Frank Warren Currah v. State of Tennessee ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 24, 2012
FRANK WARREN CURRAH v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Moore County
No. 9851 Robert Crigler, Judge
No. M2011-01871-CCA-R3-PC - Filed March 28, 2012
The petitioner, Frank Warren Currah, appeals the post-conviction court’s denial of his
petition for post-conviction relief from his convictions of sexual exploitation of a minor and
aggravated stalking and resulting effective sentence of eight years in confinement. On
appeal, the petitioner contends that he received the ineffective assistance of counsel. Based
upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER, and JEFFREY S. B IVINS, JJ., joined.
Andrew Jackson Dearing, III, Shelbyville, Tennessee, for appellant, Frank Warren Currah.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Hollynn
Eubanks, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
Our review of the trial transcript reveals the following facts: In 2008, the then
seventeen-year-old victim was a high school junior and a cheerleader. The petitioner, who
1
Parts of the record reflect that the post-conviction trial court number is 985, and other parts
reflect that the number is 1073. However, 1073 was the trial court number for the petitioner’s
original trial and sentence agreement hearing.
was twenty-eight years old, managed computers for the Moore County School System and
had an office in the victim’s high school. During the school year, the victim began receiving
anonymous gifts at school. First, a florist delivered two dozen roses to the victim. Then the
victim found a Christmas card in her locker. The card contained two one-hundred-dollar
bills. On Valentine’s Day, the victim found a Victoria’s Secret gift card in her locker with
a note that said, “‘You’re the most beautiful and attractive girl. I hope nothing I ever do
makes you uncomfortable. Happy Valentine’s Day.’” Officer Justin Grogan of the Moore
County Sheriff’s Department (MCSD), who was the resource officer at the high school,
reviewed video surveillance in the school and discovered that the petitioner put the gift card
in the locker. Detective Mike Rainey of the MCSD interviewed the petitioner, and the
petitioner did not deny that he gave the gifts to the victim. The petitioner consented to a
search of his residence and personal computer. Tennessee Bureau of Investigation (TBI)
Agent Douglas Williams found more than one hundred photographs of minors participating
in sexual acts on the computer’s hard drive. An expert in computer forensics testified for the
petitioner at trial that after the police seized the petitioner’s computer, numerous files were
modified. He also testified that it was impossible to know who downloaded the images and
that the petitioner may not have known the images were on the hard drive. The petitioner
testified that he did not know how or when the images were downloaded and that he never
had any personal contact with the victim.
The jury convicted the petitioner as charged of sexual exploitation of a minor, a Class
B felony, and aggravated stalking, a Class E felony. Subsequently, the petitioner retained
new counsel and entered into a sentencing agreement with the State, waiving his right to
appeal in exchange for an effective eight-year sentence. Less than one year later, the
petitioner filed a petition for post-conviction relief, claiming that he received the ineffective
assistance of counsel. The post-conviction court appointed counsel, and counsel filed an
amended petition. The amended petition alleged that the petitioner received the ineffective
assistance of counsel at trial because counsel failed to communicate with him; failed to
investigate his case and interview witnesses; was not prepared for trial; did not explain trial
procedures to him; did not show him statements or evidence relating to his case; did not file
pretrial motions; and did not request that the State stipulate to the computer images. The
petitioner also argued in the amended petition that he received the ineffective assistance of
counsel at sentencing because his post-trial attorney failed to communicate with him
adequately regarding his waiving his motion for new trial and right to appeal, which resulted
in his not entering into the sentencing agreement knowingly, voluntarily, and intelligently.
At the evidentiary hearing, the petitioner testified that he retained trial counsel to
represent him. Trial counsel met with the petitioner four times for a total of six hours before
trial. After the petitioner’s arrest, he attempted suicide and spent five days in a psychiatric
hospital. However, trial counsel never filed a motion for an expert to evaluate the
-2-
petitioner’s competency. Trial counsel showed the petitioner the State’s proposed list of
witnesses. They discussed some of the witnesses and trial strategy, but trial counsel did not
review discovery materials with him. They never discussed Agent Williams’s testimony, and
the petitioner did not think counsel interviewed Agent Williams. The petitioner
recommended a computer expert for the defense, and trial counsel met with the expert. The
petitioner acknowledged that the expert “educated” trial counsel about downloading files.
