Jonathan D. Drewry v. State of Tennessee ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 10, 2016
JONATHAN D. DREWRY v. STATE OF TENNESSEE
Appeal from the Circuit Court for Williamson County
No. CR048004 Michael Binkley, Judge
No. M2015-01934-CCA-R3-PC – Filed September 1, 2016
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The Petitioner, Jonathan D. Drewry, pleaded guilty to aggravated rape, aggravated
assault, and aggravated kidnapping and received an effective sentence of twenty-five
years in the Department of Correction. The Petitioner filed a post-conviction petition,
and the post-conviction court denied relief following a hearing. On appeal, the Petitioner
maintains that he received the ineffective assistance of counsel in the trial court. 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 TIMOTHY L. EASTER, JJ., joined.
Matthew J. Crigger, Brentwood, Tennessee, for the appellant, Jonathan D. Drewry.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Kim Helper, District Attorney General; and Jessica Borne, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
I. Facts
A Williamson County grand jury indicted the Petitioner for aggravated rape,
attempted second degree murder, aggravated kidnaping, and aggravated assault. At the
guilty plea submission hearing, the State provided a factual basis in support of the
Petitioner‟s guilty plea: On February 13, 2012, the victim was staying at a Quality Inn in
Williamson County, Tennessee. The victim left her hotel room to eat dinner at a nearby
Shoney‟s restaurant. While eating dinner, she “came in contact with” the Petitioner.
After returning to her hotel room, the front desk notified her that the Petitioner was there
to return some money she had left in the booth at the restaurant. The Petitioner came to
the victim‟s room and gave her the money. The victim invited the Petitioner in for a
drink where, at some point in the evening, he made unwanted sexual advances. When the
victim declined the sexual advances, the Petitioner assaulted and forcibly raped the
victim. After penetrating the victim, the Petitioner began to choke the victim. The victim
was able to escape from the hotel room, but the Petitioner caught her and dragged her
back to the room before choking her once again to the point of unconsciousness. When
she regained consciousness, she successfully escaped from the Petitioner. For these
crimes, the Petitioner pleaded guilty to aggravated rape, aggravated assault, and
aggravated kidnapping for an effective sentence of twenty-five years.
At the post-conviction hearing, the Petitioner testified that he had completed his
high school education and, at the time of his arrest, was employed as a cook and a waiter
at Shoney‟s restaurant. The Petitioner confirmed that these criminal charges were his
only charges as an adult.
The Petitioner testified that he was not “entirely” pleased with his trial attorney‟s
(“Counsel”) representation. He stated that, after Counsel was retained, the Petitioner
underwent a mental evaluation with a psychiatrist, Dr. Montgomery. The Petitioner said
that Counsel never reviewed with him the results of Dr. Montgomery‟s evaluation but did
tell the Petitioner that Dr. Montgomery believed he was not competent to stand trial. The
Petitioner said that he did not see the psychiatric evaluation report until after he was in
prison and that he requested a copy of his discovery from the circuit court. The Petitioner
identified his February 1, 2014 letter requesting discovery. The Petitioner explained that
he had asked Counsel to see the discovery in his case three or four times but that she had
never provided him with discovery, so he sought other avenues for obtaining the
discovery materials.
The Petitioner identified a police report with apparent inconsistences that he found
in the discovery. One officer said that, at the time of arrest, the Petitioner was lying in
bed with a blanket pulled over his head while another officer reported that the Petitioner
was sitting in bed watching television with the light on. Next, he identified an emergency
room report, once again an item included in discovery, that he did not see until he was in
prison. The report indicates the victim disclosed that the sex was consensual until the
Defendant attempted anal sex. She told emergency room personnel that she was able to
get away from the Defendant and that no anal penetration occurred. The toxicology
results showed a blood alcohol of “290,” and the victim tested positive for marijuana.
There were no obvious tears, lacerations, or bruising to the victim‟s genitalia. Within the
discovery materials, the Petitioner also found the results of the DNA testing, which found
no sperm from the Defendant but sperm material from three unknown males.
