Thomas T. Nicholson v. State of Tennessee ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
July 28, 2009 Session
THOMAS T. NICHOLSON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Loudon County
No. 10785 E. Eugene Eblen, Judge
No. E2009-00213-CCA-R3-PC - Filed May 12, 2010
The Petitioner, Thomas T. Nicholson, appeals the denial of post-conviction relief in the
Criminal Court for Loudon County from his conviction upon a plea of nolo contendere to
sexual battery by an authority figure, a Class C felony, for which he received a six-year
sentence in the Department of Correction. On appeal, the Petitioner contends that he
received the ineffective assistance of counsel and that as a result, his plea was not
voluntarily, knowingly, or intelligently entered. We hold that the Petitioner received the
ineffective assistance of counsel because he was given erroneous advice about release
eligibility. We reverse the judgment of the trial court denying post-conviction relief, we
vacate the Petitioner’s conviction, and we remand the case for further proceedings consistent
with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
Conviction Vacated; Case Remanded
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and D. K ELLY T HOMAS, J R., JJ., joined.
John E. Eldridge, Knoxville, Tennessee, for the appellant, Thomas T. Nicholson.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Russell Johnson, District Attorney General; Frank A. Harvey, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
The case relates to the Petitioner’s plea of nolo contendere to the sexual battery by an
authority figure of his six-year-old neighbor, J.B. The Petitioner was originally charged with
aggravated sexual battery, a Class B felony, with a relevant range of punishment of eight to
twelve years. At the post-conviction hearing, Jim Widener of the Blount County Sheriff’s
Department testified that on December 23, 2003, before the Petitioner had been charged with
the offense underlying this appeal, he administered a polygraph test to the Petitioner at the
request of John Houston of the Loudon County Sheriff’s Office. He agreed that he gave the
Petitioner a rights waiver form, pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and
that he collected the Petitioner’s biographical data. He said a polygraph evaluation was on
the back of the form.
Mr. Widener agreed that he discussed the case and formulated questions with the
Petitioner during the “pretest phase,” which he said was normal procedure. He
acknowledged the difference between law enforcement and private polygraphers. He said
a control question was used to determine when a person was being truthful. He explained
that a person reacts the same to all questions and that the polygraph scores the intensity of
the reactions. He said that after he administered the polygraph examination, he scored it
while the Petitioner left for a while. He said the Petitioner failed the exam, and he agreed
that when he and Houston resumed their conversation with the Petitioner, they had already
determined that the Petitioner had violated the law.
Mr. Widener testified that he did not administer a second Miranda warning before he
resumed questioning of the Petitioner after the polygraph examination. He said the interview
was videotaped. He agreed that the purpose of the interrogation was to inquire why the
Petitioner failed the polygraph, to get an admission from the Petitioner, and to get a written
confession. He could not remember whether Houston was present for the entire interview,
but he said he would defer to whatever was shown on the videotape. He agreed that during
the interview, he and Houston used phrases such as, “You need to put this behind you,” “You
need to get straightened out and move on,” and “You need to fess up, it’s the best thing you
can do.” He said Houston told the Petitioner that Houston had not spoken with the district
attorney but that if the Petitioner would cooperate, things would be easier for the Petitioner.
He could not recall whether he told the Petitioner that the polygraph machine did not lie or
whether Houston told the Petitioner, “[J]ail is not in the cards. The parents of the child don’t
seem to care or be concerned. I just don’t see nothing bad coming out of this maybe just
simple assault.” He agreed that the videotape would give an accurate account.
On cross-examination, Mr. Widener testified that in every case, he wanted to uncover
the truth. He acknowledged that when a suspect submits to a polygraph examination, he
explains to them that they are doing so voluntarily. He agreed that he told the Petitioner that
the Petitioner was free to leave at any time and that he advised the Petitioner of his Miranda
rights even though he was not required to do so. He agreed that he talked to the Petitioner
in a “folksy” way and that he did not raise his voice. He did not agree that his job was to
make sure the State got a conviction or to help the Defendant’s case. He said that if another
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officer did something inappropriate, unethical, or illegal during a polygraph examination, he
would stop the examination. He said that he would not continue the examination of a person
who seemed to be overly distressed and that he did not feel that he or Houston had unduly
pressured the Petitioner. On redirect examination, Mr. Widener identified the Petitioner’s
written statement, which had been taken by Houston several days before the polygraph exam,
and the statement was received into evidence.
