Garric Dorsey v. State of Tennessee ( 2022 )

07/21/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 12, 2022
GARRIC DORSEY v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
Nos. 19-05184, C1907458 J. Robert Carter, Jr., Judge
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No. W2021-01135-CCA-R3-PC
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The Shelby County Grand Jury indicted Petitioner, Garric Dorsey, for one count of Class
B aggravated sexual battery, one count of Class C solicitation of a minor, and one count of
Class B felony sexual exploitation of a minor. Although Petitioner’s criminal history was
that of a Range II offender, Petitioner entered a guilty plea as a Range III offender to one
count of attempted aggravated sexual battery and one count of solicitation of a minor, both
Class C felonies. The State dismissed the count of sexual exploitation of a minor. Pursuant
to the plea agreement, the trial court sentenced Petitioner to eleven years’ incarceration on
both counts and ran the sentences concurrently. Petitioner filed a post-conviction petition,
which the post-conviction court denied following a hearing. On appeal, Petitioner argues
that he was denied the effective assistance of counsel and that his due process rights were
violated. After a thorough 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
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and JOHN W. CAMPBELL, SR., JJ., joined.
Roberto Garcia, Jr., Memphis, Tennessee, for the appellant, Garric Dorsey.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Senior
Assistant Attorney General; Amy P. Weirich, District Attorney General; and Brad
Reasonover, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural History
Guilty Plea Submission Hearing
The following was presented as the factual basis for Petitioner’s guilty plea:
Had this case gone to trial, the State’s proof would have shown that
on March 27th of 2019, Memphis Police Department received a complaint
from the victim’s mother [] that her daughter had been text messaging with
[Petitioner] in this case and the contents of that text message conversation
were sexually explicit.
She was referred to the internet crimes against children department
and the cell phone was extracted and examined. Investigators did ultimately
discover a conversation between the victim in this case[,] who was 12 years
old at the time[,] and [Petitioner]. The conversation included [Petitioner]
requesting sexually explicit photographs of the 12-year-old victim.
Additionally on May 3, 2019, the victim was interviewed at the Child
Advocacy Center. She did disclose that she had in fact sent a sexually
explicit photograph to [Petitioner] in this case. She also disclosed that at
some point she had been texting with [Petitioner] here in Shelby County and
[Petitioner] had come to her grandfather’s house while she was there at night
and had entered the room where she was sleeping, gotten under the covers
and pressed up against her buttocks. She asked him what he was doing and
at that point she wrapped herself in the covers and he left.
All of these events did occur here in Shelby County.
During the plea colloquy, the trial court explained the plea agreement to Petitioner:
THE COURT: If you were to go to trial and you were -- I know what
your criminal history is but they tell me it’s enough to make you [R]ange [II]
at least.1 Normally [R]ange [II] for a C [felony], which is what you’re
pleading to, would be from six to ten years. You’re agreeing to [eleven]
years. And the reason for that is that’s still a lot less than if you were
convicted as charged. You know, the B felony if it’s non-parolable if you
1
The written plea agreement indicates that Petitioner pled guilty as a Range III multiple offender.
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were [R]ange [II] in that, it would be [twelve] to [twenty] years and they said
it’s at 100 percent but you have to serve at least [eighty-five] percent of it.
So you can accept, you know, an [eleven]-year sentence which is
slightly out of your normal range if you’re doing that because you want to
avoid a much greater possible offense if you were convicted. But I just need
to make sure it’s your agreement that you’re accepting [eleven] years at
[thirty-five] percent on this.
[PETITIONER]: Yes.
THE COURT: Is that right?
[PETITIONER]: Yes, sir.
THE COURT: And you and your attorney talked about, you know, if
you went to trial and were convicted, it would be significantly more.
[PETITIONER]: Yes, sir.
THE COURT: So you’re agreeing in order not to go to trial and in
order to have a definite sentence that you have agreed to, it’s [eleven] years
at [thirty-five] percent. Is that right?
[PETITIONER]: Yes, sir.
THE COURT: . . . And you’ve got to register for the sex offender
registry and the community supervision [] once you’re released. Do you
understand?
[PETITIONER]: Yes, sir.
Petitioner agreed that he was entering the plea freely and voluntarily and that no one
threatened him. The trial court accepted the plea and sentenced Petitioner pursuant to the
plea agreement.
