Jeffrey King v. State of Tennessee ( 2017 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 14, 2017
JEFFREY KING v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Rutherford County
No. F-73101, F-63586D Royce Taylor, Judge
No. M2016-01646-CCA-R3-PC – Filed June 28, 2017
The Petitioner, Jeffrey King, pleaded guilty to multiple drug and money laundering
crimes, and the trial court sentenced him to forty years of incarceration to be served at
100%. The Petitioner attempted to reserve certified questions of law pursuant to
Tennessee Rule of Criminal Procedure 37(b)(2) about whether wiretaps used in the
investigation of the crime were lawful. This court determined that the Petitioner was not
entitled to relief on the basis of the certified questions and affirmed the judgments on
appeal. State v. King, 437 S.W.3d 856, 889 (Tenn. Crim. App. 2013). In 2015, the
Petitioner filed a petition for post-conviction relief, claiming that he received the
ineffective assistance of counsel and, after a hearing, the post-conviction court denied
relief. After review, we affirm the post-conviction court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ., joined.
Manuel B. Russ, Nashville, Tennessee, for the appellant, Jeffrey King.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Jennings H. Jones, District Attorney General; and John C.
Zimmerman, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts and Procedural History
The facts underlying this case encompass numerous charges against the Petitioner
and his co-defendants for possession and sale of marijuana, money laundering, and
possession of firearms in Davidson, Sumner, and Rutherford counties.1 The Petitioner
was represented by different attorneys in each county and pleaded guilty to varying drug
and money laundering offenses in each county.
A. Trial
This court summarized the factual and procedural background of the case for each
of the three counties. We include that which is relevant to this appeal:
On October 7, 2008, Phillip L. Taylor, state investigator for the 20th
Judicial District Drug Task Force of Nashville, Davidson County,
Tennessee, filed in the Criminal Court for Davidson County, Tennessee, an
Application for Interception of Wire and Electronic Communications for
the interception of communications through telephone line (615) 517-7591
“used by Bruce Dady” (“the First Dady Application” and “the First Dady
Number”). The First Dady Application is 59 pages long and consists of
271 numbered paragraphs containing the sworn averments of Officer
Taylor. The identified “concern” of the First Dady Application was “the
delivery, sale, or possession with intent to sell or deliver, 700 pounds or
more of any substance containing marijuana, and conspiracy to commit the
same” (“the Target Crimes”). The First Dady Application identified the
following individuals as participants in the Target Crimes: Vernon E.
Lockhart, Bruce A. Dady, the [Petitioner and his co-defendants], . . .
(collectively, “the Target Subjects”). . . . .
Also on October 7, 2008, Officer Taylor filed in the Criminal Court
for Davidson County, Tennessee, an Application for Interception of Wire
and Electronic Communications for the interception of communications
through telephone line (615) 714-5541 “subscribed to by Cassie T. Roark”
but “believed to be used primarily by [the Petitioner]” (“the King
Application”). The King Application is 60 pages long, consists of 275
numbered paragraphs, and is substantially similar to the First Dady
Application.
....
On October 7, 2008, the Criminal Court for Davidson County, the
Hon. Mark Fishburn (“the Issuing Court”), granted the First Dady
Application, the King Application. . . and issued as to each Application an
1
Additional charges in Wilson and Cheatham Counties were dismissed.
2
Order Authorizing the Interception of Wire and Electronic
Communications, a ten-page document. Each Order contains the following
findings:
4. There is probable cause to believe that [the Target
Subjects] have committed, and will continue to commit, the
offenses of delivery, sale, or possession with intent to sell or
deliver, 700 pounds or more of any substance containing
marijuana, and conspiracy to commit same.
....
5. There is probable cause to believe that the telephone
assigned phone number (615) 714-5541, a telephone service
provided by Verizon Wireless, . . . subscribed to by Cassie T.
Roark at 1636 Stokley Lane, Old Hickory, Tennessee,
believed to be used by [the Petitioner], Target Subject, in
connection with the commission of the above described
offense [sic].
....
6. There is probable cause to believe that the communications
to be intercepted will concern the telephone numbers
associated with the Target Subjects, and the dates, times, and
places for commission of the aforementioned offense when
the Target Subjects communicate with their coconspirators,
associates and other participants in the conspiracy, thereby
identifying the co-conspirators and others as yet unknown. In
addition, these communications are expected to constitute
admissible evidence of the above described offense.
7. It has been established adequately that normal investigative
procedures have been tried and have failed, reasonably appear
to be unlikely to succeed if tried, or are too dangerous to
employ.
...
Applications for additional wiretaps and for extensions of the
wiretaps previously authorized ensued over the period from October 10,
3
2008 through late March 2009. The Issuing Court granted all of the State’s
applications, resulting in the electronic surveillance of a total of twenty-
three telephones. The involved phone numbers were monitored for several
months for evidence related to the Target Crimes.
In 2009, the [Petitioner and his co-defendants] were indicted in
several Middle Tennessee counties on multiple charges including drug and
money-laundering offenses. In the Sumner County and Davidson County
cases, the [Petitioner and his co-defendants] each filed a motion to suppress
the evidence gleaned from the wiretaps. [The Petitioner] also filed a
motion to suppress the evidence gleaned from the wiretaps in the
Rutherford County case. Each of the trial courts held an evidentiary
hearing and subsequently issued orders denying the [Petitioner’s and his co-
defendants’] motions.
