Derrick Wade v. State of Tennessee ( 2020 )

02/21/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 5, 2019
DERRICK WADE v. STATE OF TENNESSEE
Appeal from the Circuit Court for Madison County
No. C-17-325 Kyle Atkins, Judge
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No. W2019-00432-CCA-R3-PC
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Pursuant to a plea agreement, the Petitioner, Derrick Wade, received an effective thirty-
year sentence for his convictions for two counts of second degree murder, two counts of
especially aggravated robbery, and attempted first degree murder. The Petitioner filed a
timely post-conviction petition, which was denied after a hearing. On appeal, the
Petitioner asserts that he received the ineffective assistance of trial counsel and that his
pleas were not entered knowingly or voluntarily because he was under duress due to the
circumstances of his plea. After a thorough review of the record, we discern no error and
affirm the post-conviction court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.
Alexander D. Camp, Jackson, Tennessee, for the appellant, Derrick Wade.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Jody Pickens, District Attorney General; and Alfred L. Earls, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
The Petitioner’s convictions stem from the murder of two victims and the
wounding of another by gunfire during a home invasion and robbery committed by the
Petitioner with his cousin and co-defendant, Johnny Lorenzo Wade. See State v. Johnny
Lorenzo Wade, No. W2017-00933-CCA-R3-CD, 2018 WL 3414471, at *1 (Tenn. Crim.
App. July 13, 2018) (affirming a sentence of life plus forty years for the co-defendant
charged with the same offenses), perm. app. denied (Tenn. Nov. 15, 2018). The
Petitioner was charged with one count of first degree, premeditated murder; two counts of
felony murder; two counts of especially aggravated robbery; attempted first degree
murder; and aggravated assault.1
Plea Hearing
At the plea hearing, the prosecutor noted that the State had filed a notice seeking a
sentence of life without parole. According to the prosecutor’s recitation of facts, on
January 15, 2013, the Petitioner and co-defendant, both armed with handguns and
intending to commit robbery, entered the Jackson residence of Mr. Johnny Shivers, Ms.
Chermaine Owens Shivers, Mr. Markel Owens, who was Ms. Shivers’s adult son, and
Mr. Jonathan Shivers, who was the teenage son of Mr. Shivers and Ms. Shivers.2 The
prosecutor stated that Mr. Johnny Shivers and Mr. Owens resisted the attack and were
both shot and killed. Ms. Shivers was shot and wounded, as was the Petitioner. After the
culprits fled the home with the money they had taken, the Petitioner’s girlfriend drove
them to a hospital in Memphis, where the Petitioner was treated for a gunshot wound and
ultimately arrested.
At the plea hearing, the Petitioner agreed that the prosecutor’s recitation of facts
was substantially correct. He confirmed that he understood the charges to which he was
entering guilty pleas and that he understood he was pleading outside of his range in
exchange for reduced charges. He stated that he understood he had a right to persist in a
plea of not guilty, to have a jury trial, to have the assistance of counsel at trial, to confront
witnesses, to refrain from incriminating himself, to appeal, and to have the assistance of
counsel on appeal. He understood that he was giving up these rights in entering a guilty
plea and understood that by pleading guilty, he was admitting he had committed the
crimes. He stated he was entering his plea freely and voluntarily and that he had not been
forced, pressured, or threatened to plead guilty or induced to do so with promises outside
the plea agreement. The Petitioner agreed that he had “gone over this case in detail” with
his attorney, and asked by the trial court if he had any further questions for his attorney or
the court, the Petitioner responded, “No, sir. We talked about it all.” The Petitioner
confirmed he had discussed the charges, the factual basis of the charges, the strengths and
1
The indictments are not included in the record, but the prosecutor and trial court reviewed the
Petitioner’s charges at the plea hearing.
2
We take the spellings of the victims’ names and their ages from the appellate opinion filed in the
co-defendant’s appeal. Johnny Lorenzo Wade, 2018 WL 3414471, at *1.
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weaknesses of the case, and the advantages and disadvantages of proceeding to trial. He
had prior criminal history and had pled guilty to a prior offense. He confirmed he was
satisfied with counsel’s representation.
Neither the plea agreement nor the judgment forms are part of the record on
appeal. According to the transcript of the plea hearing, the trial court merged the
alternative charges for the homicide of Mr. Johnny Shivers into one conviction for second
degree murder. The Petitioner also pled guilty to the second degree murder of Mr.
Owens and to the especially aggravated robberies of both Mr. Johnny Shivers and Mr.