Post-Conviction Hearing
Petitioner filed a timely pro se petition for post-conviction relief and an amended
petition through counsel. At the post-conviction hearing, Petitioner testified that he pled
guilty to one count of attempted aggravated sexual battery and one count of solicitation of
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a minor, both Class C felonies. Petitioner said that he retained trial counsel and met with
him one time. He stated that trial counsel never reviewed the charges, discovery,
sentencing ranges, or possible defenses with him. Petitioner explained that he had two
prior convictions and that he should have been sentenced as a Range II offender. He said
that the plea agreement listed him as a Range III offender.
Petitioner stated that, when he was able to review discovery with post-conviction
counsel, he saw the text messages and the photographic lineup. He explained that, based
on the discovery, he would not have pled guilty and would have taken his case to trial.2
Petitioner stated that he did not know at the time of his plea that he would be on community
supervision for life. He said that he believed he “was going to have to register for ten
years.”
Petitioner testified that, prior to the guilty plea submission hearing, trial counsel told
him “outside the court in the room out there he said that the prosecutor or DA or something
offered me ten years and I got one year, they putting one year on top of it for a contempt
of court because I came to court two days late.” He explained, “I had got my court date
mixed up, and I came two days late and he said they trying to offer me two years for coming
to court late but he talked them down to one, and that’s how I got another year.” Petitioner
said that he was not formally charged with failure to appear.
On cross-examination, Petitioner said that trial counsel explained which documents
were in discovery from the State but that Petitioner did not get to examine those documents.
Petitioner stated that he attempted to speak with trial counsel “every two weeks” but that
trial counsel “always brushed [him] off.” He said, “I told [trial counsel] I wanted to go to
trial because I didn’t do the sexual battery and . . . the sexual exploitation[.]” Petitioner
stated that trial counsel told him that he could not plead “guilty” to some charges and plead
“not guilty” to other charges.
Petitioner stated that he knew how to read and write but that he did not read the plea
agreement before he signed it. He recalled that the trial court talked about his sentence
being “out of range” but said that he did not understand. He agreed that, at the guilty plea
submission hearing, he was under oath, that he was not under the influence, that the trial
court explained his rights, that he said he did not want a trial, and that he agreed he had
discussed the plea agreement with trial counsel.
Trial counsel testified that he had practiced criminal defense for thirty-six years and
that he knew Petitioner since he was a child because trial counsel dated Petitioner’s aunt.
2
The text messages and photographic lineup were not presented at the post-conviction hearing and
do not appear in the record.
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Trial counsel explained that, because he had known Petitioner all his life, Petitioner “could
meet [with trial counsel] any time, he knew that.” He said that he reviewed discovery with
Petitioner “several times” but that the discovery was “not extensive.” Trial counsel
explained that Petitioner was indicted for aggravated sexual battery, a Class B felony, and
that Petitioner would have had to serve the sentence on the charged offense at 100 percent
if convicted. Therefore, the agreement to the Class C felony, attempted aggravated sexual
battery, dropped Petitioner’s release eligibility to thirty-five percent. He explained, “[H]e
was getting a deal doing eleven years at thirty-five percent, so it basically saved him a lot
of time.”
On cross-examination, trial counsel stated that he had tried “numerous” sex crimes
cases and that he understood what it took to be successful at trial. He explained, “[W]hat
I would have done[,] I would have been looking at a way to look at these text messages in
a way that really was not sexual, didn’t have any sexual connotation to them. And all of
them did. I mean, sometimes they were pretty explicit.” Trial counsel recalled that he
explained to Petitioner the possible consequences of going to trial and the likelihood of
conviction.
Order Denying Post-Conviction Relief
The post-conviction court denied relief in a written order. It noted trial counsel’s
testimony that the text messages were incriminating evidence and that the context “made
it clear that Petitioner and the victim were the source[s] of the texts.” It found that the plea
decision “was that of Petitioner[,] according to counsel. It was a matter of eleven (11)
[years] at [thirty-five percent] verses at least twelve (12) [years] at 100 [percent].”
The post-conviction court concluded:
Petitioner claims that his attorney did not spend ample time with him
preparing for trial. During this time, Petitioner was out on bond. Petitioner
agrees that he entered the guilty plea, but now just feels like he wishes he
could go to trial.
Counsel testified, and the guilty plea colloquy demonstrates that this
plea was entered knowingly and voluntarily with full knowledge of the rights
he was waiving.