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The Petitioner testified that Counsel met with him three or four times at the county
jail, with the remainder of the meetings at court appearances. He described their
interactions at court as very brief. During the first meeting at the jail, Counsel discussed
the financial aspect of her representation. The Petitioner recalled that, at the second
meeting at the jail, Counsel told him the charges and said he would undergo a psychiatric
evaluation. At the third meeting, Counsel sent someone from her office “to be available”
during the psychiatric evaluation.
The Petitioner testified that Counsel had told him that the State would also be
conducting a psychiatric evaluation of him with Dr. Moore. Counsel said that the State
would “try to use that against me,” but he was never told about the results of that
evaluation.
The Petitioner testified that, without the discovery materials, he was unable to
make a knowing and intelligent decision about pleading guilty. He said that Counsel told
him that she would not be taking his case to trial because his father could not afford the
cost of trial. He said that she further told him that he would be found guilty at trial with a
possible sentence between forty-five and seventy-five years if the trial court ordered
consecutive sentences. The Petitioner said that, had he seen the discovery materials, he
would have sought a trial.
On cross-examination, the Petitioner testified that Counsel had represented him
when he was thirteen years old and had been charged with attacking his mother. The
Petitioner agreed that Counsel told him that this juvenile charge could be used to enhance
his sentence. The Petitioner acknowledged a statement he made during his psychiatric
evaluation with Dr. Montgomery that Counsel was “good” and “helping” him with the
case. He explained that at the time he made the statement, he was “off” his medication
and relying solely on what his father was telling him.
The Petitioner testified that he underwent a second psychiatric evaluation with Dr.
Moore a month later at the State‟s request. He agreed that the report indicated that he had
once again expressed that he was happy with Counsel‟s representation. When asked what
had changed his mind, the Petitioner responded that he did not “know everything” at the
time of his guilty plea because Counsel had failed to advise him of important aspects of
discovery. In the same report, the Petitioner references that there is a “lack of semen”
making the State‟s case stronger for physical abuse rather than sexual abuse. The
Petitioner explained that he knew about the semen based upon statements made to him by
Dr. Montgomery.
The Petitioner agreed that the State‟s offer of a twenty-five-year sentence was “a
lot” better than the potential forty to seventy-five-year range if convicted. He agreed that
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he considered this when deciding to plead guilty but that he also considered Counsel‟s
statement that she would withdraw. He said that he had believed that if Counsel
withdrew, “it would all be stacked on top of each other and [he] was going to be
railroaded.” He agreed that Counsel told him that the trial court would appoint another
attorney but that she also said the new attorney would not have enough time to prepare
for trial.
The Petitioner testified that on the several occasions he asked Counsel for the
discovery, she told him that “it wasn‟t a good idea for me to see it or have it because it
was sensitive material, she didn‟t want people going through it.” He confirmed that she
did not discuss the content of the discovery with him either.
The Petitioner testified that, when Counsel presented the State‟s offer of twenty-
five years, she told him that if he did not accept the State‟s offer she would have to
withdraw because his father could not afford trial costs. Counsel also told the Petitioner
that he would “lose” at trial. The Petitioner maintained that Counsel did not discuss any
of the State‟s evidence with him. The Petitioner recalled the guilty plea submission
hearing and agreed that the trial court reviewed his rights with him and advised him that
the trial court would appoint an attorney if the Petitioner chose to proceed to trial. He
affirmed that he told the trial court that he agreed that he was guilty based upon the facts
recited by the State. The Petitioner agreed that the trial court took a break for lunch,
allowing the Petitioner two hours to further discuss the plea agreement with Counsel, and
after the break he pleaded guilty. He explained that he was scared and believed that
twenty-five years was better than forty to seventy-five years. He stated that he did not
now believe he would have received a forty-year sentence based upon the discovery.
On redirect examination, the Petitioner testified that his statements to both
psychiatrists during his evaluations were made early in the course of Counsel‟s
representation of him.
