Selwyn Forbes George v. State of Tennessee ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 12, 2014
SELWYN FORBES GEORGE v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2009-D-3272 Steve Dozier, Judge
No. M2013-1320-CCA-R3-PC - Filed May 9, 2014
Petitioner, Selwyn Forbes George, was indicted by the Davidson County Grand Jury for one
count of possession with intent to sell or deliver .5 grams or more of cocaine in a drug-free
school zone. Petitioner entered a negotiated plea agreement in which he pled guilty to
possession of more than .5 grams of cocaine for resale in exchange for a twenty-year
sentence to be served as a Range I, standard offender. Petitioner subsequently filed a petition
for post-conviction relief in which he alleged that trial counsel was ineffective. After a
hearing, the post-conviction court denied relief. Petitioner appeals. After a review, we
determine that Petitioner has failed to show clear and convincing evidence that he received
ineffective assistance of counsel. Further, we determine that Petitioner has failed to show
that his guilty plea was involuntarily or unknowingly entered. As a result, we affirm the
judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.
J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
J EFFREY S. B IVINS, JJ., joined.
William E. Griffith, Nashville, Tennessee, for the appellant, Selwyn Forbes George.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General, and Rachel Sobrero, Assistant
District Attorney General, for the appellant, State of Tennessee.
OPINION
Factual Background
Petitioner was indicted in October of 2009 by the Davidson County Grand Jury for
possession of more than .5 grams of cocaine with the intent to sell or deliver within a
drug-free school zone in violation of Tennessee Code Annotated section 39-17-417.
On May 23, 2011, Petitioner entered a guilty plea to one count of possession of more
than .5 grams of cocaine for resale. As a result of the negotiated plea agreement, Petitioner
would receive a sentence of twenty years to be served as a Range I, standard offender with
a release eligibility of thirty percent.
At the guilty plea hearing, counsel for the State explained the factual basis for the plea
as follows:
Had this case gone to trial, the State’s proof would have shown that on
August 6, 2009, detectives with the south crime suppression unit were
conducting an investigation based on a telephone call investigating a drug
complaint. They went to 100 Gallatin Pike, Apartment 404, and knocked on
the door.
At that time, a female opened the door who was not a resident of the
home. They asked for a resident of the home and another individual came to
the door and allowed them in. That person was the girlfriend of Dennis Hayes.
Dennis Hayes was a resident of the apartment as well.
When officers entered, they asked for consent to search. They
encountered a Mr. George sitting in an armchair in the corner of the room. Mr.
George beg[a]n fidgeting when they walked in the door. They walked over to
him and did a weapons check for safety purposes then searched the area where
he had been sitting and found tucked between the chair cushion and the side
of the chair a baggie containing 13 smaller baggies of what the TBI verified
to be crack cocaine. They also found $936 in US currency. Most of this was
in $20 bills consistent with narcotic sale.
Mr. George also had two cell phone[s] on him at the time in his pockets.
He denied that they were his although one of them had his picture on it. While
detectives were investigating, Mr. George’s cell phone continued to ring and
one of them were answered by Detective Browning. The person on the other
end asked for a 20 and Detective Browning told that person to come and get
it.
-2-
A short time later, that person knocked on the door at apartment 404 .
. . in attempt to purchase $20 worth of crack cocaine. That person had a $20
bill in [h]is pocket and when Detectives asked if - - he cooperated with
detectives, they had that person’s phone - - his name was John McCowsky, I
believe. They took Mr. McCowsky’s phone and dialed the last number that
had been dialed from his phone and it rang to Mr. George’s phone.
Meanwhile as other detectives were processing the apartment they
found Mr. Hayes asleep in his bedroom. When they explained to him why they
were there, after he was Mirandized, he told Detectives that he was aware that
Mr. George periodically came to his house to sell drugs and that he received
some drugs in exchange for allowing Mr. George to sell drugs out of that
apartment.