Owens. The trial court merged the charges of attempted first degree murder and
aggravated assault into one conviction for attempted first degree murder. The Petitioner
was sentenced to serve thirty years for each count of second degree murder, thirty years
for each count of especially aggravated robbery, and thirty years for attempted first
degree murder. The attempted first degree murder was to be served with a thirty-five
percent release eligibility, and the remaining convictions were to be served with a one
hundred percent release eligibility. All of the sentences were to run concurrently.
Post-Conviction
The Petitioner filed a timely post-conviction petition, was appointed counsel, and
filed an amended petition alleging that trial counsel did not communicate with him and
did not prepare adequately for trial and that his pleas were not knowing and voluntary
because he was pressured into accepting the plea agreement by the circumstances
surrounding the plea.
At the post-conviction hearing, the Petitioner testified that trial counsel only met
with him two or three times over the course of two years. He asserted that trial counsel
did not discuss the strengths or weaknesses of the case or develop a defense strategy and
instead informed the Petitioner, “Well, they know you did it.” He denied that he received
a mental health evaluation.
The Petitioner said that trial counsel unexpectedly moved to withdraw from
representing the Petitioner days before trial but the trial court denied the motion. The
Petitioner stated that he felt coerced into taking the plea agreement by trial counsel’s
attempt to withdraw. However, he acknowledged that trial counsel only moved to
withdraw because, in a conversation with the Petitioner’s mother, the Petitioner had
threatened to “slap” trial counsel.
The Petitioner essentially testified that he felt the sentence was harsh and that he
was innocent. He elaborated that his cousin and co-defendant was the one who actually
pulled the trigger during the robbery. He acknowledged that he had been informed that
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under the theory of criminal responsibility, his participation in the robbery would make
him culpable for the subsequent homicides and shooting. He agreed that in his statement,
he admitted entering the house with a gun and with his face covered for the purpose of
committing a robbery, but he asserted that the written statement did not reflect what he
actually told law enforcement. At the hearing, he acknowledged entering the home with
a gun but denied intending to commit a robbery. He acknowledged that he used a false
name when he was admitted to the hospital in Memphis.
The Petitioner stated he was under stress and duress when he accepted the plea
offer because he was facing a very harsh sentence at trial. He testified that he had one to
two days to consider the offer and spoke with his family about it. The Petitioner no
longer wanted to plead guilty but wanted to go to trial.
Trial counsel stated that he met with the Petitioner over twenty times and that an
Assistant District Public Defender and an investigator likewise worked on the Petitioner’s
case. He agreed that two to three meetings for a case of this magnitude would not have
been sufficient. Trial counsel prepared for trial by having both a neuropsychologist and
psychiatrist evaluate the Petitioner for competency and to prepare mitigation and by filing
various motions, including one to suppress the Petitioner’s statement. The Petitioner had
given an inculpatory statement in which admitted his involvement in the crime and stated
that he did not fire because his weapon jammed. The co-defendant was the actual trigger-
man who shot the victims and also inadvertently shot the Petitioner. Trial counsel stated
that the defense strategy would have been to attempt to convince the jury to convict the
Petitioner of a lesser-included offense by focusing on the fact that the co-defendant fired
the actual shots. However, trial counsel believed there was a strong chance that the
Petitioner could be convicted of felony murder.
Plea negotiations were ongoing throughout the pendency of the charges. The
Petitioner had initially sought an agreement for a sentence of twenty-five years, and he
asked for a twenty-eight-year sentence immediately prior to trial. Trial counsel and the
Petitioner discussed the thirty-year plea offer from the State three to four days prior to the
scheduled trial, and the plea was entered on the day trial was set.
Trial counsel confirmed that he moved to withdraw from the case a few days prior
to trial. He explained that he was notified about the threat the Petitioner had made,
consulted the Board of Professional Responsibility, and moved to withdraw on their
recommendation. When the court denied the motion to withdraw, trial counsel assured
the Petitioner he would continue to try to represent him to the best of his ability.
The post-conviction court denied relief. The court credited the testimony of trial
counsel in general and in particular regarding his numerous meetings with the Petitioner
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and his efforts to prepare for trial. The post-conviction court noted that the Petitioner had
not presented evidence of any strategy which trial counsel could successfully have
pursued, and it concluded that trial counsel had not performed deficiently and that the
Petitioner had not demonstrated any prejudice. The post-conviction court likewise found
that the plea hearing demonstrated that the Petitioner’s pleas were entered knowingly and
voluntarily and that he understood the rights he was waiving. The Petitioner appeals.
ANALYSIS
The Petitioner asserts that he is entitled to a new trial because his trial counsel
provided deficient representation, rendering his pleas involuntary, and because his pleas
were not knowing and voluntary due to the circumstances surrounding the pleas. To
obtain relief from a conviction, a post-conviction petitioner must establish that his
conviction or sentence is void or voidable due to the abridgment of any constitutional
right. T.C.A. § 40-30-103. The burden of proving allegations of fact by clear and
convincing evidence falls to the petitioner seeking relief. T.C.A. § 40-30-110(f). The
post-conviction court’s findings of fact are binding on the appellate court unless the
evidence preponderates against them. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn.
