Tyrone Musgrave v. State of Tennessee ( 2015 )


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  •            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    Assigned on Briefs October 6, 2015
    TYRONE MUSGRAVE v. STATE OF TENNESSEE
    Appeal from the Circuit Court for Madison County
    No. C13353     Donald H. Allen, Judge
    No. W2014-01853-CCA-R3-PC - Filed November 24, 2015
    The Petitioner, Tyrone Musgrave, appeals from the denial of post-conviction relief arising
    from his guilty plea to one count of burglary, a Class D felony, and one count of
    retaliation for past action, a Class E felony. On appeal, he argues that he received
    ineffective assistance of counsel in relation to his guilty pleas because counsel did not
    spend adequate time meeting with him and failed to fully explain the consequences of his
    plea agreement. Upon review, we affirm the judgment of the post-conviction court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
    CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
    WOODALL, P.J. and ROBERT L. HOLLOWAY, J., joined.
    Gregory D. Gookin, Jackson, Tennessee, for the Defendant-Appellant, Tyrone Musgrave.
    Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
    Attorney General; Jerry Woodall, District Attorney General; and Shaun A. Brown,
    Assistant District Attorney General, for the Appellee, State of Tennessee.
    OPINION
    On May 20, 2013, the Petitioner entered a plea of guilty to retaliation for past
    action and burglary. He received a two-year sentence for the conviction for retaliation for
    past action and two and a half years for the burglary conviction. The sentences were
    ordered to be served consecutively because the Petitioner was charged with burglary
    while he was released on bond for the retaliation for past action charge.1 In sum, the
    Petitioner received a total effective sentence of four years and six months, as a Range I
    1
    The Petitioner also entered guilty pleas to eight misdemeanor charges on the same day.
    However, the Petitioner does not challenge the validity of those convictions on appeal.
    offender, in the Tennessee Department of Correction. On appeal, the Petitioner claims he
    received ineffective assistance of counsel only in relation to his guilty pleas to retaliation
    for past action and burglary.2
    Guilty Plea Hearing. At the May 20, 2013 plea submission hearing, the
    Petitioner testified that he was not under the influence of drugs or alcohol, he was
    entering his guilty plea voluntarily, he understood the terms of his negotiated plea
    agreement, and he had not been threatened or pressured into entering his guilty pleas.
    The Petitioner also testified that he had been advised of all possible legal defenses by his
    attorney and he was satisfied with the representation he had received.
    The court informed the Petitioner of his rights, and the rights he was giving up by
    entering a guilty plea as well as the terms of his negotiated plea agreement. The trial
    court specifically advised the Petitioner of the range of punishments available for each
    conviction and the amount of pretrial jail credit that would be applied to his sentence.
    The State then summarized the proof supporting the Petitioner‟s guilty plea to
    retaliation for past action:
    [T]he State would show at trial that on or about September 14th of 2012
    that [the Petitioner] did commit the offense of retaliation for past action by
    threatening to harm a witness, Beverly Kinnie, by committing an unlawful
    act against her. The State would show at trial that [the Petitioner] was
    charged or was accused of assaulting Ms. Kinnie‟s father in the early
    morning hours of September 15th, 2012. Mr. Musgrave then called Ms.
    Kinnie and threatened to get back at her for being a witness and
    participating in having him reported by shooting up her house and her
    husband. That did place her in fear and she did notify officers then once
    she had received the threat.
    Regarding the burglary charge, the State summarized the proof as follows:
    2
    In Petitioner‟s pro se petition for post-conviction relief, and in his brief to this court, the
    Petitioner challenges the validity of his guilty pleas for burglary and retaliation for past action. At the
    hearing on the Petitioner‟s motion, both the Petitioner and his post-conviction counsel acknowledged that
    the Petitioner only sought relief as to the retaliation for past action conviction. Accordingly, the
    Petitioner has arguably waived any challenge to his burglary conviction. See T.C.A. § 40–30–110(f)
    (“There is a rebuttable presumption that a ground for relief not raised before a court of competent
    jurisdiction in which the ground could have been presented is waived.”). However, because both
    convictions were challenged in the original petition as well as in the Petitioner‟s brief, and because the
    State does not argue that the Petitioner waived consideration of this issue, we will address the validity of
    the guilty pleas in both cases. See Tenn. R. App. P. 13(b) Advisory Comm‟n Cmts.