A post-conviction petition is not available to a person who simply
“reconsiders” their decision. In this case, there is no proof of ineffective
representation or of an involuntary guilty plea.
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Petitioner now timely appeals.
Analysis
Petitioner argues that he was denied the effective assistance of counsel and that the
trial court violated his due process rights by sentencing him for a crime for which he was
not charged.
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). As such, we review a trial
court’s findings of fact under a de novo standard with a presumption that those findings
are correct unless otherwise proven by a preponderance of the evidence. Id. (citing Tenn.
R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). The trial court’s
conclusions of law and application of the law to factual findings are reviewed de novo with
no presumption of correctness. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015).
When reviewing the trial court’s findings of fact, this court does not reweigh the
evidence or “substitute [its] own inferences for those drawn by the trial court.” Fields, 40
S.W.3d at 456. 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].” Id. (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457.
Ineffective Assistance of Counsel
Petitioner argues that he was denied the effective assistance of counsel because trial
counsel (1) failed to inform Petitioner of the nature of the charges against him, his
sentencing ranges, and that Petitioner would have to be on community supervision for life;
(2) failed to properly advise Petitioner regarding the presumption of innocence; and (3)
failed to review discovery with Petitioner. He contends that, were it not for trial counsel’s
deficiencies, he would have insisted on going to trial.
The State responds that trial counsel was not deficient. It argues (1) that trial counsel
explained the charges against Petitioner, the likelihood of conviction, the consequences of
conviction, and the terms of the State’s plea offer; (2) that Petitioner waived his claim
regarding the presumption of innocence by raising it for the first time on appeal; and (3)
that trial counsel reviewed discovery with Petitioner. It contends that the post-conviction
court impliedly discredited Petitioner’s testimony with its finding that Petitioner failed to
prove his claim of ineffective assistance of counsel. The State asserts that Petitioner failed
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to establish that anything in discovery would have benefitted Petitioner or caused him to
proceed to trial.
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,
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,
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at *4 (Tenn. Ct. Crim. App. April 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.
Initially, we note that Petitioner raises for the first time on appeal his claim that trial
counsel was ineffective for failing to explain the presumption of innocence. “‘[I]ssues not
addressed in the post-conviction court will generally not be addressed on appeal.’”
Holland v. State, 610 S.W.3d 450, 458 (Tenn. 2020) (quoting Lane v. State, 316 S.W.3d
555, 561-62 (Tenn. 2010)); Tenn. Code Ann. § 40-30-106(g) (2021). Moreover, our
supreme court has held that “the plain error rule . . . may not be applied in post-conviction
proceedings to grounds that would otherwise be deemed waived or previously determined.”
Id. (internal quotations omitted). This issue is waived.
Next, the post-conviction court impliedly credited the testimony of trial counsel and
discredited the testimony of Petitioner when it ruled that Petitioner failed to establish that
he was denied the effective assistance of counsel. See Michael Clark v. State, No. W2016-
01013-CCA-R3-PC, 2017 WL 1855179, at *15 (Tenn. Crim. App. May 5, 2017)
(“Although the post-conviction court did not make specific credibility findings, the post-
conviction court impliedly credited the testimony of second trial counsel based on its
factual findings.”). Petitioner signed the plea agreement, which stated that he was pleading
guilty as a Range III offender to attempted aggravated sexual battery and solicitation of a
minor. Petitioner’s charges were likewise explained at the guilty plea submission hearing.
Moreover, Petitioner testified at the post-conviction hearing, “I told [trial counsel] I wanted
to go to trial because I didn’t do the sexual battery and . . . the sexual exploitation[.]” In
its written order, the post-conviction court noted, “Petitioner seems to blame his attorney
for not arranging for him to plead guilty to some charges and go to trial on others.” Clearly,
Petitioner knew what he was charged with prior to pleading guilty because he testified that
he wanted to plead “guilty” to some charges and “not guilty” to others.
