State v. Jerome D. Hill ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE June 2, 1999
Cecil Crowson, Jr.
APRIL 1999 SESSION Appellate C ourt
Clerk
JEROME D. HILL, )
) NO. 03C01-9807-CR-00254
Appellant, )
) KNOX COUNTY
VS. )
) HON. RAY L. JENKINS,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
ALBERT J. NEWMAN, JR. JOHN KNOX WALKUP
602 South Gay Street Attorney General and Reporter
Burwell Building, Suite 500
Knoxville, TN 37902-1623 R. STEPHEN JOBE
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
RANDALL E. NICHOLS
District Attorney General
FRED BRIGHT, JR.
Assistant District Attorney General
400 Main
P.O. Box 1468
Knoxville, TN 37901-1468
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
Petitioner appeals the denial of his petition for post-conviction relief.
Petitioner pled guilty to three counts of aggravated robbery, Class B felonies,
without an agreement as to sentencing. The trial court ordered petitioner to serve
an effective sentence of thirty-six years as a Range II offender. Petitioner now
alleges ineffective assistance of counsel and argues that the plea was not
voluntarily, knowingly, and understandingly entered. Upon a complete review of the
record, we conclude that the evidence does not preponderate against the post-
conviction court’s findings that counsel was effective and the plea voluntary. Thus,
we AFFIRM the dismissal of the petition.
I. PROCEDURAL HISTORY
Petitioner was charged with three counts of aggravated robbery, aggravated
burglary, and theft of property. Attorney Laurie Andrijeski was retained on
petitioner’s behalf at the General Sessions level and appointed to continue her
representation by the Criminal Court.
On January 10, 1995, petitioner pled guilty to three counts of aggravated
robbery, Class B felonies, without a sentencing agreement and received eighteen
years as a Range II offender on each count. The trial court ordered the first two
counts to run consecutively, and the third count concurrently, for an effective thirty-
six year sentence. Petitioner perfected a direct appeal, and this Court affirmed the
sentences. See State v. Jerome Dajuan Hill, C.C.A. No. 03C01-9508-CR-00230,
Knox County (Tenn. Crim. App. filed June 7, 1996, at Knoxville), perm. to appeal
denied (Tenn. 1997).
On November 19, 1997, petitioner filed a petition for post-conviction relief pro
se, alleging the pleas were involuntary due to ineffective assistance of counsel.
The post-conviction court appointed counsel and subsequently conducted an
evidentiary hearing. It found the allegations to be without merit and entered an
order denying post-conviction relief. This appeal followed.
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II. FACTS
On May 17, 1994, petitioner and two other men forcibly entered the Watson
residence. The perpetrators confronted three people in the house, bound their
hands and feet, and threatened them with physical harm while taking their cash and
other items of property. All three victims identified petitioner as the leader and
gunman of the group.
A. Guilty Plea
At the guilty plea hearing, the trial court advised petitioner of Range I and
Range II sentencing for Class B felonies. It summarized its sentencing
considerations and procedures. The court clarified the fact that the sentence
petitioner ultimately received would depend upon (1) whether he was determined
to be a Range I or Range II offender, and (2) whether there was concurrent or
consecutive sentencing. The trial court explained all the petitioner’s rights as a
criminal defendant, the significance of three convictions on his record, and the
possibility of enhanced punishment due to petitioner’s existing criminal record.1
The petitioner indicated he understood the court’s explanations of sentencing
range, principles, and procedure. Petitioner also indicated satisfaction with attorney
Andrijeski’s representation.
B. Sentencing
At sentencing, the parties stipulated to petitioner’s status as a Range II
offender. The state requested the application of numerous enhancement factors
and introduced the testimony of two victims. The petitioner did not testify and put
on no proof other than his statement in the pre-sentence report.
C. Post-Conviction Hearing
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The trial court also informed petitioner that he definitely would not be eligible for
any type of probation.