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    The State would show at trial that [the Petitioner] did unlawfully enter a
    building being a storage building belonging to Mr. Blazer with the intent to
    take that property and that he did unlawfully and knowingly attempt to steal
    property over the value of $500 being a generator without Mr. Blazer‟s
    permission and that he was unlawfully remaining on that property or
    entering that property without Mr. Blazer‟s permission. All of this
    occurred on September 28, 2012[,] and occurred in Madison County,
    Tennessee.
    The Petitioner acknowledged that he had committed the aforementioned acts and
    that he was pleading guilty to the charged offenses. When asked by the trial court if he
    had any questions regarding his plea agreement, the Petitioner responded that he did not
    have any questions, and was “ready to go.”
    Approximately six months later, on December 16, 2013, the Petitioner filed a pro
    se petition for post-conviction relief alleging that he had received ineffective assistance of
    counsel in connection with his guilty pleas to burglary and retaliation for past action.
    After determining that the petition presented a colorable claim for relief, the post-
    conviction court assigned counsel and set the matter for an evidentiary hearing.
    Post-Conviction Hearing. At the September 4, 2014 post-conviction hearing, the
    Petitioner testified that counsel failed to adequately investigate the facts supporting his
    charge for retaliation for past conduct and failed to interview the State‟s main witness.
    The Petitioner further claimed that counsel failed to adequately explain the terms of his
    plea agreement, never discussed the strengths and weaknesses of the state‟s case with
    him, and met with him only twice prior to his plea hearing. The Petitioner also claimed
    that he did not fully understand the trial court‟s explanation of the consequences of his
    plea agreement because he had gotten into a fight with “some gang members” prior to his
    plea hearing. The Petitioner acknowledged, however, that he did not inform the court or
    counsel of this fight at the plea hearing. The Petitioner testified that he decided to plead
    guilty after being advised by counsel that he would likely receive a longer sentence if
    convicted at trial. Ultimately, the Petitioner claims that he would have proceeded to trial
    on both his retaliation for past action case and the burglary case if counsel had adequately
    investigated the facts of the case and explained to him the consequences of his plea
    agreement.
    Trial counsel testified that she was retained to represent the Petitioner in February
    of 2013. She testified that the Petitioner continued to pick up new charges after she was
    retained and that each time he picked up a new charge she would meet with the Petitioner
    to discuss the new case, the potential defenses, and likelihood of success. In total,
    counsel estimated she met with the Petitioner “four or five times.” Counsel further
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    testified that she was initially presented a plea offer of six years, which she was able to
    negotiate down to four and a half years. She testified that she explained the terms of this
    plea agreement to the Petitioner in detail prior to the Petitioner deciding to accept the
    offer.
    I explained everything in detail and we went over the plea agreement.
    Actually the offer that [the State] had initially sent me was detailed just
    how the plea agreement was with each charge broken down and the
    punishment and the range. I went to the jail and went over that with him
    and showed him that and on the date of the plea that he signed, I went over
    it again and made sure he understood what the possibilities were, what he
    was signing to and things of that nature.
    Finally, counsel testified that the Petitioner never expressed that he wanted to go to
    trial on any of his cases, but instead the Petitioner “kept saying that he wanted
    probation[.]” This testimony is supported by the Petitioner himself, who testified that his
    goal in retaining counsel was “trying [to] get a little probation.”
    At the conclusion of the hearing, the post-conviction court took the matter under
    advisement. On September 16, 2014, the court entered a written order denying post-
    conviction relief. In the order, the court found that the Petitioner failed to prove the
    allegations in his petition by clear and convincing evidence. The court also found that the
    Petitioner‟s decision to enter a guilty plea was made freely and knowingly, with a full
    understanding that he would be required to serve an effective sentence of four and a half
    years with a thirty percent release eligibility status. The court noted that the Petitioner
    had been fully advised of, and clearly understood, his constitutional rights and that he
    effectively chose to waive those rights and enter a plea of guilty.