2015). Accordingly, the reviewing court defers to the post-conviction court’s findings
regarding the credibility of witnesses, the weight and value of witness testimony, and the
resolution of factual issues. Id. Questions of law and mixed questions of law and fact are
reviewed de novo. Id. Each element of a claim of ineffective assistance of counsel is a
mixed question of fact and law reviewed de novo. Id. Whether a guilty plea is knowing
and voluntary is likewise a mixed question of law and fact reviewed de novo. Lane v.
State, 316 S.W.3d 555, 562 (Tenn. 2010).
Under the Sixth Amendment to the United States Constitution and article I, section
9 of the Tennessee Constitution, the accused is guaranteed the right to effective assistance
of counsel. Moore v. State, 485 S.W.3d 411, 418 (Tenn. 2016). To obtain relief under a
claim that he was denied his constitutional right to effective assistance of counsel, a
petitioner must prove both that counsel’s performance was deficient and that the deficient
performance caused prejudice to the defense. Kendrick, 454 S.W.3d at 457 (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). A claim may be denied for failure
to establish either deficiency or prejudice, and the reviewing court need not address both
components if a petitioner has failed to establish one. Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996).
“Establishing deficient performance requires showing ‘that counsel’s
representation fell below an objective standard of reasonableness,’ which standard is
measured by ‘professional norms’ prevailing at the time of the representation.” Garcia v.
State, 425 S.W.3d 248, 256-57 (Tenn. 2013) (quoting Strickland, 466 U.S. at 688). As
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long as counsel’s representation was “‘within the range of competence demanded of
attorneys in criminal cases,’” counsel will not be deemed to have performed deficiently.
Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (quoting Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975)). Deficient performance requires a showing of errors so serious
that “‘counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment.’” Id. (quoting Strickland, 466 U.S. at 687).
In determining prejudice, the reviewing court must decide if there is “‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Calvert v. State, 342 S.W.3d 477, 486 (Tenn.
2011) (quoting Strickland, 466 U.S. at 694). A reasonable probability is “‘a probability
sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at
694).
The Strickland standard for determining whether a petitioner received the
ineffective assistance of counsel applies to challenges to guilty pleas based on ineffective
assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985); see also Missouri v.
Frye, 566 U.S. 134, 147 (2012). In order to show prejudice in the context of a guilty
plea, the petitioner must demonstrate “‘a reasonable probability that, but for counsel’s
errors, he would not have pled guilty and would have insisted on going to trial.’”
Grindstaff v. State, 297 S.W.3d 208, 217 (Tenn. 2009) (quoting Hill, 474 U.S. at 59).
The inquiry should focus on whether any alleged deficiency affected the outcome of the
plea process. Id.
The Petitioner here claims that his pleas were not entered knowingly or voluntarily
based both on counsel’s alleged deficiency and on the circumstances surrounding his
pleas. In entering a guilty plea, the accused simultaneously waives several constitutional
rights. Blankenship v. State, 858 S.W.2d 897, 903 (Tenn. 1993) (citing McCarthy v.
United States, 394 U.S. 459, 466 (1969)). Accordingly, a guilty plea must be entered
voluntarily, knowingly, and intelligently if it is to comport with due process. Lane, 316
S.W.3d at 562. A plea is not voluntary if it results from “‘[i]gnorance, incomprehension,
coercion, terror, inducements, [or] subtle or blatant threats....’” Blankenship, 858 S.W.2d
at 904 (quoting Boykin v. Alabama, 395 U.S. 238, 242-43 (1969)). This court considers
the totality of the circumstances, including evidence at post-conviction, to determine
whether a guilty plea was entered voluntarily, knowingly, and intelligently. State v.
Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). In particular, the court may
consider:
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
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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.
The Petitioner asserts on appeal that trial counsel was deficient in not alerting him
that he was waiving his right to appeal and that his pleas were accordingly not knowing
or voluntary. This claim was never raised before the post-conviction court; there was no
testimony offered on the issue at the post-conviction hearing; and the post-conviction
court, not having been presented with the issue or any relevant facts, made no finding
regarding the issue. We note that the plea hearing reflects that the Petitioner affirmed
multiple times that he was aware he was waiving his right to appeal. “As a general rule,
this court will not address post-conviction issues that were not raised in the petition or
addressed in the trial court.” Brown v. State, 928 S.W.2d 453, 457 (Tenn. Crim. App.