Thereafter, [the Petitioner] entered conditional guilty plea in
Rutherford . . . county, as follows:
Rutherford County: One count of conspiracy to sell over
seventy pounds of marijuana, a Class B felony, with a
sentence of twenty years in the Tennessee Department of
Correction (“TDOC”), and one count of possession with
intent to sell or deliver over seventy pounds of marijuana, a
Class B felony, with a consecutive sentence of twenty years’
incarceration.
....
In conjunction with [his] plea, the [Petitioner] reserved the following
certified questions of law:
In the trial court, the [Petitioner] moved to suppress
the fruits of electronic surveillance on numerous grounds: (1)
that the initial wiretap Applications lacked probable cause to
justify interception in violation of T.C.A. §§ 40-6-304(c) and
40-6-305, specifically including the Applications’ failure to
demonstrate the statutorily required nexus between the phone
to be intercepted and the alleged illegal activity sought to be
intercepted; (2) that the initial Applications failed to
demonstrate a constitutionally sufficient requisite necessity
4
for the use of electronic surveillance pursuant to T.C.A. § 40-
6-304(a)(3) and 18 U.S.C. § 2518(1)(c); (3) that all
subsequent wiretaps were the fruits of the prior illegal wiretap
interceptions and therefore, were fruits of the poisonous tree;
(4) that the notarized but unsigned affidavit requesting a
second extension of the wiretap for telephone number (615)
584-6075 was statutorily deficient to support interception; (5)
that, in addition to being a fruit of the prior illegal
interceptions, the subsequent interception of telephone (615)
653-2294 lacked probable cause to justify interception in
violation of T.C.A. §§ 40-6-304(c) and 40-6-305 because they
[sic] failed to make a sufficient link between the phone and
suspected criminal activity or the targets of the investigation;
(6) that, in addition to being a fruit of the prior illegal
interceptions, the subsequent interception of telephone (615)
818-2839 lacked probable cause to justify interception in
violation of T.C.A. §§ 40-6-304(c) and 40-6-305 because they
[sic] failed to make a sufficient link between the phone and
suspected criminal activity or the targets of the investigation;
(7) that the Applications for extensions of the wiretaps failed
to articulate a statutorily sanctioned purpose justifying
continuing interception; (8) that the issuing Court neglected
its duty as a neutral and detached magistrate and acted as an
impermissible rubber stamp for law enforcement; and, (9) that
the Applications contain omissions and material
misstatements that undercut any showing of requisite
necessity for the wiretaps.
The [Petitioner] timely appealed from [his] convictions, and this
Court ordered that the appeals from the judgments of conviction entered in
the Rutherford County, Davidson County, and Sumner County prosecutions
be consolidated.
King, 437 S.W.3d at 860-64 (footnotes omitted). On appeal, this court determined that
the Petitioner was not entitled to relief on the basis of the certified questions of law. It
concluded that several of the questions were not dispositive, limiting review to: whether
the wiretap applications provided a substantial basis for probable cause in accordance
with the standard recited at Tennessee Code Annotated section 40-6-304(c)(4);2 whether
2
In a footnote, this court clarified that
[a]lthough the first of the issues [in the] [Petitioner’s] certified questions refers
5
the wiretap applications satisfied the requisite necessity requirement found at section 40-
6-304(a)(3); if the wiretap applications contained errors that invalidated the applications’
validity; and whether subsequent wiretaps, after the wiretap of the initial phone, were
“illegal as fruits of the poisonous tree.” Id. 870-86 This court declined to rule on the
remaining questions, stating “[the Petitioner] fails to explain how, in light of the State’s
other evidence, [his] convictions must be reversed and [his] cases dismissed were we to
determine that the Issuing Court erred in granting the Allegedly Invalid Applications.”
Id. at 888. For this reason, this court deemed not dispositive the Petitioner’s remaining
certified questions of law. Id. at 886-89. Accordingly, the convictions in each county
were affirmed. Id. at 889.
B. Post-Conviction Proceedings
specifically only to “the statutorily required nexus between the phone to be intercepted
and the alleged illegal activity sought to be intercepted,” the [Petitioner clarifies] in [his]
reply brief that the “heart” of [his] probable cause challenge is that “[t]he State never
conducted consensually monitored and recorded calls to any of the target telephones to
discuss any target offense or criminal conduct.” That is, the [Petitioner] contends that the
State failed to satisfy the nexus requirement set forth in subsection (c)(4) of the Wiretap
Statute, which requires probable cause to believe that the targeted telephone is “being
used, or [is] about to be used, in connection with the commission of the offense.” Tenn.
Code Ann. § 40-6-304(c)(4). . . . Therefore, we decline to address any potential
contention that there was no “probable cause for belief that particular communications
concerning [the] offense will be obtained through the interception.” Tenn. Code Ann. §
40-6-304(c)(2).
6
The Petitioner then filed a petition for post-conviction relief, pro se, in which he
alleged that he had received the ineffective assistance of counsel and that his guilty pleas
were not knowingly and voluntarily entered.3 He argued that counsel was ineffective for
failing to address on appeal the legality of Tennessee Code Annotated section 40-6-
304(c)(2). He further argued that he entered his guilty pleas under the impression that his
nine certified questions would be addressed in turn by the appellate court, would be
deemed dispositive because of the agreement of the parties, and that a determination in
his favor on any of the questions would result in his convictions being reversed. The
post-conviction court appointed an attorney and subsequently held a hearing, during
which the Petitioner, by agreement of the parties, submitted a transcript of the Davidson
County post-conviction proceedings as an exhibit in lieu of live testimony. The evidence,
summarized in our opinion affirming the Davidson County post-conviction court’s
judgment, is repeated here: Counsel testified that she worked as a criminal defense
attorney for fifteen years and had handled hundreds of drug cases throughout her career.
