James Currie v. State of Tennessee ( 2020 )

09/17/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 23, 2020 at Knoxville
JAMES CURRIE v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
Nos. 2016-D-2399, -2276, -2313, -2218 Jennifer Smith, Judge
No. M2019-01132-CCA-R3-PC
The petitioner, James Currie, appeals the denial of his petition for post-conviction relief,
which petition challenged his guilty-pleaded convictions of burglary of a motor vehicle (5
counts), fraudulent use of a credit card for a value more than $1,000 but less than $10,000
(2 counts), attempt to fraudulently use a credit card, and theft of property valued at more
than $1,000 but less than $10,000, alleging that he was deprived of the effective assistance
of counsel. Discerning no error, we affirm the denial of post-conviction relief.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Daniel J. Murphy, Antioch, Tennessee, for the appellant, James Currie.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Doug Thurman, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
On June 2, 2017, the petitioner pleaded guilty to charges arising from four
different cases. In case 2016-D-2218, the petitioner pleaded guilty to burglary of a motor
vehicle and attempted fraudulent use of a credit card for a value of more than $500 but less
than $1,000. In case 2016-D-2276, the petitioner pleaded guilty to fraudulent use of a
credit card for a value of $1,000 or more but less than $10,000 and burglary of a motor
vehicle. In case 2016-D-2313, the petitioner pleaded guilty to two counts of burglary of a
motor vehicle and one count of theft of property valued at $1,000 or more but less than
$10,000. In case 2016-D-2399, the petitioner pleaded guilty to burglary of a motor vehicle
and fraudulent use of a credit card for a value of $1,000 or more but less than $10,000. The
State dismissed 13 additional charges involving theft of property, vandalism, identity theft,
and fraudulent use of a credit card. The plea agreement included a negotiated sentence of
12 years, with the manner of service to be determined by the trial court.
Because a transcript of the plea submission hearing is not included in the
record on appeal, we glean the following facts from the pre-sentence investigation report.
On April 3, 2016, the petitioner broke a window on Mary Hobeika’s vehicle while it was
parked at Percy Warner Park and took her purse from the vehicle. The petitioner then used
Ms. Hobeika’s credit cards to make unauthorized purchases at various locations. On April
9, 2016, the petitioner broke a window on Cassidy Calgren’s vehicle while it was parked
at Percy Warner Park and took her purse. The petitioner then attempted to use Ms.
Calgren’s credit cards at a Shell gas station and a Walgreens. On May 6, 2016, the
petitioner broke a window on Leah Hawkins’ vehicle while it was parked at Percy Warner
Park and took her purse from the vehicle. The petitioner used Ms. Hawkins’ bank card at
two different Walgreens stores to make unauthorized purchases. On May 18, 2016, the
petitioner broke a window on Laura Levin’s vehicle and Molly McGrath’s vehicle while
they were parked at the NES Greenway trailhead and took the victims’ purses from their
vehicles. The petitioner then made several unauthorized purchases with Ms. McGrath’s
credit card at Walgreens.
The trial court ordered the petitioner to serve his 12-year sentence in
confinement. On July 3, 2018, the petitioner filed a petition for post-conviction relief,
alleging that he was deprived of the effective assistance of trial counsel.
At the January 22, 2019 evidentiary hearing, the petitioner testified that he
retained trial counsel in December 2016. He then retained second counsel1 with the
understanding that both attorneys were working on his cases together. Second counsel
represented the petitioner at his January 2017 arraignment because trial counsel could not
be present. The petitioner acknowledged that trial counsel and second counsel met with
him at the jail, but he asserted that they did not provide him with any discovery materials
and did not discuss the evidence against him; rather, they only discussed the plea offer,
encouraging him to accept it. He stated that he did not receive any discovery materials
until August 2018.
The petitioner stated that he was tricked into pleading guilty by trial counsel
because she told him that if he did not plead guilty, he would face a 25-year sentence if
convicted at trial. Because he believed that trial counsel “wasn’t gonna fight for me
anyway, on my case,” he felt as though he “really had no choice” but to take the plea offer.
