Brannon Blake Black v. State of Tennessee ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 3, 2015
BRANNON BLAKE BLACK v. STATE OF TENNESSEE
Appeal from the Circuit Court for Obion County
No. CC-14-CR-1 William B. Acree, Judge
No. W2014-01264-CCA-R3-PC - Filed March 23, 2015
The Petitioner, Brannon Blake Black, appeals the post-conviction court‟s denial of relief
from his conviction for rape, a Class B felony. On appeal, he argues that he received
ineffective assistance of counsel in connection with his guilty plea. 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 JOHN EVERETT
WILLIAMS and ALAN E. GLENN, JJ., joined.
David L. Hamblen, Union City, Tennessee, for the Defendant-Appellant, Brannon Blake
Black.
Robert E. Cooper, Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Thomas A. Thomas, District Attorney General; and Jim Cannon, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
On January 18, 2013, the Petitioner entered a best-interest plea of guilty for rape
of his 13-year-old half-sister, M.B.1 Pursuant to the negotiated plea agreement, the
Petitioner received a sentence of eight years‟ confinement at 100%, followed by
community supervision for life.2
1
It is the policy of this court to refer to victims of sexual assault by their initials to protect their
anonymity.
2
Pursuant to the plea agreement, the State dismissed the remaining charges against the Petitioner,
At the guilty plea hearing, the State summarized the underlying facts of the
Petitioner‟s conviction as follows:
[O]n April 30, 2012[,] . . . there were several actual sexual acts. The
one that the State is relying upon in this [case] is of the penetration of the
13-year-old victim with the [Petitioner]‟s tongue, which constitutes
penetration, under the statute, which also constitutes the crime of rape. It
would have been the [S]tate‟s proof in this matter . . . that this was used
because of force or coercion, and that subsequent to that, [the victim] did
flee the house and seek help from next door and actually reported this
almost immediately, and then it was reported to law enforcement.
Following the State‟s recitation of the facts, the trial court informed the Petitioner that
“the purpose of this hearing is for the [c]ourt to determine whether to accept [his] best
interest plea to the crime of rape,” and to ensure that the Petitioner‟s plea is entered
“knowingly and voluntarily[.]” The court told the Petitioner that he could consult with
counsel at any point during the hearing, and the Petitioner indicated that he understood.
The trial court and Petitioner then engaged in the following colloquy:
COURT: You have been charged with the crime of rape. Do
you understand the nature of this charge?
PETITIONER: Yes, sir.
COURT: This is a Class B felony and you are being sentenced
as a violent offender, which means your sentence of 8
years shall mean exactly that, you shall serve 8 years
in the Tennessee Department of Correction[]. Do you
understand that?
PETITIONER: Yes, sir.
...
COURT: You‟re not eligible for any early release or anything of
that nature. Do you understand that?
PETITIONER: Yes, sir.
which included three counts of rape, three counts of rape of a child, two counts of sexual battery, and
three counts of incest.
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COURT: The range of punishment for this offense is 8 to 12
years and a fine of $25,000. Do you understand that?
PETITIONER: Yes, sir.
COURT: [Petitioner], you also were charged with the crime of
rape of a child, and upon recommendation by the State,
the charges will be dismissed, but you need to
understand this; that had you gone to trial on those
charges and were found guilty of the crime of rape of a
child, your range of punishment would be 25 years to
40 years. Do you understand that?
PETITIONER: Yes, sir.
COURT: And you would have to serve that entire sentence. Do
you understand that?
PETITIONER: Yes, sir.
The court informed the Petitioner that he had the right to plead not guilty and explained
to the Petitioner his rights and the rights he would be giving up by entering a best interest
plea of guilty. The Petitioner indicated that he understood his rights and what rights he
would be waiving. He agreed that counsel had reviewed and advised him about the plea
agreement, and he assured the court that he was entering his plea “voluntarily and
without any threats . . . or promises.” The court then explained to the Petitioner the
requirements for community supervision for life:
COURT: [Petitioner], you will be on community supervision for
the rest of your life. Do you understand that?
PETITIONER: Yes, sir.
COURT: You will be on probation for the rest of your life. You
will be on the sex offender registry. You will have to
report to your probation officer for the rest of your life.
You‟re 19 years old and that‟s going to be a long time.
Do you understand that?
PETITIONER: Yes, sir.
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COURT: There will be a lot of restrictions placed upon you. For
example, you can‟t be within a minimum of 1,000 feet
of a school. Do you understand that?
PETITIONER: Yes, sir.
COURT: If you violate any of these conditions, they will bring
you back into court and you will receive additional
time in jail. Do you understand that?
PETITIONER: Yes, sir.
COURT: Do you still wish to enter this plea?
PETITIONER: Yes, sir.
After the hearing and upon finding that the Petitioner‟s guilty plea was knowing
and voluntary, the trial court accepted the Petitioner‟s guilty plea and imposed a sentence
of 8 years‟ confinement. On January 13, 2014, the Petitioner filed a timely pro se
petition for post-conviction relief, alleging that he received ineffective assistance of
counsel and that his guilty plea was unknowing and involuntary. The Petitioner was
subsequently appointed appellate counsel, but no amended petition was filed on his
behalf.