After the recitation of the facts, Petitioner stated under oath that he understood the
charges against him, and that his attorney discussed the charges and punishment. Petitioner
also indicated that he understood the possible sentence he could face if he went to trial and
understood the sentence he was receiving. Petitioner testified that he was satisfied with
counsel’s representation and that entering the guilty plea was his own decision. Trial counsel
informed Petitioner of the charges, the possible punishment, and the punishment he would
receive as a result of the guilty plea. The trial court also outlined the constitutional rights
Petitioner was relinquishing by pleading guilty. The guilty plea was accepted by the trial
court.
Subsequently, Petitioner filed a pro se petition for post-conviction relief in which he
alleged that he received ineffective assistance of counsel and that his guilty plea was
involuntarily and unknowingly entered. Counsel was appointed and an amended petition was
filed.
The post-conviction court held a hearing on the amended petition for post-conviction
relief. At the hearing, Petitioner testified that trial counsel failed to file a motion to suppress.
Petitioner disagreed with trial counsel’s assessment of the facts. Trial counsel told Petitioner
that he did not have an expectation of privacy in the apartment so a challenge to the search
would be fruitless. Petitioner believed that he had standing to contest the search because he
had stayed at the residence overnight and off and on. Petitioner also claimed that trial
counsel failed to adequately interview witnesses to the arrest. As to the guilty plea, Petitioner
thought that he should have received between eight and twelve years because he had no prior
felonies. At the post-conviction hearing, Petitioner contradicted his sworn testimony at the
plea hearing, claiming that he did not entirely understand the consequences of the plea.
-3-
Trial counsel testified that he has practiced law since the fall of 2004 and handles
about eighty percent criminal cases in his practice. Trial counsel insisted that he had
extensive discussions with Petitioner about the potential punishment. Trial counsel explained
the sentencing range and informed Petitioner that he was not guaranteed to get parole. Trial
counsel also told Petitioner that he could receive a longer sentence if he were to go to trial.
Trial counsel explained that Petitioner received another felony drug charge while on
bond for this case. Petitioner retained trial counsel to represent him on the additional
charges. At first, the State offered a “package deal” wherein Petitioner would plead to eight
years on each count in exchange for two guilty pleas. Petitioner wanted to wait to see
discovery in the second case. The State withdrew the offer before Petitioner decided to
accept it.
Trial counsel testified that the State made the twenty-year offer for the first time on
the morning of trial. After communicating the offer to Petitioner, and explaining that the
State was willing to drop the school-zone enhancement, Petitioner decided to accept the
offer. The State indicated that they would also make an acceptable offer on the second case.
Trial counsel and Petitioner had a lengthy discussion prior to the acceptance of the plea.
Trial counsel also recalled that he discussed filing a motion to suppress with
Petitioner. In trial counsel’s opinion, Petitioner did not have standing to contest the search
of the residence. Trial counsel was of the opinion that the motion was unwarranted.
Petitioner did not offer any proof to the contrary at the post-conviction hearing.
Trial counsel was aware that Petitioner wanted him to interview several witnesses
prior to trial. However, Petitioner failed to provide contact information for the witnesses.
Additionally, Petitioner did not present these witnesses at the post-conviction hearing.
At the conclusion of the proof, the post-conviction court denied relief. In a separate
order, the post-conviction court recounted the testimony at the post-conviction hearing and
determined that Petitioner failed to show that trial counsel was not prepared for the case.
Specifically, the post-conviction court accredited the testimony of trial counsel that he
reviewed discovery with Petitioner and prepared for the pending trial. The court noted that
there was “no other proof presented that showed counsel did not adequately prepare or [that
Petitioner suffered] prejudice from the lack of preparation.”
Additionally, the post-conviction court determined that trial counsel was not
ineffective for failing to file a motion to suppress. Specifically, the court again accredited
the testimony of trial counsel that counsel made the determination after research that
Petitioner did not have standing to challenge the search. The post-conviction court noted that
-4-
Petitioner failed to show clear and convincing evidence to the contrary and failed to show
prejudice as a result of the allegation.