She stated that she had dealt with eighty to one hundred cases that had wiretapping issues
and that she had “actively litigated” forty to fifty wiretap cases. She testified that she was
“very experienced” at the time she represented the Petitioner. Counsel recalled that the
Petitioner was charged in multiple counties and that she represented him in Sumner
County and assisted with his representation in the other counties (hereinafter “Sumner
Counsel”). Sumner Counsel was the Petitioner’s primary attorney, and she stated that the
Sumner County case “took the lead” over the Rutherford County and Davidson County
cases.
Sumner Counsel testified that she spent a “tremendous” amount of time with the
Petitioner and had a very good working relationship with him. She was his “primary
point of contact” for his cases, and the majority of the litigation happened in Sumner
County where she represented him. Sumner Counsel spoke with the attorneys in the
Petitioner’s other cases, and they met jointly with the Petitioner on occasion. Sumner
Counsel described the Petitioner as a “profoundly smart guy” who wanted to be involved
in his case and participate in his defense. As such, Sumner Counsel had many
discussions with him about the litigation strategy over the course of an estimated seventy-
five meetings. Sumner Counsel arranged for the Petitioner to have access to a computer
while incarcerated on which he reviewed his discovery file. She felt that the Petitioner
“trusted [Sumner Counsel’s] judgment,” although she recalled that he had a somewhat
strained relationship with another of his attorneys.
3
The Petitioner filed similar petitions for post-conviction relief in Davidson County and Sumner County.
The Petitioner appealed the post-conviction court’s denial of his petition filed in Davidson County, and
this court affirmed the post-conviction court’s judgment. See Jeffrey King v. State, M2016-01224-CCA-
R3-PC (Tenn. Crim. App., at Nashville, June 28, 2017).
7
Regarding the Petitioner’s direct appeal, Sumner Counsel testified that all of the
Petitioner’s cases were consolidated and that she wrote the appellate brief and argued the
case. About the plea negotiations with the State, Sumner Counsel recalled that the State
made an initial offer that “may have been forty [years] at thirty percent” but that a
certified question was not included in the deal. Lengthy negotiations followed because
the State insisted that the Petitioner plead guilty in multiple counties, which Sumner
Counsel felt was unnecessary and excessive. Sumner Counsel also recalled that the State
made an offer in exchange for the Petitioner’s cooperation as a witness, and the Petitioner
did not want to cooperate.
Regarding the certified questions of law in relation to the wiretap issue, Sumner
Counsel said that this was “incredibly important” to the Petitioner because he felt very
strongly that the wiretaps were unlawful. The Petitioner understood, and the State
agreed, that without the wiretap evidence, the State’s case would essentially have to be
dismissed. As a result, the wiretap issue was also “incredibly important to [Sumner
Counsel] legally.” She agreed that if the certified questions had not been a part of the
plea deal, the Petitioner would not have accepted the deal. She stated that the “certified
question[s] were the enticing factor for that plea deal for [the Petitioner].”
Turning back to her representation of the Petitioner, Sumner Counsel recalled that
she reviewed with the Petitioner “every bit” of the discovery. Based on the State’s
evidence, she and the Petitioner “knew collectively that if we went to trial we were in
trouble.” “[The Petitioner’s] perspective, he knew that if he went to trial he would be
convicted.” Sumner Counsel had prepared documentation of the Petitioner’s maximum
potential exposure if he was convicted by a jury, and it was ninety years or more with
much of the sentence to be served at 100 percent because of school zone enhancements.
Sumner Counsel stated:
[I]t was very important to [the Petitioner] that the certified
question[s] be heard. And my advice would have been to him, although I
thought the [State’s] offer was terrible and I thought it was way too much
time in the case, . . . we didn’t have a lot of choices, those were our choices.
. . . . But with the certified question[s] I really felt strongly that he should
consider the offer. It gave him what he wanted, gave him the opportunity
to be heard on appeal on these issues, and it gave him some control of his
future in the sense of a definitive resolution.
Sumner Counsel stated that she was not a “seller” of plea agreements and believed
that a case should go to trial if a defendant so desired. She stated that she never pressured
clients to give up their right to a trial. About the motion to suppress the wiretaps, Sumner
Counsel felt strongly that the wiretaps were unlawful and that everything that flowed
8
from the wiretaps should be suppressed. Sumner Counsel recalled that she reviewed each
wiretap and made an independent judgment on each one as to whether to file a motion to
suppress.
Turning back to the certified questions of law, Sumner Counsel recalled that she
was in discussion with the State for four to six weeks about the question. She was “very
concerned about the trickiness of a certified question” because the appellate court was
“notorious for finding ways not to hear certified questions,” and she told the Petitioner
that she had been “a victim” of that occurrence on more than one occasion. As such,
Sumner Counsel “cautioned” the Petitioner about the “tricky process from a procedural
perspective.” The State agreed to the submission of a certified question of law, and the
State allowed Sumner Counsel flexibility as to how to craft the question. The Petitioner
and Sumner Counsel discussed the certified question and what issues to include. Sumner
Counsel “knew” that some of the nine questions were not dispositive, while some of the
others were. Sumner Counsel explained the risk to the Petitioner that the appellate court
might find certain ones were not dispositive and would decide not to rule on them for this
reason. She advised him that there was “an equal chance” that the appellate court would
go ahead and rule on the questions even if they were not dispositive. She testified,
however, that the main certified questions were dispositive, and if the appellate court
ruled in the Petitioner’s favor on those main questions, the case would “disappear” for the
Petitioner.