Marena Martin, a child protective services investigator with the Department of
Children’s Services (DCS), testified that she conducted an investigation involving the
Petitioner in December 2003. She said that she sent a “letter of indication” to the Petitioner
after her child protective services investigation was complete and that the Petitioner did not
make any contact with DCS. She said she received a letter from trial counsel asking her what
meetings had taken place and what had been documented. She said that there was a
videotaped forensic interview with the victim and that DCS also interviewed the Petitioner’s
children and three other children who were reported to have been in contact with the
Petitioner. She said that a representative from the district attorney general’s office was
present during the interview with the victim, during the protective investigative team review
meeting, and probably again before the trial. She could not remember when the DCS file was
turned over to the prosecutor. The DCS file was received into evidence under seal for in
camera viewing by the trial court.
On cross-examination, Ms. Martin testified that no additional allegations or charges
were brought as a result of the interviews with the other children. On redirect examination,
Ms. Martin testified that the other children did not report any wrongdoing by the Petitioner.
The Petitioner testified that he had never been in trouble with the police or arrested
before his conviction. He agreed that he had never been given a polygraph examination, that
he had never been interrogated by the police, and that he had never been in a courtroom on
a criminal matter before this case. He said that he had been a reserve officer with the Loudon
County Sheriff’s Department. He said that he received a call on December 20, 2003, asking
him to meet John Houston at the Loudon County Justice Center. He said that Houston was
a friend with whom he had twice ridden on patrol and that he assumed the request was related
to his work. He said that Houston asked him if he knew J.B. and that he replied his son and
J.B.’s brother were best friends. He said that Houston informed him that J.B. claimed he had
put his hand inside her pants. He said he denied it. He said that he also made a written
statement denying the allegation in response to Houston’s request, that Houston asked him
to take a polygraph test, and that he agreed.
The Petitioner testified that he telephoned J.B.’s mother and that J.B.’s mother stated
she believed the Defendant and also believed her daughter. The Defendant said he told J.B.’s
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mother that she had done the right thing, “which any concerned parent would have done and
which . . . I would have done.” He said he did not inquire about J.B.
The Petitioner testified that Houston asked him to meet at the Blount County Justice
Center to take a polygraph exam, which he did. He said that he, Houston, and Widener met
for quite a while before he took the exam and that they took about a thirty minute break after
the exam. He said he did not receive a second Miranda warning before questioning resumed.
He said that he could not remember receiving the first Miranda warning but that he must
have because he had seen the waiver form which he had signed. He said Widener told him
that the polygraph computer indicated he failed the polygraph examination but that what
mattered was Widener’s opinion and Widener believed he had lied. He said that after
questioning resumed, Widener and Houston tried to get him to say he did “something” to
J.B., and he kept saying that he had not. He said they told him that “it will go away” if he
admitted to touching J.B., that he might have done something to J.B. and not remembered,
that J.B. alleged more than one incident, that J.B.’s parents were more concerned about their
son remaining best friends with his son, and that the district attorney would charge him with
assault at most. He said that he told them any placement of his hands on J.B. had not been
sexual and that it would have been to keep her from falling off his lap while they sat at the
computer. He said they told him to “just say yes.” He said he did not give a written
statement. He said he told them he would have to make up a story and would need time.
The Petitioner testified that he did not suspect he would be charged but that his in-
laws encouraged him to hire a lawyer, which he did about a week after he took the polygraph
examination. He said that he hired trial counsel for $3,000, which he understood would
cover the handling of his case. He said that there was never any talk of additional charges
and that after the plea hearing, his mother received a bill for an additional $12,712.50. He
said that he told counsel about the DCS interviews with the other children but that trial
counsel did not do anything about them. He said that he appeared in court at the indictment,
that counsel went into the “back room,” and that when counsel returned, counsel stated trial
was set for June 2, 2005. He said that he did not appear before a judge and that from the day
he was indicted until the day of the plea, he was not in court again about his case. He said
that toward the end of his case, he spoke with counsel on the telephone and saw him perhaps
three or four times. He said that the only discovery he received from counsel was a copy of
his videotaped interview. He said that he did not receive a copy of the district attorney’s file
and that he first viewed the file after post-conviction counsel obtained it. He said he did not
see his written statement from December 20 until a few weeks before the post-conviction
hearing. He said that he never saw the videotape of J.B.’s interview with DCS. He said he
asked trial counsel to view it but that counsel said the district attorney would not allow the
Petitioner to see it. He said that counsel had watched it and had told him it was “pretty
believable.” He said counsel never discussed a trial strategy or a defense theory. He said
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counsel wanted to know what he planned to say and that they reviewed his planned
testimony. He said counsel did not review the elements of the offense charged or speedy trial
issues. He said counsel told him it was a good idea to delay his trial as long as possible
because stories change or people pass on or retire. He said he never heard of a plea bargain
until the day of the trial.