Trial counsel and the petitioner reviewed some of the computer images from the petitioner’s
hard drive for about thirty to forty minutes, and trial counsel filed a motion to suppress the
images. Detective Rainey testified at the suppression hearing, and the trial court denied the
motion to suppress. The State offered to agree to the petitioner pleading guilty in exchange
for a five and one-half-year sentence, but the petitioner refused to accept the offer. On the
morning of trial, trial counsel insisted that the petitioner accept the offer, but the petitioner
still refused.
The petitioner testified that he requested that trial counsel strike some of the potential
jurors from the panel but that trial counsel did not challenge anyone. Detective Rainey gave
testimony at trial that was inconsistent with his testimony at the suppression hearing, but trial
counsel did not cross-examine the detective about the inconsistencies. Trial counsel failed
to familiarize himself with computers adequately before trial and repeatedly misused the
word “downloading” during the trial. The petitioner said that trial counsel told him that
when the jury saw the downloaded images, “they’re going to hang [you].” However, to the
petitioner’s knowledge, trial counsel never approached the State about stipulating to the
images. The petitioner said that he prepared thirty to forty questions for trial counsel to ask
during the trial but that counsel “left most of them out.” The petitioner testified at trial, but
counsel did not question him adequately.
The petitioner testified that after the jury convicted him, trial counsel developed some
health problems. The petitioner said he and his family decided to hire a new attorney because
trial counsel was “not too responsive to my letters to come see me.” The petitioner’s post-
trial attorney visited him in jail three times. Each of their first two meetings lasted about one
hour, and their third meeting, which occurred the day before the scheduled sentencing
hearing, lasted at least three hours. During the meetings, they discussed the petitioner’s case.
Trial counsel had filed a motion for new trial, and post-trial counsel had filed an amended
motion for new trial.
The petitioner testified that the State offered him an eight-year sentence if he would
agree to waive his motion for new trial and direct appeal. The petitioner said that the day
before he was to be sentenced, post-trial counsel told him that his obtaining a new trial was
“a long shot” and that his appeal probably would be frivolous. Post-trial counsel did not
explain that the petitioner was entitled to a direct appeal and told him about a case similar
-3-
to the petitioner’s case in which the defendant received the maximum sentence and no
alternative sentencing. The petitioner said that post-trial counsel also told him that “appellate
briefs start at $10,000” and that the petitioner could reduce the proposed eight-year sentence
by fifteen percent for good behavior. The petitioner later learned that he was ineligible for
the conduct credits.2 The petitioner said that he was “tapped out financially,” that the
agreement “seemed like it was the best thing to do at the time,” and that he accepted the
State’s sentencing offer because “I was operating under the belief that my motion for new
trial was not going to happen and the appeal would be frivolous and that I was going to get
the max.”
On cross-examination, the petitioner testified that he had wanted trial counsel to strike
an elementary school teacher from the jury panel because he used to work with the teacher
and had “issues” with her. The petitioner named several other jurors who knew him from
the community. He said the jurors may have had issues with him and should not have served
on the panel. The petitioner said that after his suicide attempt, he was able to assist trial
counsel with his case; however, he was “feeling out of [his] own,” was under a lot of stress,
and was in need of cognitive therapy.
The petitioner’s trial counsel testified for the State that he had been practicing law for
over thirty years and had participated in 1,000 to 1,500 cases prior to the petitioner’s case.
Trial counsel spent hours talking with the petitioner and researching law. He filed a motion
for discovery, a motion to dismiss, and a motion for continuance. He was concerned about
the seizure of the petitioner’s computer and filed a motion to suppress the downloaded
images. Trial counsel approached the State about a stipulation to the images, but the State
refused. Trial counsel talked with the petitioner about computers and shared discovery with
him. Trial counsel said that he gave the petitioner a copy of the TBI’s computer forensic
report and that the petitioner “went through it pretty much with a fine-tooth comb.” Trial
counsel said he thought the petitioner attempted suicide because the petitioner’s life “came
crashing down around him.” Trial counsel said he was “concerned about [the petitioner’s]
mental state at one point” but that the petitioner helped him prepare for trial and “seemed to
be okay.”