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1. Petitioner’s Testimony
Petitioner testified at the post-conviction evidentiary hearing that trial attorney
Andrijeski met with him approximately twelve times prior to the guilty plea. The first
plea offer conveyed to him by Andrijeski was eight years; as the trial date drew near,
the offer was twenty years. Petitioner contends he rejected the twenty-year offer
on Andrijeski’s advice. He claims she counseled him that a “blind plea” (without
agreement) would be appropriate and that he would not receive more than twenty
years. Were it not for this advice, petitioner claims he would not have pled guilty.
Petitioner avers that no one told him the state would seek Range II sentencing. He
steadfastly maintains counsel told him he would not receive more than twenty years,
and that counsel never advised him of the possibility of a sixty-year sentence.2
2. Attorney Andrijeski’s Testimony
Attorney Andrijeski agreed with petitioner’s estimate regarding the number
of meetings they had, but little else. She testified that the state’s first offer was
twenty-five years, not eight years; the lowest offer received was twenty years. The
petitioner refused both offers because he felt it was too much time.
Andrijeski reviewed the possibility of a sixty-year sentence with petitioner,
especially considering the state’s proof. She recommended that petitioner take the
twenty-year offer and advised him it was fair considering the factual circumstances
of the offenses.
After petitioner declined the twenty-year offer, counsel mentioned the option
of pleading without an agreement. Petitioner decided to do that because he
believed he would do better than twenty years.
With regard to sentencing, Andrijeski prepared a sentencing memorandum.
Petitioner gave her letters of support, allegedly from his football coach and dean of
students at Knoxville University. However, those letters were not presented to the
court because she discovered they were fraudulent.
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Sixty years was the maximum possible sentence had petitioner been sentenced to
the maximum twenty years on each count, with all counts served consecutively.
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III. STANDARDS OF REVIEW
A. Post-Conviction
The judge's findings of fact on post-conviction hearings are conclusive on
appeal unless the evidence preponderates otherwise. Butler v. State, 789 S.W.2d
898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim. App.
1995). The post-conviction court’s findings of fact are afforded the weight of a jury
verdict, and this Court is bound by those findings unless the evidence in the record
preponderates against them. Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997);
Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997); Dixon v. State, 934
S.W.2d 69, 72 (Tenn. Crim. App. 1996). We may not reweigh or reevaluate the
evidence, nor substitute our inferences for those drawn by the trial judge. Henley,
960 S.W.2d at 578-79; Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim. App.
1996); Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The burden
of establishing that the evidence preponderates against the post-conviction court’s
findings is on petitioner. Henley, 960 S.W.2d at 579; Black, 794 S.W.2d at 755.
B. Effective Assistance of Counsel
This Court reviews a claim of ineffective assistance of counsel under the
standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner
has the burden to prove that (1) the attorney’s performance was deficient, and (2)
the deficient performance resulted in prejudice to the defendant so as to deprive
him of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State, 938
S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994);
Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).
In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the
Supreme Court applied the two-part Strickland standard to ineffective assistance of
counsel claims arising out of a guilty plea. The Court in Hill modified the prejudice
requirement by requiring a defendant to show that there is a reasonable probability
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that, but for counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial. 474 U.S. at 59, 106 S.Ct. at 370; Hicks v. State, 983
S.W.2d 240, 246 (Tenn. Crim. App. 1998).
IV. CONCLUSION
The outcome of this post-conviction matter is dependent upon whether the
post-conviction court believed the testimony of petitioner versus that of his trial
counsel. The post-conviction court’s order dismissing the petition states most
succinctly the reasons this appeal must fail:
The Court accredits the attorney’s testimony. Incarceration does
strange things to the mind as here. A combination of forgetfulness,
confabulation and pure mendacity has scrambled petitioner’s memory
to the point of unreliability. Petitioner has failed to carry his burden.
We interpret this order to mean that the trial court found petitioner to be lacking in
credibility. The evidence does not preponderate against the post-conviction court’s
finding of mendacious testimony. Thus, we AFFIRM the decision of the post-
conviction court dismissing the petition for post-conviction relief.
___________________________
JOE G. RILEY, JUDGE
CONCUR:
___________________________
JERRY L. SMITH, JUDGE
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___________________________
NORMA McGEE OGLE, JUDGE
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