The Petitioner testified that about two or three weeks before trial, trial counsel told
him that he should plead guilty and accept an eight-year sentence. He said counsel advised
him that because of a recent television news broadcast about his case, if he went to trial, the
jury would find him guilty and he would be sentenced to twelve years at one hundred percent
service. He admitted that he felt as if he had said “yes” when questioned about touching J.B.,
and he said counsel told him he would need to explain in his testimony “why I said yes after
four hours talking with Houston and Widener.” When asked if counsel had discussed his
statement and whether it might be suppressed, he replied, “[Counsel] said that due to it being
a polygraph examination that it’s possible we might not be able to have the tape viewed while
Mr. Widener was in the room due to the fact that he was a polygraph examiner. And he was
going to try to do that.” He said that on the day of trial, however, the bailiff brought in a
television monitor in order that the videotape could be viewed. He said counsel told him they
were going to watch approximately ten minutes where only Houston and he appeared. He
said counsel did not inform him that counsel had filed motions to suppress or to dismiss. He
said that on the morning of trial, he anticipated going to trial, that he had not entertained any
notion of pleading guilty to anything, and that he had told counsel this on three to five
occasions. He said he told counsel he was innocent and wanted a trial. He said that in
response to J.B.’s mother’s statement to the media that he needed to pay and that there were
many more children who had been involved, counsel responded to the media that the
Defendant was innocent and planned to go to trial.
The Petitioner testified that his family accompanied him to the trial. He said that trial
counsel took them into the jury room and told them that due to the pressure of the news
broadcast, the jury would find him guilty and sentence him to twelve years. He agreed that
he believed he would receive a twelve-year sentence if he went to trial. He said counsel left
the room and came back with a plea offer of sexual battery by an authority figure, with a
sentence range of three to six years and service at thirty percent. He was told that he would
have to “take all six years.” He said that when he asked about serving three years, counsel
replied, “30 percent of six they might go with, 30 percent of three they won’t.” He said that
another offer contained the word “attempted” and that counsel and counsel’s assistant
explained he would have to serve thirty-five percent of six years, which was about one and
one-half months longer. He said that shortly before noon, counsel said the judge wanted an
answer. He said he chose to take what he thought was the shorter sentence. He said that
counsel told him the sentence would be a maximum of 1.8 years and that with “good time”
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it would shorten to about one year and two or three months. He said counsel told him that
if he took the plea offer, he would be out of prison in time to teach his son to drive.
The Petitioner testified that trial counsel explained that a plea of nolo contendere
meant that he was not admitting guilt. He said he again told counsel that he did not do
anything to J.B., that he understood the nolo contendere plea to mean that he did not do
anything, but that one year would be similar to going overseas as he had done in the Navy.
He said counsel and counsel’s assistant assured him that at the end of a year, he would be
able to put the whole thing behind him. He said he did not understand and counsel did not
explain that a nolo contendere plea was treated in the law as a guilty plea. He said that
counsel never mentioned parole or that a psychiatrist or licensed psychologist would have
to certify that he did not pose a likelihood of committing a sexual offense in order that he be
released on parole, pursuant to Tennessee Code Annotated 40-35-503(c).1 He said that he
had since been up for parole and that he was told to “take it to the door,” meaning that he
would have to serve the entire sentence of which over four years remained. He said that
counsel did not explain the lesser-included offenses of aggravated sexual battery or tell him
that if he had gone to trial, the jury would have been able to determine whether he was guilty
of a lesser-included offense. He said counsel did not say that sexual battery by an authority
figure was a lesser-included offense of aggravated sexual battery. He agreed that he pleaded
guilty to sexual battery by an authority figure to avoid the twelve-year sentence at one
hundred percent service and that he had since learned sex offenders were usually denied
parole. He said that he would have proceeded to trial had he known.
The Petitioner testified that neither trial counsel nor the trial court informed him that
his indictment for aggravated sexual battery required amendment to sexual battery by an
authority figure in order for the plea to be valid. He said that counsel also represented him
in his divorce and advised him to “just say yes” when he appeared before the judge, even if
he were unsure of a response. He said that this instruction affected him at the guilty plea
hearing because he felt he was only permitted to answer “yes.” He said that during the plea
hearing, there was a loud argument between his mother and his ex-wife in the hallway
1
T.C.A. § 40-35-503(c) provides in pertinent part:
No person convicted of a sex crime shall be released on parole unless a
psychiatrist or licensed psychologist designated as a health service provider
has examined and evaluated the inmate and certified that, to a reasonable
medical certainty, the inmate does not pose the likelihood of committing
sexual assaults upon release from confinement. The examination and
evaluation shall be provided by psychiatrists or licensed psychologists
designated as health service providers whose services are contracted or
funded by the department of correction or the board of paroles.