Counsel testified that she was retained to represent the Petitioner in February
2012. Initially, she raised the insanity defense and diminished capacity. Counsel
identified the psychiatric evaluation and could not recall whether she provided the
Petitioner with a copy but stated that she reviewed the results with the Petitioner.
Counsel acknowledged that the report indicated that the Petitioner “was not able to
appreciate the wrongfulness of his alleged actions.” She agreed that while the psychiatric
examiner, Dr. Montgomery, considered the Petitioner‟s intoxication, he also considered
that the Petitioner was not taking his medications and had “complicated underlying
psychiatric disorders.”
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Counsel testified that she also reviewed Dr. Moore‟s report with the Petitioner.
The report, contrary to Dr. Montgomery‟s evaluation, indicated that the Petitioner did not
have a mental illness or condition at the time of the alleged offense that would have
caused him to lack the capacity to form the requisite mental state of intent. Counsel said
that she discussed Dr. Moore‟s report with Dr. Montgomery and that “[Dr.
Montgomery‟s] opinion was diluted.”
Counsel testified that she could not recall whether she provided the Petitioner with
copies of the discovery, but she reviewed all the evidence with him. She identified the
police report and agreed that in one officer‟s summary the victim says only that the
Petitioner made “sexual comments.” The report makes no reference to sex or
penetration. Counsel identified the emergency room records. She agreed that the records
stated that the victim reported the sex was consensual and that no penetration actually
occurred. Counsel identified the DNA report and agreed that the report indicated that
testing of both a vaginal and an anal swab failed to reveal the presence of semen.
Counsel testified that she did not bring any documentation to verify whether or not
she had sent any of the discovery to the Petitioner. Counsel agreed that she provided
post-conviction counsel with a disc on June 19, 2014, of her files with regard to the
Petitioner. Counsel agreed that there was no written communication to the Petitioner in
her files and one email to the State.
Counsel testified that she was aware that the Petitioner was arrested in his hotel
room without a search warrant. When asked why she did not raise this in a suppression
motion, she stated that the Petitioner “made some statements to [police] fairly quickly.”
Counsel disagreed that a successful suppression would have made a “big difference” in
the case, explaining that the plea was entered before “we got to that place where we
would even be doing suppression.”
On cross-examination, Counsel agreed that, although the victim told medical
personnel that the vaginal intercourse was consensual, the victim also indicated that the
Petitioner choked her. Counsel stated that in addition to the written reports, there were
audio recordings of statements from both the victim and the Petitioner. Counsel
confirmed that there was “voluminous evidence” in this case, and she reviewed the
evidence with the Petitioner. Counsel said that she also ran a criminal history on the
victim to check for impeachable offenses.
Counsel testified that she filed the motion for mental evaluation quickly based
upon her representation of the Petitioner when he was a juvenile. Counsel said that she
had two interviews with the Petitioner at the jail, and she met with him at the seven or
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eight court dates. About her conversation with Dr. Montgomery following her receipt of
Dr. Moore‟s psychiatric evaluation of the Petitioner, Counsel said:
Well, I considered [Dr. Montgomery‟s] opinion diluted and unable
to withstand the [competency] hearing when he stated to me that basically
in so many words said, that I didn‟t say that during the whole time he
wasn‟t aware of what he was doing.
Counsel again affirmed that she had reviewed the psychiatric evaluations with the
Petitioner and talked with the Petitioner about speaking with Dr. Montgomery in light of
Dr. Moore‟s report. She stated that she discussed “other documents” with the Petitioner
as well. Counsel said that the Petitioner did not want to go to trial. Counsel agreed that
she informed the Petitioner that she would be unable to represent him at trial but denied
telling him that a new attorney would not have enough time to prepare for trial.
After both parties had finished their examinations, Counsel offered, “Since this is
about me, I do want to say that there is information that I had given the Juvenile
representation that became part of this process that is not documented anywhere here. . . .