Regarding Petitioner’s sentencing ranges and community supervision, the trial court
explained to Petitioner the sentence pursuant to the plea agreement, and Petitioner agreed
to it, both verbally and in writing. The trial court also explained at the guilty plea
submission hearing that Petitioner would have to register as a sex offender and be on
community supervision following his sentence. Trial counsel testified that he explained to
Petitioner the likelihood of conviction and the consequences of conviction. Petitioner
claims that trial counsel failed to explain the sentencing ranges or community supervision,
but the post-conviction court impliedly discredited his testimony. Id.-8-
Finally, trial counsel testified that he went over the text messages in discovery with
Petitioner “several times.” Further, none of the text messages appear in the record, and
Petitioner failed to establish how the text messages would have benefitted him or caused
him to insist on going to trial. See Jerome S. Barrett v. State, No. M2015-01161-CCA-R3-
PC, 2016 WL 4410649, at *5 (Tenn. Crim. App. Aug. 18, 2016) (finding no deficient
performance or prejudice because the petitioner failed to introduce any evidence at the
post-conviction hearing that supported his claim of failure to investigate and offered no
explanation as to how he was prejudiced by the absence of such evidence), perm. app.
denied (Tenn. Dec. 14, 2016). Petitioner has not established deficiency or prejudice, and
the post-conviction court properly determined that Petitioner was not denied the effective
assistance of counsel. Petitioner is not entitled to relief.
Due Process and Sentencing
Petitioner argues that the trial court violated his due process rights by increasing his
sentence by one year as a result of his failure to appear at a court date. Petitioner contends
that he was never charged with “failure to appear;” therefore, adding a year to his sentence
for failure to appear violated his rights.
The State responds that Petitioner has waived this issue because Petitioner offered
no authority that his sentence violated his due process rights. Alternatively, the State
argues that Petitioner voluntarily and knowingly agreed to the sentence with his negotiated
guilty plea; thus, his sentence is proper.
Here, although Petitioner’s criminal history qualified him as a Range II offender, he
pled guilty in count one as a Range III offender to Class C felony attempted aggravated
sexual battery, rather than the indicted charge, Class B felony aggravated sexual battery.
A Range III sentence for a Class C felony is ten to fifteen years, and a Range II sentence
for a Class B felony is twelve to twenty years. Tenn. Code Ann. § 40-35-112(b)(2), (c)(3)
(2021).
To the extent that Petitioner is arguing that his due process rights were violated by
the sentence in the plea agreement, he must show that his guilty plea was unknowing and
involuntary. Robert Smith v. State, No. W2021-00890-CCA-R3-PC, 2022 WL 2092990,
at *3 (Tenn. Crim. App. June 10, 2022) (citing Boykin v. Alabama, 395 U.S. 238, 243
(1969)) (“To satisfy constitutional standards of due process, a guilty plea must be entered
knowingly, intelligently, and voluntarily.”). “[A] knowing and voluntary guilty plea
waives any irregularity as to offender classification or release eligibility.” Hicks v. State,
945 S.W.2d 706, 709 (Tenn. 1997); see also State v. Mahler, 735 S.W.2d 226, 228 (Tenn.
1987) (holding that any question as to a petitioner’s classification or release eligibility is
waived by a guilty plea). However, Petitioner does not assert that his plea was unknowing
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or involuntary, and the post-conviction court found that his plea was knowing and
voluntary. In fact, Petitioner testified at the post-conviction hearing that he knew when he
pled guilty that the agreement involved a sentence of eleven years, and the guilty plea
submission hearing transcript demonstrates that the trial court explained the sentence to
Petitioner. Instead, Petitioner appears to argue that the trial court violated his due process
rights because it, in essence, “convicted” him of a crime he was not charged with and then
increased his sentence based on that conviction. There is no judgment form or other
evidence in the record indicating that Petitioner was convicted of the crime of “failure to
appear.” Thus, Petitioner’s “due process” argument is without merit.
To the extent that Petitioner is arguing that the trial court abused its discretion in
imposing an “out-of-range” sentence, this too is without merit. Petitioner’s eleven-year
sentences for the two Class C felonies fit squarely within the sentencing range of ten to
fifteen years for a Range III offender. Tenn. Code Ann. § 40-35-112(c)(3) (2021). Thus,
his sentences fell on the low end of the range for the conviction offenses, and Petitioner
agreed to these sentences at his guilty plea submission hearing, which was to his benefit.
See McKinley v. State, 910 S.W.2d 465, 466-68 (Tenn. Crim. App. 1995) (holding that a
petitioner waived any discrepancy in range classification and release eligibility when he
pled guilty to lesser charges in a higher range classification). Petitioner is not entitled to
relief.
Conclusion
For the foregoing reasons, the judgment of the post-conviction court is affirmed.
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ROBERT L. HOLLOWAY, JR., JUDGE
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