1
Because whether the two trial attorneys represented the petitioner independently or as co-counsel
is at issue in this case, we will refer to the first-hired attorney as “trial counsel” and the second-hired
attorney as “second counsel” to avoid confusion.
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He said that trial counsel also told him that if he would “admit to it . . . and confess, that
the judge will feel sorry for me and give me probation.” He stated that he admitted to
having committed the offenses at his sentencing hearing because he “couldn’t do 25 years,”
and, because it was in his best interest to do so, he “really had no choice.”
The petitioner stated that, at the time of his plea submission and sentencing
hearings, he was unaware that the lead detective on his cases was in a romantic relationship
with trial counsel. He did not learn about their relationship until June of 2018. The
petitioner stated that if he had known about their relationship before his plea submission
hearing, he would have fired trial counsel “because I would have known at the time she
wasn’t gonna fight for me because . . . of her [now] husband.” He also said that he would
not have pleaded guilty. He explained that when trial counsel first began representing him,
“she was like one of the best lawyers” but in February of 2017, “she just start[ed] fading
away. Like, she wasn’t doing anything. She wasn’t answering my family[’s] phone calls
or nothing like that.” After February, trial counsel visited him at the jail only once.
Because trial counsel was very accessible and communicative early in the representation,
the petitioner speculated that “she figured out who was on my case, and then it just went
away.” The petitioner asserted that he was innocent of the offenses to which he pleaded
guilty and that he would have gone to trial if trial counsel had not “lied to me the whole . .
. time” and had provided him with discovery materials.
During cross-examination, the petitioner acknowledged that he had eight
prior felonies and that he was familiar with the plea process prior to the proceedings in this
case. He acknowledged that the trial court advised him of his rights and asked him if he
was satisfied with his representation and that he replied under oath that he was satisfied.
The petitioner stated that second counsel reviewed the plea petition with him at the jail,
and trial counsel reviewed it with him again at the courthouse. He acknowledged that he
lied about having committed the offenses at his plea submission hearing, reiterating that he
“got tricked in saying that” by being told that if he did not accept the plea deal, “it was
gonna be more time to serve.”
The petitioner stated that he had two attorneys working on his cases because
trial counsel “told me to . . . in case she got sick, like she always does.” He said that trial
counsel told him that she had “an illness problem,” and she recommended second counsel
to the petitioner. He recalled that trial counsel and second counsel were both present at the
plea submission hearing and the sentencing hearing. The petitioner believed that trial
counsel’s husband was the lead detective in all four cases against him because he “saw his
name in [the discovery materials] several times.”
On redirect examination, the petitioner testified that upon review of his
discovery materials, he learned that trial counsel’s husband was the lead detective on his
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cases, and he did not see anyone else named as lead detective in any of his cases. On
recross-examination, the petitioner stated that in reviewing discovery materials, he did not
understand that there was a different case summary for each of his four cases. On further
direct examination, the petitioner said that the discovery materials indicated that, although
there were four individual cases against him, one detective identified him as a suspect in a
string of offenses against four different victims.
Trial counsel testified that the petitioner first hired her to represent him
before his arraignment on one indictment in which Mary Tingler was the lead detective.
After trial counsel agreed to represent the petitioner on one case, she learned that he had
three other indictments pending. When she learned that the detective with whom she was
in a relationship was the detective named on two of the indictments, she told the petitioner
that she could not represent him on those cases because she had a conflict of interests. She
told the petitioner that she could refund the money he had paid her, allowing him to hire
another attorney to represent him on all four cases or she could continue to represent him
on the cases without a conflict and he could retain a second attorney for the other cases.
The petitioner elected to hire a second attorney for the cases on which trial counsel had a
conflict. Trial counsel stated that she and the petitioner had a long conversation about the
matter within a couple of days of her discovering the conflict.