With regard to Petitioner’s allegation that his guilty plea was unknowing and
involuntary, the post-conviction court again accredited the testimony of trial counsel. The
court found that trial counsel had “extensive discussions about the potential punishment,”
“explained the sentencing range,” and “did not advise the petitioner that parole was a
guarantee.” Additionally, the post-conviction court determined that Petitioner was
“informed and had sufficient knowledge of the nature and consequences of the plea and that
he voluntarily chose to enter the guilty plea as evidenced by the transcript of the plea.”
As a result of those findings, the post-conviction court dismissed the petition.
Petitioner filed a timely notice of appeal.
Analysis
On appeal, Petitioner argues that the post-conviction court improperly dismissed the
petition. Specifically, he insists that trial counsel was ineffective for failing to file a motion
to suppress and that his guilty plea was involuntarily and unknowingly entered because he
was not aware of the consequences of the plea. The State disagrees, arguing that the
evidence does not preponderate against the findings of the post-conviction court.
Post-conviction Standard of Review
The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issues raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction court’s findings unless the
evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This
Court may not re-weigh or re-evaluate the evidence, nor substitute its inferences for those
drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.
2001). However, the post-conviction court’s conclusions of law are reviewed under a purely
de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).
Ineffective Assistance of Counsel
When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing by clear and convincing evidence that
-5-
“(a) the services rendered by trial counsel were deficient and (b) that the deficient
performance was prejudicial.” See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App.
1996); see also T.C.A. § 40-30-110(f). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). “Because a petitioner must establish both prongs of the test to prevail on a
claim of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley, 960
S.W.2d at 580.
As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that the issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . .; thus, [appellate] review of [these issues] is
de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.
Furthermore, on claims of ineffective assistance of counsel, Petitioner is not entitled
to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994). This Court may not second-guess a reasonably-based trial strategy, and we cannot
grant relief based on a sound, but unsuccessful, tactical decision made during the course of
the proceedings. See id. However, such deference to the tactical decisions of counsel applies
only if counsel makes those decisions after adequate preparation for the case. See Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Once a guilty plea has been entered, effectiveness of counsel is relevant only to the
extent that it affects the voluntariness of the plea. In this respect, such claims of ineffective
assistance necessarily implicate the principle that guilty pleas be voluntarily and intelligently
made. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citing North Carolina v. Alford, 400
U.S. 25, 31 (1970)). As stated above, in order to successfully challenge the effectiveness of
counsel, Petitioner must demonstrate that counsel’s representation fell below the range of
competence demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936. Under
Strickland v. Washington, Petitioner must establish: (1) deficient representation; and (2)
prejudice resulting from the deficiency. 466 U.S. 668, 694 (1984). However, in the context
of a guilty plea, to satisfy the second prong of Strickland, 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, 474 U.S. at 59; see also Walton v. State, 966
S.W.2d 54, 55 (Tenn. Crim. App. 1997).
-6-
On appeal, Petitioner argues that trial counsel was deficient because he did not file a
motion to suppress and failed to investigate witnesses in preparation for trial. Specifically,
Petitioner insists that he has standing to challenge the search. Further, Petitioner claims that
trial counsel failed to explain that he was pleading outside the range of punishment and was
not guaranteed parole. Petitioner claims that had he known these things he would not have
pled guilty and would have insisted on going to trial.
With regard to the motion to suppress issue, the post-conviction court accredited the
testimony of trial counsel. Trial counsel stated that after reviewing the issue, he did not find
that Petitioner had standing to challenge the search warrant as he had no right to privacy in
the apartment where he was not a permanent resident. Again, this Court may not
second-guess a reasonably-based trial strategy, and we cannot grant relief based on a sound,
but unsuccessful, tactical decision made during the course of the proceedings. Adkins, 911
S.W.2d at 347.