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outside the courtroom that distracted him. He agreed that the transcript from the guilty plea
hearing reflected that he nodded his head when the trial court asked him if he understood the
plea agreement. He said this occurred while he was distracted by the commotion in the
hallway.
The Petitioner testified that he asked trial counsel during the guilty plea hearing what
would happen if he changed his mind and counsel responded that “once you take the plea it’s
over.” He said that about two weeks later, he called counsel and stated he no longer thought
the plea bargain was a good idea. He said that counsel replied that he received a “great deal”
and that a year would pass quickly. He said he asked if he could set aside the plea and
counsel again stated that it was a “great deal.” He said he did not believe that his plea was
made voluntarily because counsel coerced him to take the plea because it was the “easy way
out” for counsel. He said he would not have taken the plea if he had known that he was
going to have to serve a six-year sentence in confinement. He said that from what he had
learned since the guilty plea hearing, he did not believe that counsel had ever been prepared
for the trial and that counsel’s lack of preparation affected the advice he was given. He said
he never saw a copy of the indictment prior to the plea hearing.
On cross-examination, the Petitioner would not agree that he wanted to have the case
resolved quickly. He said trial counsel told him the case would take a long time. He agreed
that initially, he did not think the case was a “big deal” because he had done nothing wrong.
When asked whether he remembered his girlfriend’s stating that she would convict him after
watching his videotaped interview, he responded that his girlfriend also said she would want
to see all the evidence. He said counsel told him that things looked bad for him. He agreed
that he did not have to take the polygraph examination, that he went voluntarily, that he could
have left at any time, and that he received Miranda warnings. He said that he understood his
rights and that he had seen them before on television. He said that although Widener told
him he was free to leave, he felt he could not until the police got a confession. He
acknowledged that he walked out at the end of the interview without giving the officers a
written statement. He said that Houston told him that he had some time to make up a story
and that he was supposed to contact Houston after Christmas and have a statement ready.
When asked why it took time to tell the truth, he replied, “It doesn’t. But it takes time to
make up a story.” When asked why he would do that, he replied, “They told me everything
I did was wrong. And the only way they could get rid of it was to say that I did it.” He
agreed that he never provided a written statement following the videotaped interview.
The Petitioner testified that he was told a $3,000 retainer was required by trial
counsel. When asked if he understood what the word “retainer” meant, he replied that he
“thought it was kind of expensive to have a case for $3,000.” He said he did not recall
counsel’s telling him that there might be more fees, nor did he recall counsel discussing the
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elements of the charge or of any other offenses to which he might have pled guilty. He said
he and his girlfriend investigated the elements of the charge on the Internet. He said counsel
never told him he might have to serve more than thirty percent of the sentence for sexual
battery by an authority figure. He said counsel guaranteed him he would be released in a year
and a few months. He said he did not remember the district attorney general’s announcement
of the plea agreement and sentence recommendations at the guilty plea hearing because there
was a commotion in the hallway. He said that there was a pause in the proceedings and that
the bailiff left the courtroom. He said he did not remember nodding yes to the trial court’s
question, “Is that the way you understand the agreement?” He said he did not nod because
he was told to “say yes or no” when he was in front of the judge or was asked a question. He
said that he asked counsel to view the videotape of the victim’s statement and that counsel
told him the district attorney would not allow it. He said his family members encouraged him
to take the plea offer because it was the better of two options. He acknowledged that the trial
court informed him he had a right to go to trial, that a jury was ready, and that he had the
right to compel and confront witnesses. When asked whether he understood that there was
always a gamble when a case proceeded to trial, he replied, “It wasn’t a gamble in this case.
I was told that if I went to trial I would be found guilty. It wasn’t a question of they may or
may not. [Trial counsel] told me they would find me guilty and they wouldn’t believe me[;]
they would believe her.” He said that he was told he would have to register for only ten years
on the sex offender registry if he accepted the plea offer and that this meant a lot to him. He
agreed the nolo contendere plea also meant a lot to him.
William Nicholson, the Petitioner’s son, testified that he was present for some of the
discussions between the Petitioner and trial counsel. He said that according to trial counsel,
the Petitioner was to be released after serving thirty percent of six years. He said he thought
the Petitioner would be released either before or when he got his driver’s license, which
would have been within a year and eight months. On cross-examination, Mr. Nicholson
acknowledged that he was not present for all the discussions about the plea offer and that he
could not remember exactly which words were used. He recalled the Petitioner’s being told
that he would have to serve thirty percent of his sentence in confinement.