The petitioner had three separate arraignments, and trial counsel stated that
although she was in court for the arraignments, second counsel “probably did one of the
arraignments” because trial counsel “did not represent [the petitioner] on at least two of the
cases.” Trial counsel said that she did not get the petitioner’s written consent to a conflict
because she did not represent the petitioner on the cases on which she had a conflict,
explaining that second counsel “handled his cases. I handled mine.” She acknowledged
that both she and second counsel were listed as the petitioner’s attorneys on the judgment
forms and the plea petition but explained that those documents contained all four case
numbers. She also stated that the naming of both her and second counsel on the documents
as the petitioner’s attorneys indicates that they were representing him separately.
Trial counsel stated that if the petitioner had elected to take his cases to trial,
the four cases would have been tried separately and that she and second counsel would
have represented the petitioner only for their respective cases. If the State had sought to
try all of the cases together, trial counsel stated that she would have filed a motion to sever.
During cross-examination, trial counsel testified that in her 10-year career as
a criminal defense attorney, she had never needed the assistance of co-counsel on a theft
case. She reiterated that second counsel represented the petitioner on the two cases on
which she had a conflict of interests. She denied that she brought in second counsel to
assist her in the event that she became sick. Trial counsel stated that she provided the
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petitioner with discovery materials, recalling that she reviewed the “very strong” evidence
with him, including video surveillance footage and photographs showing the petitioner
committing the offenses. She stated that, because of the petitioner’s prior criminal record,
he was facing significant sentencing exposure in his cases. She said that second counsel
handled much of the plea negotiations because she was trying to avoid any potential
conflict in negotiating a deal involving all four cases against the petitioner.
The trial prosecutor testified that he negotiated the petitioner’s plea deal with
second counsel only and not with trial counsel, which negotiations involved all four cases
against the petitioner. He stated that he prepared the defendant’s judgment forms, listing
both trial counsel and second counsel as the petitioner’s attorneys because trial counsel
“had been on the case earlier,” “had been involved in the discovery process,” and was
present at the plea submission hearing. He understood trial counsel to be representing the
petitioner on all four cases “[o]nly in a very technical sense.” At the time of the sentencing
hearing, he believed that trial counsel was no longer representing the petitioner and that
second counsel was his only attorney, but he thought that trial counsel was “maybe still
officially a counsel of record.”
During cross-examination, the prosecutor testified that he was not originally
assigned to the petitioner’s case and that he would not have been involved in any
negotiations between trial counsel and the original prosecutor. He stated that he was aware
of some conflict of counsel, but he did not know the nature of the conflict.
Second counsel testified that he was the petitioner’s only attorney during his
period of representation, stating that he first represented the petitioner on “one case and
then it turned into four.” He stated that he negotiated a global settlement for all four cases,
reiterating that he was the petitioner’s counsel on all of the cases.
During cross-examination, second counsel testified that at the time he
represented the petitioner, he and trial counsel shared office space, “just kind of split[ting]
bills for awhile.” He clarified that trial counsel represented the petitioner on one case and
as additional cases were brought against the petitioner, trial counsel had a conflict of
interests and asked second counsel “to take the case, and I said sure.” He could not
specifically recall if he was the attorney of record for all four of the petitioner’s cases, but
stated that, because he was “definitely his lawyer on one case,” he took on the other cases
to “try to resolve [them] all at once.” He stated that he met with the petitioner and
communicated with the petitioner and his fiancée “quite a bit,” adding that when trial
counsel was contacted about the cases, she would give second counsel the messages, and
he would follow up. Second counsel said that the only time he talked to trial counsel about
the cases was when she relayed telephone messages to him and when they visited the
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petitioner together to discuss the arrangement. He acknowledged that he was not present
at the plea submission hearing and that trial counsel “sat in for me” during that proceeding.
