Brewer v. State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
AUGUST 1998 SESSION
September 22, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
JAMIE EDWARD BREWER, )
)
Appellant, ) No. 03C01-9709-CC-00397
)
) Blount County
v. )
) Honorable D. Kelly Thomas, Jr., Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
Thomas G. McCroskey John Knox Walkup
627 Smithview Drive Attorney General of Tennessee
Maryville, TN 37801 and
Todd R. Kelley
Assistant Attorney General of Tennessee
425 Fifth Avenue North
Nashville, TN 37243-0493
Michael L. Flynn
District Attorney General
and
Philip Morton
Assistant District Attorney General
363 Court Street
Blount County Courthouse
Maryville, TN 37804
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, Jamie Edward Brewer, appeals as of right from the Blount
County Circuit Court’s order denying him post-conviction relief from his three 1996
robbery convictions resulting in a total sentence of fifteen years in the Department of
Correction. He contends that his guilty pleas were not knowingly, understandingly, and
voluntarily entered because his appointed counsel was ineffective by providing him
misadvice regarding release eligibility. We affirm the trial court.
The petitioner was charged in July 1995 with a robbery occurring on July
10, 1995. In November 1995, he was charged with an aggravated robbery occurring on
November 11, 1995, and an aggravated robbery occurring on November 26, 1995. The
petitioner had been on probation for a previous felony burglary conviction and a
misdemeanor theft conviction. The probation had been revoked, and the case was on
appeal, with the petitioner released on bond, when the two November robberies
occurred. The petitioner was indicted on three counts of robbery, and pursuant to an
agreement, he entered guilty pleas and was sentenced to terms of four, five and six
years, to be served consecutively.
The gist of the petitioner’s claim is that because one of his attorneys told
him that he would have to serve eighty-five percent of an aggravated robbery sentence,
he saw no option but to plead guilty to the three counts of robbery and to accept a total
sentence of fifteen years. He asserts that if he had known that he was exposed to a
much earlier release eligibility for aggravated robbery, he would have gone to trial.
At the evidentiary hearing, the petitioner and his two attorneys from the
public defender’s office testified. The petitioner testified that he committed the
robberies but that he did so without a weapon, only pretending to have one. He
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acknowledged giving the police statements about the robberies. He acknowledged that
the victim of one of the robberies testified at the preliminary hearing that he displayed a
gun, but he indicated that the testimony was weak. He also admitted that he told
counsel he would accept twelve years.
The petitioner and the attorneys differed about who primarily represented
him. The petitioner said Assistant Public Defender Natalee Hurley dealt with him most
of the time, including discussing plea bargaining, and Public Defender Mack Garner
only met with him a couple of times. Ms. Hurley said Mr. Garner was the primary
attorney, and she only handled a preliminary hearing and appeared at the petitioner’s
guilty plea hearing because Mr. Garner had another engagement. Mr. Garner said he
handled the cases primarily.
Regardless, the petitioner testified that Ms. Hurley told him that a
conviction for aggravated robbery would mean he would have to serve eighty-five
percent of the sentence as opposed to thirty percent required for robbery. He said that
he considered her comments and decided to accept the fifteen-year offer because he
did not want to serve eighty-five percent. He also testified that the example given by
Ms. Hurley was that he could serve four and one-half years of the fifteen-year sentence
or ten years of the twenty-four or twenty-five-year sentence.
The petitioner acknowledged that the trial court advised him at the guilty
plea hearing that aggravated robbery carried a thirty percent release eligibility date and
the actual release date could vary depending upon the Parole Board’s decision.
However, he stated he did not say anything because he was nervous. He claimed that
without the eighty-five percent advice, he would have taken his chances at trial, stating
he did not believe he could be convicted of aggravated robbery.
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Mack Garner testified that the petitioner told him that the petitioner was
guilty and asked him to get the petitioner the best deal he could. Mr. Garner said he
talked to Detective Manul, who told him the petitioner admitted to the robberies. Under
these circumstances, Mr. Garner was interested in resolving the cases. At that time,
the district attorney had a policy of not reducing charges after indictment, but
agreements could be reached to lesser charges before the grand jury acted. Mr.
Garner was certain he worked out an agreement for the petitioner before the petitioner
was indicted because the petitioner was only indicted for robbery, not aggravated
robbery. He recalled that the petitioner took time before he decided to accept the
fifteen-year offer.
