Robert E. Bostick v. State of Tennessee ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 29, 2012
ROBERT E. BOSTICK v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Hamilton County
No. 276090 Rebecca J. Stern, Judge
No. E2011-01281-CCA-R3-PC - Filed August 8, 2012
Petitioner, Robert E. Bostick, was indicted by the Hamilton County Grand Jury for first
degree murder, aggravated burglary, attempted aggravated burglary, Class E felony theft, and
Class E felony vandalism. Pursuant to a negotiated plea agreement, Petitioner pled guilty to
second degree murder, a lesser included offense of first degree murder and received an
agreed sentence of 20 years at 100%. All other charges were dismissed pursuant to the plea
agreement. Defendant timely filed a petition for post-conviction relief which was dismissed
by the post-conviction court following an evidentiary hearing. Petitioner appeals, raising two
issues: (1) The post-conviction court erred by ruling his guilty plea was intelligently and
voluntarily entered, and (2) Petitioner should be allowed to obtain a “second opinion mental
evaluation” in order to prove he was incapable of agreeing to a plea agreement voluntarily
and intelligently. We affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
T HOMAS T. W OODALL, J., delivered the opinion of the court, in which JERRY L. S MITH and
R OGER A. P AGE, JJ., joined.
Kevin L. Loper, Chattanooga, Tennessee, for appellant, Robert E. Bostick.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; William H. Cox, III, District Attorney General; and William Hall, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
At the guilty plea hearing, Petitioner (1) acknowledged that he understood, had signed,
and had read the petition to accept guilty plea; (2) admitted his attorney had fully explained
the charges against Petitioner; (3) admitted that he realized the agreed sentenced was “20
years at 100 percent;” (4) acknowledged that the prosecutor had accurately announced his
negotiated plea agreement; (5) admitted that he was “entering this plea freely and
voluntarily;” (6) acknowledged that no one had pressured, forced, threatened, or coerced
Petitioner into pleading guilty; (7) acknowledged he was satisfied with his attorney’s
representation, and he knew of nothing else his attorney could have done that was not done;
and (8) acknowledged his constitutional rights that he was waiving by entering his guilty
plea.
At the post-conviction hearing, Petitioner testified that trial counsel provided
Petitioner with “the discovery and the paperwork” but not until about a week before his
scheduled trial. Petitioner testified he was coerced by his co-defendant into pleading guilty
because there was a package proposal. Either both defendants had to take the negotiated plea
offer or both defendants had to go to trial. Petitioner’s testimony is somewhat puzzling
because it clearly shows he did not want to go to trial:
Q. Okay. Did you make that decision or were you coerced into
[pleading guilty]?
A. I believe I was coerced[.]
Q. How so?
A. Because it was like I didn’t - - I talked to my codefendant, he was
like - - he kept saying let’s take time, let’s take time. And I was like
all right, we’re going to take it. Because I didn’t want to go - - I
ain’t want to go to trial but I felt with trial we could have beat it.
That’s how I felt. But he [codefendant] didn’t [feel] like that.
Petitioner denied that he remembered being told by the trial judge that his sentence
was twenty years at 100% and testified he was led to believe the sentence was twenty years
at 30%. In fact, Petitioner stated he did not remember anything about the day he pled guilty.
Petitioner testified that he did remember receiving a mental evaluation after the charges were
filed. He attended “CDC” classes in school. The reason he was in special education classes
was because he had a learning disability. No testimony or other proof was offered to specify
the type of learning disability, but Petitioner specifically acknowledged during direct
examination by his post-conviction counsel that he had no other disabilities, including mental
disabilities.
Petitioner’s trial counsel testified that he was the third attorney to be appointed to
represent Petitioner on the charges. The other two had been allowed to withdraw as counsel
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for Petitioner. Trial counsel testified that he spoke with Petitioner at length during pendency
of the charges and up to entry of the guilty plea pursuant to what trial counsel termed a very
favorable plea offer. Trial counsel knew that Petitioner also had lengthy discussions with his
second attorney concerning the plea offer. Trial counsel reviewed the mental evaluation
report done for Petitioner early in the proceedings. It concluded he was sane at the time of
the offense and was competent for trial. Trial counsel testified he saw nothing in his
meetings with Petitioner to contradict those conclusions.
Trial counsel went over all of the discovery materials with Petitioner. He advised
Petitioner that based on the evidence, including the statement given by Petitioner to police,
there was very little chance for Petitioner to win his case at trial. Trial counsel was sure that
Petitioner understood what he was doing when he accepted the plea offer. Trial counsel went
through the petition to plead guilty in detail with Petitioner. Trial counsel testified that while
Petitioner was “not probably the most intelligent person I’ve ever had conversations with,”
Petitioner “was certainly intellectually adequate and functional.” Trial counsel concluded
that “[Petitioner] was able to answer questions. He was able to describe concepts back to
me.”
As to Petitioner’s first issue raised on appeal, the trial court’s order dismissing the
post-conviction petition provides in pertinent part:
Some of the circumstances of the petitioner’s plea support his claim
that the plea was not voluntary or intelligent. One is his learning disability;
others are his youth and lack of familiarity with criminal proceedings; a
fourth is his susceptibility to the influence of his co-defendant.