Sumner Counsel acknowledged the complexities involved with a certified question
of law and stated that, even though she thought the Petitioner was a very intelligent
person, she knew that the procedural process for review of a certified question was
difficult to understand. She took plenty of time to discuss the complexities with the
Petitioner but could not say whether he was able to understand or absorb them. When
asked if Sumner Counsel thought the Petitioner might have gotten a different impression
than she had from their discussions, she replied, “It’s possible.”
About the first certified question, whether “the initial wiretap Applications lacked
probable cause to justify interception in violation of T.C.A. §§ 40-6-304(c) and 40-6-305,
specifically including the Applications’ failure to demonstrate the statutorily required
nexus between the phone to be intercepted and the alleged illegal activity sought to be
intercepted[,]” Sumner Counsel agreed that the appellate court addressed this question
but declined to rule on several of the requirements of subsection (c) of the statute based
on what it deemed Sumner Counsel’s narrowing of the issue to subsection (c)(4) in the
reply brief. Sumner Counsel disagreed with this, saying that she had focused on one
prong, (c)(4), in her reply brief because of the State’s argument in its brief but had
thoroughly briefed the issue on subsection (c). She stated that she had no regrets about
the way she briefed the issue and that she had done so thoroughly but that the argument
9
was hurt by the appellate court’s limited analysis. As to this argument, and every other
aspect of the case, Sumner Counsel told the Petitioner that she could not guarantee the
outcome at any stage. Sumner Counsel testified that the Petitioner was upset after the
appellate court issued its opinion finding many of the questions were not dispositive and
declining to rule on the merits of those it deemed not dispositive. The Petitioner was
upset with Sumner Counsel for taking away his avenue of appeal.
On cross-examination, Sumner Counsel reiterated that the Petitioner was very
active in his case and asked a lot of questions. Based on the Petitioner’s questions,
Sumner Counsel felt he had a good understanding of the case and his right to a jury trial.
Sumner Counsel believed that the Petitioner understood he was giving up his right to a
jury trial by deciding to plead guilty with certified questions reserved. She testified that
he understood that if he proceeded to trial, his risk of conviction was great but that he
would retain his right to appeal every issue. Sumner Counsel reiterated that she
explained to the Petitioner the risk of dismissal on the “front end” of the certified
questions because of a mistake in the “paperwork” but told him that she was confident
that would not happen because she had successfully pursued certified questions recently
and had done so successfully on the “paperwork” side of it. She did discuss the “other
hazards” of a certified question, including the issue of “calling” something dispositive
when it was not and how the appellate court would decline to rule in that situation. She
discussed with the Petitioner the risk of putting his case in the “Court of Criminal
Appeals hands” versus putting it in the hands of a jury and the difference between a
ninety-plus-year sentence with an automatic right to appeal versus a shorter sentence with
some risks on appeal because of the certified question. Sumner Counsel gave the
Petitioner her best forecast as to how each scenario might play out; however, she stated
that she could not have forecasted that the appellate court would conclude that she had
narrowed the first issue in her brief and then decline to rule on it; this issue, she felt, was
the “heart” of the case. The appellate briefs drafted by Sumner Counsel were admitted
into the record as exhibits.
The Petitioner’s Davidson County attorney (hereinafter “Davidson Counsel”)
testified that he represented the Petitioner on the Davidson County charges. He filed a
motion to suppress the wiretap evidence by tailoring Sumner Counsel’s motion to the
facts in Davidson County. He also observed the suppression hearing held in Sumner
County, argued by Sumner Counsel, where he “learned a lot” about a case such as this
one involving large amounts of drugs over a long period of time. Davidson Counsel
testified that he did not make any substantive changes to Sumner Counsel’s motion;
however, he did litigate the motion himself. Davidson Counsel recalled that he did not
meet with the Petitioner independently from Sumner Counsel and stated that they met
jointly with the Petitioner three or four times. The Petitioner “made it clear” to Davidson
Counsel that the Petitioner thought Sumner Counsel was more knowledgeable and he was
10
more interested in her opinion on the law. Davidson Counsel willingly assumed the role
of “second fiddle.”
As for the certified questions reserved in the Petitioner’s Davidson County plea,
Davidson Counsel testified that Sumner Counsel offered to draft the certified questions,
and he accepted her offer. Davidson Counsel recalled attending a meeting with the
Petitioner and Sumner Counsel about a possible plea deal, and the Petitioner expressed
that he was not happy with the State’s offer. The Petitioner and Sumner Counsel
discussed “the pros and cons” of proceeding to trial, and Davidson Counsel offered his
opinion that, based on his prior dealings in Davidson County Criminal Court, this amount
of drugs often resulted in the maximum sentence. Davidson Counsel recalled that he
initiated discussions about a reduction of the plea offer sentence, but the State declined
and expressed its desire for the Petitioner to turn down the State’s offer and proceed to
trial. Davidson Counsel agreed that the plea deal encompassing all three counties was a
“package deal” from the outset and was never going to be anything other than a global
settlement. Davidson Counsel agreed that he had nothing to do with the certified
questions or the appellate issues.
Davidson Counsel agreed that the Petitioner was motivated to enter a guilty plea
because of the certified questions and that Sumner Counsel felt strongly that if the
appellate court addressed the certified questions, the Petitioner would be granted relief.
The Petitioner was otherwise “reluctant” to enter a guilty plea. Davidson Counsel stated
that Sumner Counsel was confident that the Petitioner would win on appeal but agreed
that there were “prerequisites” to her confidence. He stated, “The qualifiers were there,”
pertaining to Sumner Counsel’s predictions of success on appeal.