At the June 3, 2014 evidentiary hearing, the Petitioner testified that his family
hired counsel to represent the Petitioner in the instant case. The Petitioner‟s case
originated in juvenile court but was transferred to criminal court where he was indicted in
October 2012. The Petitioner testified that after he was indicted, he met with counsel one
time to discuss his case before pleading guilty in January 2013. He claimed that counsel
did not explain to him the charges against him or the possible consequences he was
facing; however, upon further questioning by appellate counsel, the Petitioner stated, “I
think [counsel] told me it was an 8-year sentence” for rape. He testified that counsel told
him that rape of a child, a Class A felony, was “serious” and likely carried a 40-year
sentence. He claimed that counsel did not tell him about community supervision for life
and that he learned about it the day that he pleaded guilty. Upon further questioning by
the court, the Petitioner clarified that he met with counsel “probably three times” all
together, and counsel “would talk a little bit about [his case] every time[.]” He recalled
that his grandmother, Frieda Serguson, would “sometimes” go with him to the meetings
with counsel.
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The Petitioner claimed that counsel never provided him a copy of the indictment
against him, reviewed the relevant statutes, or discussed the range of punishment for
Petitioner‟s charges. He also claimed that counsel never showed him the warrant for his
arrest or the police report detailing the events of the incident. According to the police
report, the Petitioner‟s mother was present in the house where the incident took place;
however, the Petitioner testified that counsel never met with his mother or asked her any
questions about the incident. The Petitioner testified that counsel did not adequately
advise him of the ramifications of his best-interest plea and that he believed he would
only serve 30% of the 8-year sentence.
The Petitioner agreed that at his guilty plea hearing, the trial court reviewed the
charges and the plea agreement with him prior to him pleading guilty. He testified that
he was “overwhelmed” at the hearing and only “somewhat” remembered talking to the
judge. He recalled the judge informing him that he would serve 100% of his 8-year
sentence and he would be subject to lifetime community supervision but claimed that it
did not “register” at the time. He stated that he felt like it was “too late” to stop the
proceedings or discuss the plea agreement with counsel.
Counsel testified that he was hired by the Petitioner‟s grandmother, Frieda
Serguson, to represent the Petitioner in the instant case. He estimated that he met with
the Petitioner 12 to 15 times to discuss his case. He attended the transfer hearing at
juvenile court and listened very closely to M.B.‟s testimony. He recalled that M.B.
“made an excellent witness” and was “very detailed” about the incident. Counsel stated
that his “biggest problem” in the case was talking to the Petitioner because the Petitioner
“didn‟t remember doing anything.” Counsel reviewed the police report with the
Petitioner and asked him about each allegation, but the Petitioner had “no response.”
Counsel believed that “to win a case like this,” the jury would need to hear some type of
defense from the Petitioner and stated that “going to trial with a client who doesn‟t
remember anything . . . is about the wors[t] case scenario you can get in.”
Counsel provided the court with documents from his case file, including copies of
the relevant statutes, possible sentencing ranges, and the police report, which were
introduced into evidence as Exhibit 4. Counsel stated that he reviewed all of these
documents with the Petitioner and explained the State‟s burden of proof if he were to
proceed to trial. Counsel also reviewed the State‟s plea offer with the Petitioner “[q]uite
a few times.” He “went into detail about the fact that [the plea offer] was 100%” and told
the Petitioner about the difficulty of complying with lifetime community supervision. He
recalled that on the day of the Petitioner‟s guilty plea hearing, he took the Petitioner and
his family into the hall and reviewed the guilty plea form with the Petitioner to ensure
that he understood it. When asked whether he believed that he described the plea
agreement and the risks of going to trial in sufficient detail to allow the Petitioner to
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make an informed decision, counsel responded, “I don‟t know how I could have done
anything else in detail. I mean, we discussed this thing over and over and over again.”
On cross-examination, counsel testified that Ms. Serguson told him that the
Petitioner‟s mother, Dawn Black, would not “help them.” He recalled seeing Ms. Black
at several hearings with the victim and the victim‟s father. He believed Ms. Black would
be an adversarial witness because she was also the victim‟s mother and was listed on the
State‟s witness list.
Frieda Serguson, the Petitioner‟s grandmother, testified that she hired counsel to
represent the Petitioner. She and the Petitioner met with counsel three times during his
representation, and she was present at the Petitioner‟s guilty plea hearing. She recalled
that prior to the hearing, she and the Petitioner went into the hall with counsel to decide
whether he would accept the plea agreement. She stated that counsel “kept saying best-
interest plea, best-interest plea. . . [T]hat‟s the only thing you can do.” She claimed that
she did not “know that [a best-interest plea] means guilty.” She acknowledged that
counsel explained that if the Petitioner went to trial he could face a possible punishment
of 25 years or more. She understood the plea agreement to be for eight years and
believed that the Petitioner would only have to serve “a percentage of that.” She stated
that counsel “never said [the Petitioner] was go[ing to] have to serve a hundred percent.”