With regard to interviewing and investigating other witnesses, the post-conviction
court again accredited the testimony of trial counsel who testified that Petitioner failed to
give trial counsel the specific names and contact information for such witnesses. The
post-conviction court noted that trial counsel discussed trial strategy with Petitioner prior to
the scheduled trial date. Additionally, the post-conviction court concluded that Petitioner
was unable to prove, by clear and convincing evidence, that trial counsel was ineffective.
The evidence does not preponderate against the judgment of the post-conviction court.
Petitioner has failed to show that but for trial counsel’s alleged deficiencies, he would
have refused to plead guilty and insisted on going to trial. Petitioner testified at the
post-conviction hearing that he was shown the discovery materials. However, he claimed at
the post-conviction hearing, contrary to his testimony at the plea hearing, that he was
unaware of the consequences of his guilty plea and that trial counsel did not fully explain that
he was pleading outside the range of punishment.
Petitioner has not proven that trial counsel’s representation was deficient or that he
would not have pled guilty without the alleged errors and gone to trial. Petitioner stated
himself at the guilty plea hearing that he was satisfied with the representation from trial
counsel. It is up to the trial court to determine credibility of witnesses and the post-conviction
court's findings have the weight of a jury verdict. Momon v. State, 18 S.W.3d 152, 156 (Tenn.
1999). Therefore, Petitioner has not met either prong under Strickland.
-7-
Guilty Plea
Petitioner also argues that the post-conviction court erred in dismissing his petition
because he entered his plea unknowingly and involuntarily. The State disagrees.
When analyzing a guilty plea, we look to the federal standard announced in Boykin
v. Alabama, 395 U.S. 238 (1969), and the State standard set out in State v. Mackey, 553
S.W.2d 337 (Tenn. 1977), superceded on other grounds by Tenn. R. Crim. P. 37(b) and
Tenn. R. App. P. 3(b). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin, the
United States Supreme Court held that there must be an affirmative showing in the trial court
that a guilty plea was voluntarily and knowingly given before it can be accepted. 395 U.S.
at 242; see Pettus, 986 S.W.2d at 542. Similarly, our Tennessee Supreme Court in Mackey
required an affirmative showing of a voluntary and knowing guilty plea, namely, that the
defendant has been made aware of the significant consequences of such a plea. 553 S.W.2d
at 340; see Pettus, 986 S.W.2d at 542.
A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial
court must determine if the guilty plea is “knowing” by questioning the defendant to make
sure he fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;
Blankenship, 858 S .W.2d at 904.
Petitioner argues that his guilty plea was entered unknowingly because he did not fully
understand the consequences of the guilty plea. The post-conviction court determined that
Petitioner knowingly and voluntarily entered the guilty plea after learning about the
consequences of the plea from trial counsel and reviewing the consequences with the trial
court. This Court, therefore, finds that the Petitioner failed to establish, by clear and
convincing evidence, that the plea was entered unknowingly or involuntarily.
As stated above, post-conviction court’s factual findings are given a presumption of
correctness, rendering them conclusive on appeal unless the record preponderates against the
court’s findings. We have found nothing in the record to preponderate against the
post-conviction court’s findings. Petitioner has failed to prove that trial counsel did not
discuss the plea with Petitioner prior to its entry.
The transcript of the guilty plea hearing reflects that the trial court discussed the
ramifications of the guilty plea with Petitioner. The trial court thoroughly questioned
Petitioner to ascertain whether he understood the effects of the plea. The plea hearing also
indicates that Petitioner knew what he was doing, understood the plea, and agreed that it was
what he wanted to do to resolve the case. Petitioner has failed to show by clear and
-8-
convincing evidence that he received ineffective assistance of counsel or that his guilty plea
was involuntary. Moreover, Petitioner has failed to prove he did not understand the
consequences of his plea.
CONCLUSION
For the foregoing reasons, we affirm the denial of Petitioner’s petition for
post-conviction relief.
___________________________________
JERRY L. SMITH, JUDGE
-9-