The Petitioner testified that Sumner Counsel’s testimony regarding their
relationship was accurate. The Petitioner retained her on the recommendation of another
attorney that she was the premier wiretap lawyer in the State. The Petitioner agreed that
Sumner Counsel was very knowledgeable, although his reading of some of the wiretap
law differed from hers. The Petitioner stated that he was amenable to Sumner Counsel
being the lead counsel for all the suppression hearings, meaning her legal work was used
by his other attorneys in the other counties.
Regarding the certified questions, the Petitioner agreed that he had no knowledge
of the law or procedure surrounding them and was reluctant to take the plea deal because
he was giving up his right to appeal many issues that were not included in the certified
questions. The Petitioner acknowledged that he was exposed to lengthy sentences in the
three counties but that it was more important to him to have his issues heard on appeal.
Sumner Counsel explained to him that certified questions of law are “particular” in the
way they are drafted and that it can be difficult to prevail in an appellate court or even
11
have them considered. The Petitioner recalled that Sumner Counsel had modeled the
certified questions for his case from certified questions she had successfully used in
another case. The Petitioner understood that all of the certified questions would be heard
and that they were each deemed dispositive by agreement of the Petitioner, the State, and
the trial court. Sumner Counsel did not tell the Petitioner that all of the questions were
dispositive, but the Petitioner did not know at the time that the appellate court would be
making an independent conclusion about whether a question was dispositive before
review on the merits. The Petitioner believed that the “barrier” was getting the State and
the trial court to agree, not the appellate court. He was not aware that the appellate court
could “divide” the questions and deem some dispositive and others not.
The Petitioner testified that he became more knowledgeable on the wiretap law
and certified question procedure and that he did not agree with the way Sumner Counsel
framed her argument about the wiretap statute in the appellate brief. The Petitioner
testified that he did not feel that Davidson Counsel was prepared for the suppression
hearing because he used Sumner Counsel’s motion and did not do the research himself or
prepare independently. The Petitioner acknowledged that Sumner Counsel’s appellate
argument employed federal law and that this was a case of first impression at the state
level. Regarding the drafting of the certified questions, the Petitioner testified that he was
present and had input but that the majority of them were drafted by Sumner Counsel.
On cross-examination, the Petitioner testified that he did not knowingly enter his
guilty plea because he would have chosen to go to trial if he had known that the
agreement of the parties was not sufficient to guarantee a finding that the questions were
dispositive and would be considered. He agreed that at the guilty plea submission
hearing, he was asked if he wished to waive his right to trial and that he affirmed that he
did.
The Petitioner’s Rutherford County attorney (hereinafter “Rutherford Counsel”)
testified that the Petitioner’s charges in Rutherford county were not as serious as the other
counties. He stated that most of his contact with the other attorneys was with Sumner
Counsel and that the Petitioner wanted him to follow Sumner Counsel’s lead with regard
to the wiretap issues. His understanding was that all the defenses in the various counties
were based on one theory that Sumner Counsel had researched and prepared. Rutherford
Counsel recalled that in Rutherford County the Petitioner entered a plea to an A or B
felony with a forty-year sentence to be served at 30 percent. He stated that the Petitioner
was not happy about the plea or the sentence, but he agreed to enter the plea in order to
have appellate review of his certified questions of law. Rutherford Counsel agreed that
Sumner Counsel prepared the certified questions of law and that he made no substantive
changes.
12
The post-conviction court subsequently issued an order, citing and adopting the
Davidson County post-conviction court’s order regarding the Petitioner’s claims about
Sumner Counsel’s representation. The Davidson Order found the following:
1. Certified Question
[The] Petitioner’s primary complaint is that he was denied the right
of effective assistance of counsel because his trial and appellate counsel
‘led [the] Petitioner to believe that each of the nine ‘issues’ enumerated in
his guilty plea were being properly preserved for appeal and that each
would be considered by [the appellate court] as nine distinct reasons for
vacating his convictions and dismissing the indictments against him.’ . . .
[The] Petitioner . . . conceded that [Sumner Counsel’s] testimony was
accurate and that she thoroughly discussed his case with him. He explicitly
testified that [Sumner Counsel] described the ‘tricky’ nature of certified
questions and that ‘she did not tell me [all issues raised in the certified
question] were dispositive.’ [The] Petitioner testified that it was his
‘recollection’ that since the State and trial court agreed to allow the
certified question that all the issues would be heard.
[The] Petitioner further testified that the only way he would consider
entering a plea is if the State agreed to a certified question for appeal;
however, [the] Petitioner’s complaint is that (1) he ‘gave up a lot of issues
that were not in the certified question that [Sumner Counsel] said not
dispositive of case’ [sic] and (2) the Court of Criminal Appeals used its
judicial discretion and only addressed issues within the certified question
deemed dispositive and cognizable for review. Accordingly, [the]
Petitioner has failed to demonstrate by clear and convincing evidence that
[Sumner Counsel] or [Davidson Counsel] were ineffective or that he was
prejudiced by any alleged deficiency.
Moreover, [Sumner Counsel] and [Davidson Counsel] testified that
[the] Petitioner was not guaranteed success on appeal and was advised that
not all of the issues raised on appeal were dispositive in nature. [The]
Petitioner agreed to the accuracy of [Sumner Counsel’s] testimony at the
evidentiary hearing and this Court credits the testimony of [Sumner
Counsel].
...
This Court credits the testimony of [Davidson Counsel] and [Sumner
13
Counsel]. The substantial appellate briefing demonstrates that [Sumner
Counsel] argued all of the issues raised in the certified question. It is the
appellate court’s prerogative to determine which of those issues are
dispositive and subject to ruling. For all these reasons, this Court finds that
[the] Petitioner has failed to establish his burden for post-conviction relief
as to this issue and the petition is denied on this ground.