She also claimed that counsel never told her or the Petitioner about lifetime community
supervision, and she first heard about it during the Petitioner‟s guilty plea hearing.
Dawn Black, the Petitioner‟s mother, testified that the victim is her daughter and
the Petitioner‟s half-sister. She contested the allegations set out in the police report,
which stated that after the Petitioner assaulted the victim, Ms. Black woke up and told the
Petitioner to leave the house. She claimed that she never saw the Petitioner in the
victim‟s bedroom and never told him to leave the house. She also stated that, contrary to
the police report, the victim never fled to a neighbor‟s house that evening. Despite being
a possible witness, she claimed that counsel never spoke with her about the incident. She
stated that she first met counsel on the day of the Petitioner‟s guilty plea hearing when he
met with the family to discuss the plea agreement. Ms. Black stated that counsel told the
family “[t]hat if [the Petitioner] took a guilty plea he would only be looking at a partial
sentence, that if it went to jury, he would be looking at 40 years, that he had no choice but
to plea[d] guilty.” She claimed that counsel said the Petitioner‟s sentence under the plea
agreement “would not be long” and he would “do two for one,” which she believed
meant that the Petitioner would serve only half of the eight-year sentence. She testified
that counsel never said the Petitioner would have to serve 100% of his sentence or that he
would be subject to lifetime community supervision. She first heard those terms from the
trial court during the guilty plea hearing. When asked why she stated in an affidavit
created before the evidentiary hearing that counsel told her that the Petitioner would have
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to serve 30% of his sentence, she stated, “I‟m not sure. [Counsel] said the two for one, a
work-release program. I don‟t know what that means.”3
Following the hearing, the post-conviction court took the matter under advisement
and issued on order on June 3, 2013 denying relief. It is from this order that the
Petitioner now timely appeals.
ANALYSIS
On appeal, the Petitioner argues that he received ineffective assistance of counsel
in connection with his guilty plea. He maintains that counsel failed to investigate his
case, interview relevant witnesses, or fully advise him about the ramifications of pleading
guilty.4 The State responds that the post-conviction court properly denied relief because
the Petitioner failed to establish that counsel provided ineffective assistance. 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,
3
Frieda Serguson and Dawn Black each supplied an affidavit claiming that counsel never told the
Petitioner that he would serve 100% of his sentence or that he would be subject to community supervision
for life. Both affidavits averred that counsel told the Petitioner he would have to serve 30% of his
sentence. These affidavits were attached to the Petitioner‟s petition for post-conviction relief.
4
In his petition for post-conviction relief, the Petitioner also alleged that his guilty plea was
unknowing and involuntary; however, in his brief to this court, he conceded that he understood the terms
of the plea agreement at the time that of the hearing. He instead focused his argument entirely on
counsel‟s performance and his claim that counsel failed to fully inform him of the terms of the plea
agreement before the hearing. Accordingly, we will only address his ineffective assistance of counsel
claims.
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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).
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 when the clear and
convincing evidence proves 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).
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In the instant case, the Petitioner complains that counsel failed to adequately
investigate his case and advise him about the consequences of his guilty plea. In denying
relief, the post-conviction court accredited counsel‟s testimony that he provided the
Petitioner with copies of the relevant statutes, sentencing ranges, indictments, and police
reports. The court also noted that counsel provided all of these documents at the hearing
as part of his case file, and they were made an exhibit. The court acknowledged that the
Petitioner and his witnesses offered testimony in conflict with counsel‟s testimony but
found these witnesses to be incredible. The court noted that the substance of their
testimony was refuted by their own inconsistencies and by the transcript of the
Petitioner‟s guilty plea hearing. Based upon the record, the court concluded that the
Petitioner failed to establish ineffective assistance of counsel.
The record does not preponderate against the post-conviction court‟s findings.
Counsel testified that he met with the Petitioner 12 to 15 times prior to his guilty plea
hearing and discussed with him the charges, relevant statutes, and sentencing ranges.
Counsel also reviewed with the Petitioner the plea agreement and explained its
ramifications, including that he would have to serve 100% of the sentence and be subject
to lifetime community supervision. Although the Petitioner and his witnesses offered
contrary testimony, the trial court credited the testimony of counsel and found that he
“refuted each and every factual claim of ineffective assistance of counsel testified to by
the [P]etitioner.” This finding was bolstered by the documentation provided by counsel
from his case file and the transcript of the guilty plea hearing, at which the Petitioner
assured the trial court that he understood the terms of the plea. The Petitioner conceded
that whether counsel rendered ineffective assistance of counsel in this case “depends on
the credibility of all the witnesses,” and offered no further evidence to establish deficient
performance by counsel. Credibility determinations are properly resolved by the trial
court, and we will not reweigh or reevaluate this evidence on appeal. Vaughn, 202
S.W.3d at 115. Thus, we agree with the post-conviction court that the Petitioner failed to
establish ineffective assistance of counsel. The Petitioner is not entitled to relief.
CONCLUSION
Based on the foregoing authorities and analysis, the judgment of the post-
conviction court is affirmed.
_________________________________
CAMILLE R. MCMULLEN, JUDGE
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