pleas were entered as best interest pleas pursuant to North Carolina v. Alford,
400 U.S. 25, 91 S. Ct. 160, 17 L. Ed. 2d 162 (19 70).
2
Appellant’s petition was timely filed under our supreme court’s ruling in Arnold C arter v. State ,
No. 03S 01-961 2-CR -00117 (Tenn . at Knox ville, Septem ber 8, 19 97). Und er the pre vious po st-
conviction act, appe llant had thre e years fro m the date of his conviction to file a post-c onviction p etition.
Tenn. Code Ann. §40-30-102 (repealed 1995). Because that time frame had not expired when the 1995
Post-C onviction A ct took e ffect, app ellant had o ne year fro m its eff ective da te, May 10 , 1995, in w hich to
file his petition. Carter, Slip. op. at 6.
2
Prior to the submission of proof at the evidentiary hearing, the State moved for
dismissal of the petition, asserting that appellant’s claims relating to the amendment of
the indictment did not allege a constitutional violation and that the remaining claims
were not supported by the requisite factual allegations. See Tenn. Code Ann. §40-30-
206(d) (Supp. 1996). After hearing the arguments of counsel, the trial court dismissed
appellant’s petition and later entered a written order of dismissal.
A review of the record indicates that the trial court did not err in failing to hold
an evidentiary hearing. The transcript of the guilty plea hearing clearly reflects that the
trial court fully explained and advised the appellant about his right to grand jury review
of the especially aggravated robbery charge. The transcript from that hearing
indicates that the trial court explained the right of grand jury review to the appellant on
three separate occasions during the hearing, that counsel explained it to appellant in
open court, and that appellant conferred with his counsel privately on several
occasions. Near the conclusion of the guilty plea hearing, the court made a final
explanation to ensure the appellant’s understanding. Appellant’s affirmative
responses to the trial court’s questions indicated an unequivocal waiver of the right to
grand jury review in exchange for the plea agreement.
The remaining grounds of ineffective assistance of counsel and coercion were
not supported by the requisite factual basis and were properly dismissed. Tenn. Code
Ann. §40-30-206(d) (Supp. 1996). Although appellant had the benefit of counsel, the
original grounds for relief were not amended to include particular factual allegations.
Moreover, the trial court noted that any testimony the appellant could offer at a
hearing would be contradictory to his previous statements at the guilty plea hearing
and, therefore, insufficient to sustain his allegations by clear and convincing evidence.
See Tenn. Code Ann. §40-30-210(f) (Supp. 1996). We agree.
Finding that no error of law was committed by the trial court and that an opinion
would have no precedential value, the dismissal of appellant’s post-conviction petition
is affirmed pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.
3
_______________________________
William M. Barker, Judge
____________________________
Gary R. Wade, Judge
____________________________
Paul G. Summers, Judge
4