...
3. Arguments Regarding the Legality of T.C.A. § 40-6-304(c)(2)
Post-Conviction Counsel . . . argued that [Sumner Counsel] was ineffective
because the manner she responded to the State [in appellate briefing]
waived the issue [of the legality of T.C.A. § 40-6-304(c)(2)]. This Court
disagrees.
First, [Sumner Counsel] testified that she briefed all of the issues
raised in the certified question, which is supported by the comprehensive
filing introduced as an exhibit to the post-conviction hearing. [Sumner
Counsel] explained that since the State focused its response brief on one
particular issue, she elected to hone in on that issue in her reply brief;
however, she did not waive any issues by devoting her allotted number of
reply brief page [sic] to hone in on countering the State’s arguments. The
Court credits [Sumner Counsel’s] testimony and finds she made a
reasonable strategic decision. [The] Petitioner has not demonstrated by
clear and convincing evidence that [Sumner Counsel] was ineffective. The
Court also notes that [the] Petitioner testified to the accuracy of [Sumner
Counsel’s] testimony.
Second, as the Court noted from the bench during the evidentiary
hearing, this Court addressed the Petitioner’s concerns in its June 20, 2011
Order, which is part of the appellate record. Since the appellate order did
not address this particular issue raised by [the] Petitioner in the certified
question, the trial court order stands. The trial court decision was not
reversed [by the appellate court] and, therefore, remains the law of the case
despite the fact that [the] Petitioner and [Sumner Counsel] disagree with
this Court’s interpretation of the Tennessee Wiretapping Act. Accordingly,
[the] Petitioner has not met his burden of establishing prejudice. [The]
Petitioner’s request for post-conviction relief is denied as to this claim due
to [the] Petitioner’s failure to establish by clear and convincing evidence
that [Sumner Counsel] was ineffective and/or that he was prejudiced by the
alleged deficiency.
14
4. Knowing and Voluntary Plea
In this case, [the] Petitioner faced two options: (1) go to trial facing
significant time and potential consecutive sentencing if convicted (which
both [Sumner Counsel] and [Davidson Counsel] testified they discussed
with [the] Petitioner would be the likely outcome since the trial court
determined the wiretap evidence admissible) or (2) accept the State’s offer.
[The] Petitioner rejected the State’s initial offer and accepted only once
modified so he would not have to cooperate with the State and would be
able to pursue an appeal on the trial court’s ruling as to the admissibility of
the [wiretap evidence]. Ultimately, [the] Petitioner chose to accept the
offer that allowed certainty in sentencing while having the opportunity to
pursue issues of first impression regarding wiretap surveillance on appeal.
Now that the appeal court affirmed the legality of the wiretaps and
elected not to address all of the issues [the] Petitioner wished to pursue,
specifically the non-dispositive issues, [the] Petitioner appears to be
experiencing “buyer’s remorse.”
The typed guilty plea petition entered in this case is highly
descriptive and contains handwritten notations by [the] Petitioner with his
initials on each page. Additionally, the transcript of [the] Petitioner’s guilty
plea hearing speaks for itself and reflects a comprehensive colloquy. After
the State read into the record of its proof against [the] Petitioner, [the]
Petitioner, through counsel, placed modifications to the facts on the record
before [the] Petitioner accepted as generally true the facts of the underlying
charges against him.
...
Accordingly, a review of the record, including the guilty plea
transcript, affirmatively demonstrates that the Petitioner’s guilty plea was
made with an awareness of the consequences, and, as such, the guilty plea
was voluntarily, intelligently, and knowingly entered. . . . [The] Petitioner
has not established his burden by clear and convincing evidence, and his
petition for post-conviction relief is denied as to all claims raised.
The post-conviction court found that Rutherford Counsel had effectively
represented the Petitioner and had agreed to follow Sumner Counsel’s “lead to promote
[the] Petitioner’s chosen trial strategy.” The post-conviction court denied the Petitioner’s
15
petition for post-conviction relief. It is from this judgment that the Petitioner now
appeals.
II. Analysis
The Petitioner raises identical issues to those in his appeal of the Davidson County
post-conviction court’s order, contending that the Rutherford County post-conviction
court erred when it denied his petition because he received ineffective assistance of
counsel. It is because of the ineffective assistance of counsel that he claims his plea was
not knowingly and voluntarily entered. He further claims that the post-conviction court
should have found that Sumner Counsel was ineffective in her advice and preparation
regarding the certified questions of law and that she was ineffective by waiving the
Petitioner’s argument on direct appeal with regards to Tennessee Code Annotated section
40-6-304(c)(2). The State responds that the Petitioner knowingly and voluntarily entered
his plea and that Sumner Counsel prepared proper certified questions of law with
dispositive issues to reserve on appeal and properly advised the Petitioner as to the nature
of certified questions of law. The State further responds that Sumner Counsel did not
waive the Petitioner’s argument regarding Tennessee Code Annotated section 40-6-
304(c)(2) on appeal.
In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2014). The post-conviction court’s findings of fact are conclusive
on appeal unless the evidence preponderates against it. Fields v. State, 40 S.W.3d 450,
456-57 (Tenn. 2001). Upon review, this Court will not re-weigh 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 issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction
court’s conclusions of law, however, are subject to a purely de novo review by this Court,
with no presumption of correctness. Id. at 457.
The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court’s evaluation of a claim for ineffectiveness:
First, the [petitioner] must show that counsel’s performance was deficient.