    As to the performance of counsel, the post-conviction court found that counsel had
    been retained to represent the Petitioner on four criminal cases between February 25,
    2013, and May 20, 2013, and met with the Petitioner “on at least four or five occasions”
    during that period. The court additionally found that counsel went over the plea
    agreement with the Petitioner, and that the Petitioner fully understood the conditions of
    the plea bargain agreement. The post-conviction court did not credit the Petitioner‟s
    testimony that he wanted to proceed to trial on any of his four cases and determined that
    the Petitioner failed to show that the Petitioner would have insisted on proceeding to trial
    but for the errors of counsel. The court concluded that the Petitioner had received “more
    than competent legal representation” from counsel and that the Petitioner was competent
    and fully understood the legal consequences of his decision to plead guilty.
    Following the denial of the petition for post-conviction relief, the Petitioner filed a
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    timely notice of appeal.
    ANALYSIS
    On appeal, the Petitioner argues that he received ineffective assistance of counsel
    only in connection with his guilty pleas to retaliation for past action and burglary.
    Specifically, the Petitioner contends that counsel rendered ineffective assistance by
    failing to sufficiently investigate the facts of his retaliation for past action charge, and by
    failing to adequately meet with him and explain the consequences of entering a guilty
    plea. The State responds that the post-conviction court properly denied relief because the
    Petitioner failed to establish that he received ineffective assistance of counsel. We agree
    with the State.
    Post-conviction relief is only warranted when a petitioner establishes that his or
    her conviction or sentence is void or voidable because of an abridgement of a
    constitutional right. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:
    A post-conviction court‟s findings of fact are conclusive on appeal unless
    the evidence preponderates otherwise. When reviewing factual issues, the
    appellate court will not re-weigh or re-evaluate the evidence; moreover,
    factual questions involving the credibility of witnesses or the weight of
    their testimony are matters for the trial court to resolve. The appellate
    court‟s review of a legal issue, or of a mixed question of law or fact such as
    a claim of ineffective assistance of counsel, is de novo with no presumption
    of correctness.
    Vaughn v. State, 
    202 S.W.3d 106
    , 115 (Tenn. 2006) (internal citations and quotation
    marks omitted); see Felts v. State, 
    354 S.W.3d 266
    , 276 (Tenn. 2011); Frazier v. State,
    
    303 S.W.3d 674
    , 679 (Tenn. 2010). A post-conviction petitioner has the burden of
    proving the factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f);
    Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 
    279 S.W.3d 282
    , 293-94 (Tenn. 2009).
    Evidence is considered clear and convincing when there is no serious or substantial doubt
    about the accuracy of the conclusions drawn from it. Lane v. State, 
    316 S.W.3d 555
    , 562
    (Tenn. 2010); Grindstaff v. State, 
    297 S.W.3d 208
    , 216 (Tenn. 2009); Hicks v. State, 
    983 S.W.2d 240
    , 245 (Tenn. Crim. App. 1998).
    Vaughn further repeated well-settled principles applicable to claims of ineffective
    assistance of counsel:
    The right of a person accused of a crime to representation by counsel is
    guaranteed by both the Sixth Amendment to the United States Constitution
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    and article I, section 9, of the Tennessee Constitution. Both the United
    States Supreme Court and this Court have recognized that this right to
    representation encompasses the right to reasonably effective assistance, that
    is, within the range of competence demanded of attorneys in criminal cases.
    
    Vaughn, 202 S.W.3d at 116
    (internal quotations and citations omitted).
    In order to prevail on an ineffective assistance of counsel claim, the petitioner
    must establish that (1) his lawyer‟s performance was deficient and (2) the deficient
    performance prejudiced the defense. 
    Id. (citing Strickland
    v. Washington, 
    466 U.S. 668
    ,
    687 (1984); Baxter v. Rose, 
    523 S.W.2d 930
    , 936 (Tenn. 1975)). “[A] failure to prove
    either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
    assistance claim. Indeed, a court need not address the components in any particular order
    or even address both if the [petitioner] makes an insufficient showing of one component.”
    Goad v. State, 
    938 S.W.2d 363
    , 370 (Tenn. 1996) (citing 
    Strickland, 466 U.S. at 697
    ).
    A petitioner successfully demonstrates deficient performance by establishing that
    his attorney‟s conduct fell below “an objective standard of reasonableness under
    prevailing professional norms.” 