Alice Baumeister, the Petitioner’s mother, testified that she met with trial counsel after
the Petitioner was indicted and that trial counsel said the Petitioner was the worst witness in
the world, that he had no defense for the Petitioner, that the jury would believe J.B., and that
the best thing would be for the Petitioner to plead guilty. She said that counsel told her the
district attorney would not allow them to view the video of J.B.’s statement. She said that
she encouraged her son to plead guilty because counsel stated the court would find him guilty
and the Petitioner would be “gone” for twelve years. She said that she also encouraged the
Petitioner to take the plea offer because he would be required to register with the sex
offender registry for only ten years. She said that she understood the Petitioner would be
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incarcerated for only one and one-half years. She said that they discussed the fact that the
Petitioner would probably miss his daughter’s high school graduation but that he would be
out of prison in time to teach his son to drive.
On cross-examination, Ms. Baumeister testified that she met with trial counsel at his
office maybe twice and that she inquired about a psychosexual evaluation. She said that
counsel responded that it was too soon for such an exam and that they would need to wait
until closer to the trial. She did not agree that she offered counsel $25,000 to have the case
dismissed, but she said she offered him $10,000. When asked how counsel was supposed
to accomplish a dismissal, she responded, “[S]uppos[ab]ly he had a defense. Finally.”
Joe Baumeister, the Defendant’s stepfather, testified that he was present for the first
half of the discussion between the Petitioner and trial counsel concerning the plea agreement.
He said that counsel recommended the Petitioner accept the plea because counsel did not
think counsel could win the case. He said counsel advised that the Petitioner would have had
to serve twelve years in confinement if the Petitioner went to trial. He said the plea offer was
for three to six years, and with parole, he expected the Petitioner to be released in eighteen
months or less. On cross-examination, Mr. Baumeister confirmed that he was not present for
the last half of the discussion and that the final decision was not made in his presence.
Trial counsel testified that he had been licensed to practice law in Tennessee in 1973
and that he practiced until 1996, when he left to work in the trust department of a bank. He
said he did not keep his law license up to date during the time at the bank. He said he
returned to practice in 2001.
Trial counsel testified that he met with the Petitioner before the Petitioner had been
charged with a crime. He said that he did not enter into written contracts with clients and that
he verbally informed the Petitioner of his fee. He said that the Petitioner paid the retainer in
two installments and that he believed the Petitioner paid him for handling the Petitioner’s
divorce. He said that he explained the retainer and hourly billing arrangement. He said that
the itemized statement from February 8, 2006, was prepared by his staff by their going
through his file, relying on his notations, and calculating the time spent on each task. He said
he did not always keep a contemporaneous record of his time. He said that he approved the
statement.
Trial counsel testified that the district attorney general’s office had an “open file”
policy and allowed him to view the Petitioner’s file and to copy what he wanted. He said he
filed a discovery request. He said that he did not give the Petitioner copies of the file’s
documents but that he gave the Petitioner a copy of the Petitioner’s videotaped statement.
He said that he viewed J.B.’s statement at the district attorney’s office. He could not recall
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whether the district attorney told him that he could not have a copy of the videotape, but he
believed he was not entitled to a copy because of the confidentiality rules involving minor
children. He said the Petitioner did not ask to see the videotape of J.B. He agreed that his
billing statements showed he met with the Petitioner in January 2004 and that he did not meet
with the Petitioner again until January 2006. He claimed that he had met with the Petitioner
a few other times, although he agreed that none of those meetings were reflected on the
billing statement. He acknowledged that the billing statement showed he reviewed the
videotape of the Petitioner’s statement one week before the trial. He agreed that the billing
statement listed 5.4 hours of reviewing videotape on January 28 and 5.5 hours of reviewing
videotape and research on January 29. He explained that he was documenting the statements
on the videotape by a numbering system in order to locate specific portions at the trial.
Trial counsel agreed that four witnesses were listed on the Petitioner’s indictment.
He said that he interviewed Houston and that he could not remember whether he talked to
Houston about the DCS file. He said he did not make a memorandum of the interview but
that he might have made notes. He said he spoke to someone at DCS, but he could not
remember whether it was Ms. Martin. He recalled that the other children’s father told him
that DCS had interviewed them and that the father was glad the Petitioner had not molested
them. He said he did not interview the other children because he did not believe the
interviews would have been exculpatory to the Petitioner. He would not agree that he should
have filed a motion for exculpatory evidence and asked for memoranda of the DCS
interviews with the other children. He said that he attempted to talk to J.B.’s mother via
telephone and that she refused. He said he did not attempt to interview J.B. He said he did
not interview Widener about the procedures for polygraph exams. He would not agree he
told the press that the Petitioner was innocent and that he would fight in court. He said that
he conducted most of the research himself and that he did not have an investigator.