Trial counsel testified that he and the petitioner discussed hiring a defense expert.
Counsel interviewed the expert and filed a motion to allow the expert to inspect the
petitioner’s computer hard drive. Counsel spoke with some of the officers from the MCSD.
2
On the petitioner’s original judgment of conviction form, the box for “Child Predator 100%” was
checked, which prevented the petitioner from receiving any sentence reduction credits. At the conclusion
of the petitioner’s post-conviction evidentiary hearing, the parties and the trial court agreed that the petitioner
was entitled to the credits and that the judgment form should be amended to correct the error.
-4-
Although counsel did not speak with Agent Williams, he had the TBI agent’s report and
knew what the agent was going to say at trial. The State offered to allow the petitioner to
plead guilty to exploitation of a minor and aggravated stalking in exchange for a five and
one-half-year sentence. Although the petitioner would have been eligible for release after
serving thirty percent of the sentence, he was not interested in the offer. Trial counsel said
that he did not remember “frank objections” about any potential jurors but that “there might
have been one that he discussed with . . . me.”
On cross-examination, trial counsel testified that he had handled a few sexual
exploitation of a minor cases previously and that he spent ten to fifteen hours with the
petitioner. Trial counsel recalled that at the motion to suppress hearing, Detective Rainey
testified that he turned on the petitioner’s computer. However, Detective Rainey testified at
trial that another officer turned on the computer. Despite the inconsistency, trial counsel did
not consider Detective Rainey to be lying. Counsel thought the petitioner was capable of
understanding the petitioner’s actions and was competent. Counsel said the petitioner “stood
firm” in denying that he downloaded the images.
The petitioner’s post-trial counsel at sentencing testified for the State that he had been
licensed to practice law since 2006 and practiced criminal law almost exclusively. The
petitioner’s father retained post-trial counsel. Post-trial counsel read the trial transcript three
times and spent at least two hours with the petitioner during their first two visits. He said
that they were able to communicate and that the petitioner was “borderline brilliant.” Post-
trial counsel said he explained the petitioner’s range of punishment and consecutive
sentencing and tried to find “some way” for the petitioner to receive alternative sentencing.
However, counsel never found a case in which a defendant, who had downloaded more than
one hundred sexually explicit images of children, received alternative sentencing. He said
he told the petitioner that accepting the State’s sentencing offer would “effectively end this
case.” He said he also would have explained the post-conviction process and “what it takes
in order to have a successful postconviction hearing.” Counsel said that on the day of the
sentencing hearing, he and the petitioner “spent a considerable amount of time” going over
the acceptance forms, which outlined the State’s offer.
On cross-examination, post-trial counsel testified that he told the petitioner that the
petitioner had a right to a direct appeal. He said that he thought an appeal would have been
frivolous but that he did not share his opinion with the petitioner. Regarding the State’s
sentencing offer, post-trial counsel told the petitioner that he would receive an eight-year
sentence and that “there was always a chance that he could receive up to 15 percent.”
At the conclusion of the hearing, the post-conviction court summarized the evidence
regarding trial counsel’s performance, noting that trial counsel met with the petitioner and
-5-
filed a motion for discovery and a motion to suppress. The court also noted that according
to the petitioner, trial counsel told the petitioner about possible punishments, showed him a
witness list, reviewed some of the computer images with him, presented a plea offer to him,
and advised him to accept the offer. The post-conviction court stated that although the
petitioner thought counsel failed to cross-examine Detective Rainey properly, counsel did not
consider the inconsistencies in the detective’s testimony to have affected his credibility. The
post-conviction court noted that despite the petitioner’s claim about certain jurors improperly
sitting on the panel, the jurors did not testify at the evidentiary hearing. The post-conviction
court specifically accredited trial counsel’s testimony that he approached the State about
stipulating to the computer images, that he prepared for the petitioner’s case, and that he
developed a defense strategy with the petitioner.