So, I can give more detail if it‟s appropriate.” The trial court asked the Petitioner if it was
okay for Counsel to testify about the juvenile proceedings, and the Petitioner said he did
not have an issue with Counsel “bringing that up.” Counsel clarified that she would be
testifying about conversations with the Petitioner during her representation of him. The
trial court asked the Petitioner if he would waive the attorney client privilege in order to
allow Counsel to testify about their communication during Counsel‟s representation in
the juvenile proceedings. The Petitioner said yes.
Counsel testified that the Petitioner‟s juvenile offense was a “serious sexual
offense” during which the Petitioner‟s mother “felt that she was going to be raped” and
subsequently suffered severe PTSD. The Petitioner was placed in Hermitage Hall, a
facility for sex offenders, and later placed in a group home. While living in the group
home, the Petitioner alleged he had “been involved in a murder.” After much discussion,
“nothing else become of that [because they] were not able to determine whether or not
that was real.” Counsel stated that she could not “tell if [the Petitioner was] being
truthful or not” and, therefore, he could not testify. She said she also warned the
Petitioner that his mother would likely be called to testify against him during the
sentencing hearing. She stated that this information was “important . . . because that all
went in to the processing of coming up with [a] plea agreement that ultimately was
acceptable to him.”
Following the hearing, the post-conviction court issued a written order denying
relief. The post-conviction court concluded that the Petitioner had failed to establish by
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clear and convincing proof that he was entitled to post-conviction relief. It is from this
judgment that the Petitioner appeals.
II. Analysis
On appeal, the Petitioner maintains that the post-conviction court erred in denying
relief because Counsel was ineffective. The Petitioner contends that Counsel rendered
deficient performance by telling the Petitioner, one year into her representation, that she
would withdraw if he did not accept the plea offer and decided to proceed to trial. He
further contends that Counsel‟s performance was deficient because she failed to provide
him with discovery. The Petitioner asserts that, without the discovery materials, he was
unable to form a knowing and intelligent decision about pleading guilty. The State
responds that there is no evidence that Counsel rendered deficient performance or that the
Petitioner suffered prejudice from any alleged deficiency. We agree with the State.
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). 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) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-
conviction court‟s factual findings are subject to a de novo review by this Court;
however, we must accord these factual findings a presumption of correctness, which can
be overcome only when a preponderance of the evidence is contrary to the post-
conviction court‟s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).
A post-conviction court‟s conclusions of law 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. 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
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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).
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
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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). In the context of a guilty plea,
as in this case, the effective assistance of counsel is relevant only to the extent that it
affects the voluntariness of the plea. Therefore, to satisfy the second prong of Strickland,
the petitioner 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) (footnote omitted); see also Walton v. State, 966
S.W.2d 54, 55 (Tenn. Crim. App. 1997).
In a written order issued after the hearing, by its findings, the post-conviction
court accredited Counsel‟s testimony that she reviewed all of the discovery materials with
the Petitioner and that the Petitioner did not want to proceed to trial. The post-conviction
court found that the Petitioner had failed to prove by clear and convincing evidence the
allegations set forth in his petition and that the Petitioner had failed to prove any
prejudice from Counsel‟s alleged deficient performance.
The evidence does not preponderate against the post-conviction court‟s findings.
Counsel testified that she met with the Petitioner two times at the jail and seven or eight
times at court. She stated that she had reviewed all discovery with the Petitioner as well
as the results of both psychiatric evaluations and the possible impact of those evaluations.
At the post-conviction hearing, the Petitioner acknowledged that during the evaluations,
he exhibited a knowledge and understanding of some of the specific evidence alleged
against him, while also maintaining that Counsel had not reviewed the evidence with
him. Counsel testified that the Petitioner did not want a trial on the charges and,
therefore, she worked toward a settlement.
Accordingly, the Petitioner has failed to prove by clear and convincing evidence
that Counsel‟s performance was deficient and that “but for” the alleged deficiency the
Petitioner would have proceeded to trial. The Petitioner is not entitled to relief.
III. Conclusion
After a thorough review of the record and relevant authorities, we conclude that
the post-conviction court properly denied post-conviction relief. Accordingly, we affirm
the judgment of the post-conviction court.
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ROBERT W. WEDEMEYER, JUDGE
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