Trial counsel testified that he filed motions in limine and to suppress about a week
before the trial. He said that he would not disagree with the court record showing the
motions were filed two days before trial. When asked if he knew that filing motions two
days before trial was too late, he replied that the motions were not necessarily late if the
purpose was to prompt the district attorney to negotiate. He said that he was familiar with
local rule 201(B), which stated that absent compelling reasons, new motions filed within ten
days of trial would be considered not timely filed and would be summarily overruled. He
acknowledged there was no hearing on the motion to suppress.
Trial counsel could not recall the instructions he gave the Petitioner regarding the
Petitioner’s statements to the court about the Petitioner’s divorce. He agreed that the
Petitioner persisted in saying that he had done nothing wrong and wanted a trial, even on the
morning the trial was scheduled. He said he told the Petitioner before the trial that if the
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district attorney would reduce the charges, he would recommend the Petitioner accept a plea
offer because he felt J.B. would make a credible witness and the Petitioner would not. He
disagreed that he recommended the Petitioner accept an eight-year sentence. He said the
Petitioner’s recollection that he stated “take the plea or get twelve years in jail” was not true.
He disagreed that he told the Petitioner he would have to serve only thirty percent of the six-
year sentence for sexual battery by an authority figure. He said that he told the Petitioner he
would have to serve at least thirty percent of the sentence. He said that he probably did not
tell the Petitioner that sexual battery by an authority figure was not a lesser included offense
of sexual battery, that the indictment would need to be amended, or that the Petitioner would
need to consent to an amended indictment. He said that he explained to the Petitioner the
range of punishment, the requirements for the range, and the consequences regarding the sex
offender registry. He said that he also explained that the Petitioner was allowed time off for
good conduct and that the plea did not mandate a day-for-day sentence. He could not
remember whether he reviewed the elements of the offense with the Petitioner. He assumed
but could not remember, whether he reviewed the statutes regarding a sex offender’s release
from custody, including the provision that the Petitioner would have to be certified by a
mental health expert. He said that he probably did not tell the Petitioner that sex offenders
usually do not get out of jail early or that the district attorney general likely would oppose
parole. He could not remember whether the Petitioner contacted him after the plea hearing.
On cross-examination, trial counsel testified that the materials in his file were made
available to the Petitioner. He agreed that having once been an assistant district attorney
general, he was familiar with the district attorney’s open file practice. He agreed that if the
Petitioner had indicated a desire to see J.B.’s videotaped statement, he would have arranged
it and taken the Petitioner to see it. He acknowledged that the Petitioner did not want to be
on the sex offender registry for life and that he researched the sex offender registry rules. He
said that he reviewed every element of the charged offense and the offense to which the
Petitioner pled. He agreed that his usual experience with the local rule regarding late-filed
motions was that the court leniently granted continuances. He explained the trial strategy had
been to assert that the Petitioner was not guilty, that the Petitioner had been misled and
admitted something he should not have, that there was a lack of opportunity to commit the
offense, and to limit the charge to one occurrence. He said that the Petitioner’s mother
offered him $25,000 to make the case “go away” and that he refused it. He said the
Petitioner’s mother told him after the plea hearing that she was pleased with the outcome and
was going to pay the rest of his fee, which he estimated to be $10,000. He said he had not
been paid.
Trial counsel testified that he did not promise the Petitioner he would be released after
serving thirty percent. He said he informed the Petitioner that the Petitioner would have to
go before the parole board. He said the disturbance during the guilty plea hearing occurred
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after the Petitioner’s plea had been entered, and he agreed that it did not make sense for the
Petitioner’s family to be outside the courtroom during the hearing.
On redirect examination, trial counsel testified that it was not true that he waited until
January 2006 to begin serious work on the Petitioner’s case. He recalled talking with the
Petitioner several times and meeting with the Petitioner and his girlfriend. He said he waited
until two weeks before trial to do the majority of the trial preparation because he avoided
having to prepare two or three different times. He said that he no longer had his trial
notebook from the case but that he still had some of the notebook’s contents. He produced
“at least a partial outline of [an] opening statement” and part of J.B.’s cross-examination,
which were received into evidence.