The post-conviction court also summarized the testimony regarding post-trial
counsel’s performance. The post-conviction court found that post-trial counsel thoroughly
advised the petitioner about his right to a sentencing hearing and advised him about the
ramifications of his accepting the State’s sentencing offer. The post-conviction court
concluded that neither attorney rendered the ineffective assistance of counsel.
II. Analysis
The petitioner’s entire argument on appeal consists of the following three sentences:
Trial counsel failed to adequately prepare, interview and
call witnesses told to him by his client. Further trial counsel
failed to adequately prepare his case for Trial and adequately
communicate and interview witnesses. . . . Further counsel at
sentencing failed to properly advise Petitioner of the plea
agreement which resulted in Petitioner waiving his Motion for
New Trial and appeal.
The State argues that the petitioner did not receive the ineffective assistance of counsel and
that he accepted the State’s sentencing offer knowingly, intelligently, and voluntarily. We
agree with the State.
To be successful in a claim for post-conviction relief, the petitioner must prove all
factual allegations contained in his post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
-6-
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to
substantial deference on appeal unless the evidence preponderates against those findings.
See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields, 40
S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law
purely de novo. Id.
When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is 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.” Strickland, 466 U.S. at 694. Notably,
[b]ecause a petitioner must establish both prongs of the test, 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, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
Regarding the petitioner’s receiving the ineffective assistance of trial counsel, the
post-conviction court found that trial counsel met with the petitioner, filed a motion for
discovery and a motion to suppress, showed the petitioner a witness list, advised him about
possible punishments, reviewed the computer images with him, prepared for his case, and
developed a defense strategy. The petitioner has failed to explain on appeal what more trial
counsel should have done. Moreover, although the petitioner claimed at the evidentiary
hearing that trial counsel failed to interview witnesses or strike certain jurors from the jury
-7-
panel, the petitioner failed to present the testimony of the omitted witnesses or improper
jurors at the hearing. Black v. State, 794 S.W.2d 752, 753 (Tenn. Crim. App. 1990).
Therefore, he has failed to show that trial counsel’s performance was deficient or that he was
prejudiced by any deficiency.
As to the petitioner’s claim that he received the ineffective assistance of post-trial
counsel, the petitioner is effectively requesting a delayed appeal. See Thomas W. Yelton v.
State, No. M1999-00597-CCA-R3-PC, 2000 Tenn. Crim. App. LEXIS 885, at *22
(Nashville, Nov. 9, 2000). However, the post-conviction court concluded that post-trial
counsel advised the petitioner about his right to a sentencing hearing and the ramifications
of accepting the State’s sentencing offer, including his waiving his right to appeal his
convictions. We note that the petitioner has included a transcript of the hearing in which he
agreed to accept the State’s sentencing offer. Our review of the transcript shows that the
State announced the agreement to the trial court, stating that the petitioner would receive an
effective eight-year sentence to be served at one hundred percent. In addition, the State
announced that the petitioner had executed a handwritten waiver of his right to a direct
appeal as part of the agreement, and counsel for the petitioner stated that the petitioner’s
amended motion for new trial would be “stricken.” The trial court asked the petitioner if he
understood the agreement announced by the State and his attorney, and the petitioner said
yes. The trial court also asked the petitioner if he understood that he was waiving his right
to a sentencing hearing and his right to appeal his convictions, and the petitioner again
answered yes. Finally, the trial court asked the petitioner if he had signed his handwritten
waiver and if he had entered into the sentencing agreement freely and voluntarily. The
petitioner answered both questions in the affirmative. We agree with the post-conviction
court that the petitioner did not receive the ineffective assistance of post-trial counsel and
that he entered the sentencing agreement knowingly, intelligently, and voluntarily. The
petitioner is not entitled to relief.
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.
___________________________________
NORMA MCGEE OGLE, JUDGE
-8-