    Id. at 369
    (citing 
    Strickland, 466 U.S. at 688
    ; 
    Baxter, 523 S.W.2d at 936
    ). Prejudice arising therefrom is demonstrated once the petitioner
    establishes “„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 370
    (quoting
    
    Strickland, 466 U.S. at 694
    ). In order to satisfy the “prejudice” requirement in the
    context of a guilty plea, the petitioner must show that, but for counsel‟s errors, he would
    not have entered his guilty plea and would have proceeded to trial. Serrano v. State, 
    133 S.W.3d 599
    , 605 (Tenn. 2004) (citing Hill v. Lockhart, 
    474 U.S. 52
    , 59 (1985)).
    We note that “[i]n evaluating an attorney‟s performance, a reviewing court must be
    highly deferential and should indulge a strong presumption that counsel‟s conduct falls
    within the wide range of reasonable professional assistance.” State v. Burns, 
    6 S.W.3d 453
    , 462 (Tenn. 1999) (citing 
    Strickland, 466 U.S. at 689
    ). Moreover, “[n]o particular set
    of detailed rules for counsel‟s conduct can satisfactorily take account of the variety of
    circumstances faced by defense counsel or the range of legitimate decisions regarding
    how best to represent a criminal defendant.” 
    Strickland, 466 U.S. at 688
    –89. However,
    we note that this “„deference to matters of strategy and tactical choices applies only if the
    choices are informed ones based upon adequate preparation.‟” House v. State, 
    44 S.W.3d 508
    , 515 (Tenn. 2001) (quoting 
    Goad, 938 S.W.2d at 369
    ).
    In the present case, the Petitioner complains that counsel met with him only twice,
    failed to adequately investigate the circumstances surrounding his charge for retaliation
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    for past action, failed to adequately explain the potential range of punishment, and
    coerced him into accepting the State‟s plea offer. In denying the petition, the post-
    conviction court discredited the testimony of the Petitioner, finding that “the Petitioner
    received more than competent legal representation from [counsel] and, in fact, made [] an
    excellent plea bargain agreement for himself[.]” Rather, the court found that counsel met
    with the Petitioner “on at least four or five occasions” before the Petitioner‟s guilty plea
    hearing. The trial court further determined that counsel reviewed the plea agreement with
    the Petitioner and that the Petitioner never indicated a desire to proceed to trial on any of
    his cases. The court additionally determined that the Petitioner fully understood the
    nature and consequences of his plea, the range of punishment he faced for each offense,
    and that his decision to enter a guilty plea was made voluntarily, knowingly and
    intelligently with no evidence of force or coercion from anyone, including counsel.
    Accordingly, the court concluded that the Petitioner failed to establish by clear and
    convincing evidence that counsel provided ineffective assistance of counsel.
    The record does not preponderate against the post-conviction court‟s findings and
    supports its conclusions that counsel did not render ineffective assistance of counsel. The
    testimony of counsel at the post-conviction hearing reflects that counsel met with the
    Petitioner on at least four or five occasions prior to his guilty plea hearing and discussed
    the charges against him, the range of punishments he faced, and the likelihood of
    successfully defending against those charges. Testimony of both counsel and the
    Petitioner also confirms that counsel negotiated the State‟s initial plea offer from an
    effective sentence of six years down to an effective sentence of four and a half years.
    During the guilty plea hearing, the trial court explained to the Petitioner his rights and the
    rights he would be waiving by pleading guilty. The trial court also carefully explained
    the sentence the Petitioner would receive for each charge as well as the effective sentence
    as a whole. The Petitioner assured the court that he understood his rights and that his
    plea was both knowing and voluntary. Petitioner also assured the court that he was
    satisfied with counsel‟s representation. See Blackledge v. Allison, 
    431 U.S. 63
    , 74 (1977)
    (noting that a defendant‟s testimony at a guilty plea hearing “constitute[s] a formidable
    barrier” in any subsequent collateral proceeding because “[s]olemn declarations in open
    court carry a strong presumption of verity.”). Nothing in the record undermines the
    reliability of the Petitioner‟s testimony at the guilty plea hearing. Except for his own
    testimony, which was largely discredited by the court, the Petitioner failed to put forth
    any evidence to establish deficient performance by counsel. Accordingly, we agree with
    the post-conviction court that Petitioner failed to establish that he received ineffective
    assistance of counsel. The Petitioner is not entitled to relief.
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    CONCLUSION
    Upon review, we affirm the judgment of the post-conviction court.
    _________________________________
    CAMILLE R. McMULLEN, JUDGE
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