Knoxville attorney Jonathan Cooper testified that he had practiced law for fifteen
years and that his practice consisted almost exclusively of criminal defense. He said that he
had represented persons accused of sex offenses “many times.” He said that he had reviewed
the court file, the district attorney’s file, the plea hearing transcript, and the discovery,
including two videos, and that in his opinion trial counsel did not render effective assistance.
He said his opinion was based on trial counsel’s investigation and preparation of the case and
counsel’s representation of the Petitioner on the morning of the plea hearing. He based his
opinion on the Petitioner’s statements as well as the other witnesses’ testimony at the post-
conviction hearing. He said trial counsel’s performance failed because counsel did not
interview witnesses, did not prepare the Petitioner and witnesses for trial, did not
communicate with the Petitioner, did not provide discovery to the Petitioner, and waited until
the last two weeks before trial to “do the heavy lifting in his case preparation.” He said
counsel’s failure to interview witnesses would not have allowed counsel to prepare
adequately for the trial. He said counsel should have sought the statements from DCS
concerning the other children because it would have been important for a jury to hear that
similarly situated children who had been in the Petitioner’s house had not made allegations
of abuse. He said that counsel’s filing motions two days before trial was not adequate and
that it did not appear from the plea hearing transcript that counsel was willing to seek a
continuance to give him more time to litigate the case. He said that the motion to suppress
was critical and that counsel could not have effectively represented the Petitioner without
having prosecuted it. He said that if the statement had been suppressed, half of the State’s
case would have been lost and that even if the statement had not been suppressed, counsel
would have gained valuable testimony and insight into the State’s case.
Mr. Cooper testified that any time a client contemplates a verdict or a plea to a sex
offense, he informs them that the sentence will be different because parole eligibility for sex
offenders is different. He said that the percentage of time after which sex offenders are
eligible for parole is meaningless because they have to be certified eligible for release, which
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does not happen on their release eligibility date. He agreed that trial counsel should have
explained this to the Petitioner. He said that he was familiar with a Tennessee Court of
Criminal Appeals case in which the dissenting judge stated that the odds of a person
convicted of a sex crime being released on parole were slim to none.2
On cross-examination, Mr. Cooper testified that he had not tried any cases in the
district in which the Petitioner had been prosecuted. He said he did not know the custom and
practice of the trial court regarding late-filed motions before hearing about it at the post-
conviction hearing. In response to a question regarding the custom and practice of the court
regarding continuances, he said that in his experience, they were liberally granted. When
asked if these were the sorts of things he should have investigated before coming to court to
render an opinion, he replied that he did not base his opinion on the trial court’s policy for
granting continuances. He said he did not interview the prosecuting attorney or the State’s
attorney handling the post-conviction hearing. He would not agree that it would have been
a good idea to interview the State’s attorneys because he did not know how the interviews
would be relevant. He said he did not speak to the trial judge about the alleged disturbance
in the courtroom. He said he did not talk to the court reporter, the bailiffs, or the court
officers from the day of the guilty plea hearing because the disturbance in the courtroom did
not factor into the terms of his opinion. He agreed there was a dispute as to what occurred
during plea negotiations. He said he was being paid an hourly rate of $225 for his work on
the case.
The trial court received into evidence the Defendant’s videotaped statement. In our
view, it reflects that after the Defendant submitted to the polygraph examination and was
informed that he had failed it, the following exchanges occurred:
Detective Widener: You failed. Every time you were asked if
you touched J.B., you failed. That’s a
foregone conclusion. We need to figure
out was it three or four times and nothing
more, or anything more than touching.
...
The Defendant: I don’t recall putting my hand deliberately
into her pants. I’ve been thinking about
this all weekend. Did I do this? Was it
wrong?
...
2
See Jerome William Devereaux v. State, No. E2004-01891-CCA-R3-PC, Jefferson County (Tenn.
Crim. App. June 8, 2005) (Tipton, J., dissenting), app. denied (Tenn. Oct 24, 2005).
-13-
Detective Widener: Let me ask you this from being an
investigator: Is [J.B.] the only child that
you’ve ever touched inappropriately?
The Defendant: Yes–yes.
...
Detective Widener: How long back do you remember it
happened?
The Defendant: I only recall the one time, maybe two
times. She sat on my lap–
Detective Widener: How long back does that go?
The Defendant: Six months, a year.
...
Detective Widener: And there was never anything other than
the touching? Right?
The Defendant: That would have been it, yes. She sat on
my lap, playing a game, my hands are
holding her so she don’t fall–
Detective Widener: Do you remember putting your hand into
her panties?
The Defendant: I don’t remember any arousal–
Detective Widener: Let’s just put the arousal out–
The Defendant: Or any intention.