16
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the [petitioner] by the Sixth
Amendment. Second, the [petitioner] must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the [petitioner] of a fair trial, a trial
whose result is reliable. Unless a [petitioner] makes both showings, it
cannot be said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772
S.W.2d 417, 419 (Tenn. 1989).
In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show
that counsel’s representation fell below an objective standard of reasonableness.” House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996)). When evaluating an ineffective assistance of counsel claim, the reviewing
court should judge the attorney’s performance within the context of the case as a whole,
taking into account all relevant circumstances. Strickland, 466 U.S. at 690; State v.
Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should
avoid the “distorting effects of hindsight” and “judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Strickland, 466 U.S. at 689-90. In doing so, the 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.” Burns, 6 S.W.3d at 462.
Finally, we note that a defendant in a criminal case is not entitled to perfect
representation, only constitutionally adequate representation. Denton v. State, 945
S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only
what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed
to have been ineffective merely because a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim.
App. 1980). “The fact that a particular strategy or tactic failed or hurt the defense, does
not, standing alone, establish unreasonable representation. However, deference to
matters of strategy and tactical choices applies only if the choices are informed ones
based upon adequate preparation.” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d
at 369).
17
If the petitioner shows that counsel’s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Strickland, 466 U.S. at
694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability
must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994). The definition of “reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
When ineffective assistance of counsel is alleged in the context of a guilty plea, the
prejudice analysis
focuses on whether counsel’s constitutionally ineffective
performance affected the outcome of the plea process. In other words, in
order to satisfy the “prejudice” requirement, the defendant must show that
there is 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 also Grindstaff v. State, 297 S.W.3d 208,
216-17 (Tenn. 2009).
A. Knowing and Voluntary Plea
The Petitioner claims that his plea was unknowingly and involuntarily entered
because he received the ineffective assistance of counsel. He stated that after the trial
court ruled on his motion to suppress, “instead of going to trial, [Sumner Counsel]
negotiated a plea agreement, where the cases in all three counties would be resolved for a
sentence of 40 years.” He claims that because Sumner Counsel was lead counsel in the
cases throughout the various counties, her actions and decisions should be attributed to
the attorneys in those other counties. The State responds that the evidence presented
shows that the Petitioner’s plea was entered knowingly and voluntarily, and that without
a transcript of the Petitioner’s guilty plea, which the States notes is not included in the
record, we are to presume the post-conviction’s court findings correct. We agree with the
State.
To be valid, a guilty plea must be entered knowingly, voluntarily, and
intelligently. See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); State v. Mackey, 553
S.W.2d 337, 340 (Tenn. 1977). A plea meets constitutional muster when the defendant
understands both what the plea connotes and its consequences, Blankenship v. State, 858
S.W.2d 897, 904 (Tenn. 1993) (citing Boykin, 395 U.S. at 244), and makes a voluntary
and intelligent choice from the alternative courses of action available to plead guilty.
Jaco v. State, 120 S.W.3d 828, 831 (Tenn. 2003) (citing North Carolina v. Alford, 400
18
U.S. 25 (1970)). A petitioner’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.” Blackledge v. Allison,
431 U.S. 63, 74 (1977).
When determining the knowing and voluntary nature of a guilty plea, the standard
is “whether the plea represents a voluntary and intelligent choice among the alternative
courses of action open to the defendant.” Alford, 400 U.S. at 31. A reviewing court can
look to a number of factors to find a “knowing and intelligent plea,” including “[t]he
relative intelligence of the petitioner, the degree of his familiarity with criminal
proceedings, the opportunity to confer with competent counsel and the trial court
regarding the charges faced, and the desire to avoid a greater punishment resulting from a
jury trial.” Blankenship, 858 S.W.2d at 904. The petitioner must have an understanding
of the charges against him and the consequences of pleading guilty, including “the
sentence that he will be forced to serve as the result of his guilty plea and conviction.”
Id. at 905. A plea is not “voluntary” if it results from ignorance, misunderstanding,
coercion, inducements, or threats. Id. at 904.
The post-conviction court, in its order which adopted the Davidson Order, found
that Petitioner had affirmed at the guilty plea hearing that he was making his own
decision to plead guilty, as reflected in the “comprehensive colloquy” placed before the
post-conviction court. The post-conviction court held that the record and plea transcript
“affirmatively demonstrates that the Petitioner’s guilty plea was made with an awareness
of the consequences, and, as such, the guilty plea was voluntarily, intelligently, and
knowingly entered.”
The evidence presented at the post-conviction hearing was that it was the
Petitioner’s decision to enter a guilty plea and reserve a certified question of law. He was
not “happy” about the plea, but he chose not to risk a trial where he faced possible
lengthy sentences. Instead, he elected to accept the State’s offer that greatly reduced his
sentence while still retaining review of his certified questions of law. Sumner Counsel
testified that the Petitioner was very engaged in the preparation of his case and in the
decision whether to go to trial or plead guilty. Rutherford and Davidson Counsels
affirmed that this was their impression of the discussions they observed. Sumner Counsel
also stated that she did not like the State’s offer and felt that the State was charging the
Petitioner excessively. She further testified that she gave her clients the option to
proceed to trial and did not shy away from trying a case. In this case, however, where the
Petitioner faced a lengthy sentence approaching 100 years, Sumner Counsel encouraged
him to enter a plea. Together, Sumner Counsel and the Petitioner weighed the risk of
taking his case to trial, where he faced a lengthy sentence but retained all his rights of
appeal, versus entering a guilty plea for a sentence of less than half the potential prison
19
time but reduced rights of appeal. The Petitioner affirmed that he was asked at the guilty
plea hearing whether he understood his right to trial and that he was giving up that right,
which he stated he did. Based on this evidence, we conclude that the Petitioner’s plea
was entered knowingly and voluntarily and that Counsel’s representation of the Petitioner
with regard to his decision was effective. Thus, he is not entitled to relief.