Second counsel stated that his priority in representing the petitioner was to
limit his sentencing exposure and avoid trying all four cases “because the likelihood of
conviction would not have been with us.” In his view, securing the State’s agreement that
the manner of service of the petitioner’s 12-year sentence was to be determined by the trial
court was a positive result of the plea negotiations because it allowed the petitioner to be
considered for alternative sentencing. He stated that he gave the petitioner the discovery
materials and discussed with him the evidence in the cases. He recalled that he told the
petitioner of his right to appeal the sentence, and the petitioner “told me to appeal the
sentencing hearing,” but because the petitioner did not retain him for the appeal, “that’s the
last I heard of that.”
At the close of the evidence, the post-conviction court took the matter under
advisement. In its written order denying post-conviction relief, the post-conviction court
found that the petitioner failed to establish “that his trial counsel was laboring under a
conflict of interest,” noting that trial counsel was retained for cases 2016-D-2276 and 2016-
D-2218 and that no conflict existed as to those cases. The court further found that trial
counsel notified the petitioner of a conflict of interests as it related to cases 2016-D-2313
and 2016-D-2399, and the petitioner elected to retain trial counsel for the two cases in
which she was already involved and retained second counsel for the two cases in which
trial counsel had a conflict. The court explicitly credited trial counsel and second counsel’s
testimonies.
In this appeal, the petitioner maintains that trial counsel performed
deficiently by representing him despite an actual conflict of interests. The State contends
that the post-conviction court did not err in denying relief.
We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence 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. A post-conviction petitioner bears
the burden of proving his or her factual allegations by clear and convincing evidence. Id.
§ 40-30-110(f). On appeal, the appellate court accords to the post-conviction court’s
findings of fact the weight of a jury verdict, and these findings are conclusive on appeal
unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast,
the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).
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Before a petitioner will be granted post-conviction relief based upon a claim
of ineffective assistance of counsel, the record must affirmatively establish, via facts
clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, 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. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.
In the context of a guilty plea, the petitioner must establish that “counsel’s
constitutionally ineffective performance affected the outcome of the plea process” by
establishing “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); see Hicks v. State, 983 S .W.2d 240, 246 (Tenn. Crim. App. 1998).
When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with 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) (citation omitted), and “[t]he petitioner bears the
burden of overcoming this presumption,” id. (citations omitted). We will not grant the
petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).
Prejudice will be presumed in cases where the petitioner has established that
his trial counsel “‘actively represented conflicting interests’ and that ‘an actual conflict of
interest adversely affected his lawyer’s performance.’” Strickland, 466 U.S. at 692
(quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980)). As the Court explained,
[I]t is difficult to measure the precise effect on the defense of
representation corrupted by conflicting interests. Given the
obligation of counsel to avoid conflicts of interest and the
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ability of trial courts to make early inquiry in certain situations
likely to give rise to conflicts, it is reasonable for the criminal
justice system to maintain a fairly rigid rule of presumed
prejudice for conflicts of interest.
Id. (citation omitted). “[A]n actual conflict of interest includes any circumstances in which
an attorney cannot exercise his or her independent professional judgment free of
‘compromising interests and loyalties.’” State v. White, 114 S.W.3d 469, 476 (Tenn. 2003)
(quoting State v. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000)). “The proper focus is
solely upon whether counsel’s conflict affected counsel’s actions . . . .” Netters v. State,
957 S.W.2d 844, 848 (Tenn. Crim. App. 1997).
Here, the record supports the trial court’s findings that trial counsel did not
labor under a conflict of interests. Trial counsel’s accredited testimony established that
upon learning that she had a conflict of interests related to two of the petitioner’s cases, she
notified the petitioner of the conflict and told him that she could not represent him on those
cases. Trial counsel explained to the petitioner his options, offering to refund her fee for
him to obtain alternate representation. The petitioner opted to retain second counsel for
the two cases on which trial counsel could not represent him, and trial counsel did not
involve herself with those two cases. Trial counsel did not participate in the plea
negotiations in order to avoid the conflict because the negotiations involved all four cases.
Because no conflict of interests existed in trial counsel’s representation, the petitioner has
failed to prove that he is entitled to post-conviction relief.
Accordingly, the judgment of the post-conviction court is affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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