Other circumstances of the petitioner’s plea, however, strongly
contradict his claim that the plea was not voluntary and intelligent. The
transcript of the plea reflects that the petitioner read and signed the plea
agreement, was aware of the charge, his sentence exposure, and his rights
to counsel, trial by jury, confrontation, and non-self-incrimination, and,
when given an opportunity, did not identify anything else that counsel could
or should have done for him.
In addition, the petitioner was aware of the evidence against him,
including his confession, and, presumably, any evidence for him. He
introduces no favorable evidence, including evidence to support his claim
that his initial confession was coerced. Counsel’s assessment of the charge,
first-degree murder, the minimum punishment therefor[e], life
imprisonment, and the apparent lack of a persuasive defense thereto and
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advice to the petitioner that the plea was advantageous to him were
therefore correct. All these circumstance[s] but especially the
advantageousness of the plea persuade the Court that, despite the
petitioner’s learning disability, youth, lack of familiarity with criminal
proceedings, and susceptibility to the influence of his co-defendant, his plea
was a voluntary and intelligent choice among the courses of action open to
him.
As to Petitioner’s second issue presented on appeal, that this Court should order “a
second opinion mental evaluation,” Petitioner did not present this issue to the post-conviction
court at the evidentiary hearing. In fact, as noted above, Petitioner testified that he was not
aware of any mental disabilities he had, other than his learning disability. In his brief,
Petitioner cites no legal authority in support of his second issue. He cites to an order in the
record, signed by the post-conviction court, which states that Petitioner “will have a mental
evaluation performed by a competent medical professional to determine his competency.”
There is nothing else in the record pertaining to a mental evaluation of Petitioner during the
post-conviction proceedings. Petitioner correctly notes in his brief that there were no funds
available to pay for a mental evaluation for him or other indigents. Rule 13 of the Rules of
the Supreme Court of the State of Tennessee, section 5(2) states, “[i]n non-capital post-
conviction proceedings, funding for [indigent petitioners] for investigative, expert, or other
similar services shall not be authorized or approved.”
Since Petitioner did not present this precise issue to the post-conviction court, and
because he failed to cite to any legal authority in support of the issue, it is waived on appeal.
See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived in this court.”);
see also Brimmer v. State, 29 S.W.3d 497, 530 (Tenn. Crim. App. 1998) (issue was waived
where there was “no evidence at the post-conviction hearing concerning [the petitioner’s]
allegations and we cannot speculate as to the substance of the claims.”).
Even if not waived, the issue would not present Petitioner with any ground for relief
because we cannot order something done which would be contrary to a Supreme Court rule.
Accordingly, we will only address the merits of Petitioner’s first issue, whether the trial court
erred by ruling that Petitioner’s guilty plea was entered intelligently and voluntarily.
To sustain a petition for post-conviction relief, a petitioner must prove his or her
factual allegations by clear and convincing evidence at an evidentiary hearing. See Tenn.
Code Ann. § 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review,
this Court will not reweigh or re-evaluate the evidence below; all questions concerning the
credibility of witnesses, the weight and value to be given their testimony, and the factual
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issues raised by the evidence are to be resolved by the post-conviction judge, not the
appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997). The post-conviction judge’s findings of fact on a petition for post-conviction
relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960
S.W.2d at 578.
Petitioner’s entire argument is stated in the following two paragraphs:
During post-conviction hearing the Petitioner [testified] that he has
a learning disability, that he was a juvenile at the time of his arrest, had a
lack of familiarity to the legal system, and that he was influenced to accept
a joint plea offer by his co-defendant.
Contradictory [sic] to the evidence in front of the trial court, the
court erred by dismissing the petition, by disregarding the proof that the
[Petitioner] was coerced and induced prior to entering [the] plea and
incorrectly utilizing the standard for testing the validity of a guilty plea.
Petitioner does not argue on appeal that his guilty plea was the result of ineffective
assistance of counsel. The post-conviction court did not “disregard” certain evidence as
asserted by Petitioner. This evidence was considered by the post-conviction court but
ultimately the post-conviction court determined that other evidence out-weighed proof
favorable to Petitioner.
When a guilty plea is entered, a defendant waives certain constitutional rights,
including the privilege against compulsory self-incrimination, the right to trial by jury, and
the right to confront witnesses. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23
L. Ed. 2d 274 (1969). “A plea of guilty is more than a confession which admits that the
accused did various acts; it is itself a conviction; nothing remains but to give judgment and
determine punishment.” Id. at 242. Thus, in order to pass constitutional muster, a guilty plea
must be voluntarily, understandingly, and intelligently entered. See id. at 243 n.5; Brady v.
U.S., 397 U.S. 742, 747 n.4, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). To ensure that a guilty
plea is so entered, a trial court must “canvass[ ] the matter with the accused to make sure he
[or she] has a full understanding of what the plea connotes and of its consequence[s].”
Boykin, 395 U.S. at 244. The waiver of constitutional rights will not be presumed from a
silent record. Id. at 243.
The record fully supports the post-conviction court’s ruling. Petitioner is not entitled
to relief in this appeal.
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CONCLUSION
The judgment of the post-conviction court is affirmed.
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THOMAS T. WOODALL, JUDGE
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