B. Certified Questions of Law
The Petitioner next claims that Sumner Counsel was ineffective in her preparation
of the certified questions of law and in her educating the Petitioner on the applicable law.
The Petitioner claims that Sumner Counsel admitted that she knew that several of the
certified questions were not dispositive but that she also knew that the Petitioner was only
accepting the plea offer because he wanted his issues heard on appeal. He contends that
Sumner Counsel “crafted [] certified question[s] that she knew to be ineffective in
assisting [the Petitioner] to allow that to happen.” The State responds that the evidence
does not preponderate against the post-conviction court’s findings that Sumner Counsel
did not guarantee the Petitioner success on appeal and informed the Petitioner in advance
that his success on appeal depended on the appellate court’s interpretations of the law.
We agree with the State.
The post-conviction court found that the Petitioner had agreed that Sumner
Counsel had advised him of the procedural risks of the certified question and that she
advised that she could not guarantee that his questions would be deemed dispositive by
the appellate court. The post-conviction court found that Sumner Counsel in no way
guaranteed him success on appeal and credited Sumner Counsel’s testimony that she had
adequately advised him of the risks related to the decision to proceed in this manner.
Our review of the evidence shows that the evidence does not preponderate against
these findings and that Sumner Counsel was not ineffective in her representation of the
Petitioner regarding the certified questions of law. Sumner Counsel advised the
Petitioner that there was the possibility that his questions would not be deemed
dispositive and that this meant there was a risk that his issues would not be heard.
Sumner Counsel fully understood the importance of the certified questions to the
Petitioner and spent multiple meetings discussing the option to take his case to trial or
accept a lesser sentence with the certified questions reserved. Sumner Counsel’s prior
experience with certified questions on appeal allowed her to advise the Petitioner of the
risks but also the possibility for success. Sumner Counsel was not ineffective in her
representation of the Petitioner in this regard.
The Petitioner points us to several decisions promulgating the standards and
limitations for certified questions of law to which he claims Sumner Counsel did not
20
adhere. State v. Preston stated that it was the appellate court’s determination, not that of
the trial court and the agreement of the parties, as to whether the certified question was
dispositive. 759 S.W.2d 647 (Tenn. 1988). The Petitioner argues that Sumner Counsel
was aware of this law, however, she failed to caution the Petitioner that the certified
questions might not be heard. We disagree. The evidence shows that Sumner Counsel
advised the Petitioner that, although not all questions would be deemed dispositive, she
chose to include them anyway because it was her experience in the past that the appellate
court would sometimes overlook whether a question was dispositive and choose to
review it. This, however, was not “guaranteed” by Sumner Counsel, and the Petitioner
testified that he was informed of that. The Petitioner is not entitled to relief on this issue.
C. Appellate Argument
The Petitioner lastly contends that Sumner Counsel provided ineffective assistance
of counsel on appeal when she “waived [the Petitioner’s] primary argument on his direct
appeal,” that being his argument related to the probable cause requirement found at
Tennessee Code Annotated section 40-6-304(c)(2). He contends that Sumner Counsel
improperly narrowed his appellate argument to one prong of the statute, (c)(4), in her
reply brief, causing the appellate court to waive consideration of what he contends was
his strongest argument. The State responds that Sumner Counsel’s decisions to “use her
reply brief to hone in on the specific issue the State focused on in its response brief was a
reasonable strategic decision.” We agree with the State.
The post-conviction court adopted the following findings with respect to this
argument:
First, [Sumner Counsel] testified that she briefed all of the issues raised in
the certified question, which is supported by the comprehensive filing
introduced as an exhibit to the post-conviction hearing. [Sumner Counsel]
explained that since the State focused its response brief on one particular
issue, she elected to hone in on that issue in her reply brief; however, she
did not waive any issues by devoting her allotted number of reply brief
page [sic] to hone in on countering the State’s arguments. The Court
credits [Sumner Counsel’s] testimony and finds she made a reasonable
strategic decision. [The] Petitioner has not demonstrated by clear and
convincing evidence that [Sumner Counsel] was ineffective. The Court
also notes that [the] Petitioner testified to the accuracy of [Sumner
Counsel’s] testimony.
The evidence does not preponderate against the trial court’s findings. Sumner
Counsel provided her original appellate brief and reply brief as exhibits at the hearing and
21
testified that she argued all prongs of the statute in her first brief and then, after the State
responded, she addressed their particular argument in her reply brief. She stated that
nothing that she did limited or waived her argument as to certain aspects of the statute
and that she felt the appellate court had incorrectly determined that she had done so. We
have reviewed the briefs from the direct appeal and have determined that the evidence
does not preponderate against the post-conviction court’s finding that Sumner Counsel
fully briefed the Petitioner’s argument related to the probable cause requirement found at
Tennessee Code Annotated section 40-6-304(c). Sumner Counsel addressed the
subsections of the statute in her brief that she felt most strongly aided her argument that
the wiretaps were unlawful. While this Court’s decision did limit the Petitioner’s
argument, we conclude that the Petitioner has not shown that Sumner Counsel was
ineffective in this regard; she made a strategic decision to focus her argument in the reply
brief that we will not second guess. The Petitioner is not entitled to relief.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the
post-conviction court’s judgment.
________________________________
ROBERT W. WEDEMEYER, JUDGE
22