Natalee Hurley testified that she appeared with the petitioner at the guilty
plea hearing at Mr. Garner’s request. She said Mr. Garner had negotiated the
agreement. She said she discussed the terms of the agreement with the petitioner and
advised him that the district attorney would have him indicted for aggravated robbery if
the agreement fell apart. Ms. Hurley testified that she was sure that she discussed with
the petitioner her concern that the Department of Correction could possibly require
eighty-five percent service of a sentence for aggravated robbery for a violent offender
and that she could not guarantee a thirty percent release eligibility. She said she was
not sure about how simple robbery was considered, but she thought she would have
given her opinion that it would not be considered as a violent offense for parole
purposes. She denied promising the petitioner that an aggravated robbery conviction
would carry an eighty-five percent release eligibility date.
The guilty plea hearing transcript reflects that the trial court advised the
petitioner of the punishment ranges for both robbery and aggravated robbery and of the
fact that both carried thirty percent release eligibility dates, with even that being
uncertain. The petitioner testified at the guilty plea hearing that he had not been forced
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or coerced into pleading. He stated that he was accepting the plea offer because he
did not want to risk securing a sentence up to twenty-four years if convicted of
aggravated robbery. The petitioner told the trial court that he had no questions,
complaints, or concerns. He also stated his awareness of and waiver of his rights to a
jury trial, to remain silent, to cross-examine witnesses, and to have witnesses testify on
his behalf.
The trial court found that the petitioner’s attorneys adequately prepared
the case under the circumstances. It found that Ms. Hurley told the petitioner he could
serve up to eight-five percent of an aggravated robbery sentence but would probably
serve no more than thirty percent for simple robbery, depending upon the Parole
Board’s actions. The trial court stated that the advice was couched in terms of
possibilities and depended upon the Parole Board. It found that any misunderstanding
about parole was corrected at the guilty plea hearing, with the petitioner being told the
applicable release percentages and given the opportunity to ask questions. Also, the
trial court stated that at a trial, the petitioner would have been convicted of a Class B
felony, probably two, resulting in a sentence of more than fifteen years. It concluded
that the petitioner had proven no prejudice flowing from the alleged ineffective
assistance of counsel.
In a post-conviction case, the petitioner must prove his grounds for relief
by clear and convincing evidence. T.C.A. § 40-30-210(f). To establish counsel
ineffectiveness, the petitioner must show that counsel’s performance was deficient and
that the deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984); State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
Relative to a claim that a guilty plea resulted from the ineffective assistance of counsel,
the petitioner must show that but for counsel’s errors he would not have pled guilty and
would have insisted upon going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct.
5366, 370 (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).
Relative to our review on appeal, the factual findings of the trial court are deemed
conclusive unless the evidence of record preponderates against them. Cooper v. State,
849 S.W.2d 744, 746 (Tenn. 1993).
Unquestionably, the guilty plea hearing transcript reflects that the
petitioner expressed his understanding that both robbery and aggravated robbery have
thirty percent release eligibility dates. It also shows that he expressed concern about
receiving aggravated robbery convictions and that he was choosing to plead guilty to
robbery to avoid the risk of a higher sentence. We are mindful that a petitioner’s
testimony at a guilty plea hearing “constitutes a formidable barrier” in any subsequent
collateral proceeding because “solemn declarations in open court carry a strong
presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 73, 97 S. Ct. 1621, 1629
(1977). Neither the evidence presented in this case nor the law dispels the reliability of
the petitioner’s testimony at his guilty plea hearing.
The fact that the petitioner committed felonies while on bond for a felony
charge exposed him to mandatory consecutive sentences if convicted of all of the
robberies, which he admitted committing. See Tenn. R. Crim. P. 32(c)(3)(C). He was
reasonably exposed to consecutive sentences by virtue of committing felonies while on
probation. T.C.A. § 40-35-115(b)(6). He was exposed to aggravated robbery
convictions and to enhanced punishments because of his history of criminal activity and
the commission of felonies while on probation. See T.C.A. § 40-35-114(1) and (13)(C).
The petitioner’s exposure to greater sentences was ended by the agreement he
reached. We do not believe that the record preponderates against the trial court’s
findings and conclusions relative to the petitioner entering knowing, understood, and
voluntary guilty pleas regardless of the parole possibilities his counsel had told him.
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In consideration of the foregoing and the record as a whole, we affirm the
judgment of the trial court.
______________________________
Joseph M. Tipton, Judge
CONCUR:
____________________________
Joe G. Riley, Judge
____________________________
Thomas T. Woodall, Judge
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