1996) (citing State v. Smith, 814 S.W.2d 45, 49 (Tenn. 1991)); see Stanley Williams v.
State, No. W2018-01269-CCA-R3-PC, 2019 WL 2407157, at *10 (Tenn. Crim. App.
June 7, 2019), perm. app. denied (Tenn. Oct. 11, 2019); David Lynn Jordan v. State, No.
W2015-00698-CCA-R3-PD, 2016 WL 6078573, at *65 (Tenn. Crim. App. Oct. 14,
2016). We conclude that the issue is waived for failure to raise it before the post-
conviction court.
The Petitioner also asserts that his attorney’s alleged failure to prepare for trial or
develop a defense rendered his pleas involuntary. Although the Petitioner asserts duress
from trial counsel’s alleged deficiencies, the post-conviction court found that trial counsel
met numerous times with the Petitioner and conducted extensive pretrial preparations,
including obtaining expert evidence. Such factual findings are binding on the appellate
court unless the record preponderates against them. Kendrick, 454 S.W.3d at 457. We
conclude that trial counsel’s performance was not deficient. Furthermore, the post-
conviction court concluded, and we agree, that the Petitioner failed to demonstrate any
prejudice from counsel’s alleged failure to develop a defense strategy because he has
made no particular allegations regarding what counsel’s strategy should have been.
The Petitioner also argues that his pleas were involuntary because he was under
duress from the circumstances surrounding his pleas, including the extent of his
sentencing exposure, his attorney’s attempt to withdraw from representation, and the
necessity of making a decision regarding the plea in a short time frame. However, the
Petitioner’s pleas are not rendered involuntary by the Petitioner’s awareness of his
potential sentencing exposure. The fact that the Petitioner was “facing trial with the
possibility of much … greater terms of imprisonment” is by itself “wholly insufficient to
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sustain any suggestion that the guilty plea was ‘involuntary’ as that term has been used in
cases granting relief from such a plea.” Capri Adult Cinema v. State, 537 S.W.2d 896,
898 (Tenn. 1976); see Eddie Charles Warlick v. State, No. W2017-00703-CCA-R3-PC,
2018 WL 672593, at *4 (Tenn. Crim. App. Jan. 31, 2018), no perm. app. filed
(“Accurately informing the petitioner of the potential sentence does not equate to a threat
or an act of coercion….”). Likewise, the fact that the Petitioner had possibly damaged
his working relationship with counsel by threatening to assault counsel does not render
his pleas involuntary. See Eddie Charles Warlick, 2018 WL 672593, at *4 (rejecting the
petitioner’s claim that his plea was not knowing or voluntary because “a contentious
relationship with counsel, standing alone, would not entitle the petitioner to relief”).
Finally, the Petitioner had multiple days to consider the plea offer and discuss it with his
family prior to accepting it. See Ricky Butler v. State, No. M2004-01543-CCA-R3-PC,
2006 WL 2206081, at *6 (Tenn. Crim. App. July 31, 2006) (concluding that the fact that
the petitioner was given a plea offer on the morning of trial did not establish that the plea
was not knowing or voluntary when the plea hearing and post-conviction hearing showed
that the decision was made to avoid a potentially harsh punishment); Stephen E. Miles v.
State, No. W2005-01465-CCA-R3-PC, 2006 WL 1381596, at *5 (Tenn. Crim. App. May
16, 2006) (concluding that the fact that the petitioner had only thirty minutes to decide
whether to take the plea offer did not render the pleas involuntary when the plea hearing
demonstrated that he understood the terms of the plea agreement and his charges). The
Petitioner’s testimony at the plea hearing affirmed that he understood the charges, had
discussed his case and the plea offer with his attorney, and had voluntarily made the
decision to plead guilty. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn
declarations in open court carry a strong presumption of verity.”). The Petitioner has not
demonstrated that his pleas were not knowing and voluntary.
Both in the post-conviction court and on appeal, the Petitioner has asserted the
Petitioner wishes to withdraw his guilty plea, citing standards applicable to Tennessee
Rule of Criminal Procedure 32(f). Insofar as the issue is raised, we hold that the post-
conviction court was correct in its oral ruling that any motion to withdraw the guilty pleas
based on manifest injustice was not timely under the Rule. See Tenn. R. Crim. P.
32(f)(2) (noting that such a motion may be granted “[a]fter sentence is imposed but
before the judgment becomes final”); State v. Peele, 58 S.W.3d 701, 704 (Tenn. 2001)
(noting that a judgment generally becomes final thirty days after entry and that the trial
court loses jurisdiction to amend a judgment at that time).
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CONCLUSION
Based on the foregoing, we affirm the denial of post-conviction relief.
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JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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