Detective Widener: You remember it actually happening,
though. You have to.
The Defendant: I have to just since you’re saying it’s in
there (pointing to the polygraph
examination results).
...
Detective Houston: I’ve got down in here “a couple of times.”
The Defendant: No. Not a couple times.
Detective Houston: How many?
The Defendant: The one occurrence is all I can remember
... .
...
Detective Houston: You stuck your hand down there. You
know you did.
The Defendant: That’s what all the tests said.
...
Well, you know, anyways, since I said
before, I mean, six months ago, just
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whatever got me. I don’t know what
date–eight months, six months, a year,
whatever it was, it’s kinda like “this ain’t
right, let’s throw it out the window.” And
after that–this ain’t right. Start over. Keep
going forward. . . . The one occurrence
that it happened. The next time she’s on
piggyback, I don’t think anything about it.
Okay. Bye. Have a good day. Just the
one occurrence. . . . It happened–it was
done, whatever it was.
...
Detective Widener: Just one time?
The Defendant: Yes.
Detective Widener: Remember when it happened?
The Defendant: No.
Detective Widener: About?
The Defendant: Yeah, . . . eight months ago.
...
I don’t recall. I want a little time to think
about the whole . . . I mean I . . . so I can
get it all straight instead of making it up
and adding–
Detective Widener: What was it that you did? That you
realized you did something wrong.
The Defendant: Had my hands in her pants.
Detective Widener: In her panties?
The Defendant: (nods)
In its written order denying post-conviction relief, the trial court noted the conflict in
testimony but did not make a credibility finding. The court stated:
A. The Petitioner alleges his decision to plead was based
upon his having been told that he would be released from prison
after “30% of six years[.]” The testimony presented is in
conflict. The Petitioner maintains he was so informed while
counsel testified he never assured Petitioner he would be
released after service of 30%. The Petitioner’s other witnesses
testified to conversations concerning a 30% release date but did
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not testify Petitioner was explicitly told he would be released
after such percentage.
Very importantly, the Court notes that during the entry of
the plea, the fact that the Department of Correction would be the
agency governing his release date by parole was stated, as was
the fact that while he was pleading as a Range I Standard
Offender, he could do things that might cause him to serve more
time. Most importantly, it was clearly stated that he needed to
understand that this Range I Standard is an eligibility date and
did not mean that he would be released precisely at that time.
The Petitioner indicated that he understood his agreement in that
way by nodding yes as to his understanding. The Court finds
that the Petitioner has not carried his burden of proof as to this
issue.
B. Petitioner maintains that counsel unreasonably failed
to explain the nature and elements of the charge against him or
of the various charges discussed in terms of a plea. Original
counsel for the Petitioner testified that he was sure he had
covered the elements of the offense with the Petitioner prior to
the time of plea in that that was his practice in all cases. Trial
counsel testified that the Petitioner’s own family members
opined to him that the Petitioner would be found guilty by a jury
after they reviewed the evidence against him, and Petitioner in
his Petition acknowledges that he gave a confession on video,
albeit Petitioner claims said confession was false. It is the
Court’s opinion that Petitioner’s decision to plead guilty was a
tactical decision based upon the facts of the case and that even
if the Petitioner did not have a clear understanding as to each
and every element of each and every offense that might be
involved in the case, a more complete understanding by him of
the specific elements of any of the possibly involved offenses
would not have resulted in a different decision by him or a
different result. In any event, the Court does not find that he has
established this ground by clear and convincing proof nor that
he was so prejudiced by not understanding the elements of each
and every such offense. This ground is without merit.
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C. Petitioner claims that trial counsel unreasonably failed
to prepare a defense for Petitioner at trial. Although not
elaborated upon within paragraph c, the Court takes this ground
to include Petitioner’s allegations with regard to his statement
and the potential suppression thereof.
At hearing the Court received testimony concerning the
statement made by the Petitioner which was the subject of the
Motion to Suppress filed by trial counsel. Had a hearing on said
Motion been held before this Court prior to entry of a plea,
based upon the proof presented at hearing the Court would not
have suppressed such statement, feeling it to have been
voluntarily and intelligently made. From the testimony at
hearing it appears the State conditioned the plea agreement
ultimately entered into upon the Petitioner not pursuing said
Motion to Suppress in any event. Finally, the Court notes that
even if said statement had been suppressed, the State would
have been allowed to use it in cross examination should the
Petitioner have testified and denied the allegations of the victim
herein. Being fully cognizant of a defendant’s right not to
testify, in the absence of denial by the Petitioner at a trial, his
odds of success would have been remote. The Court feels that
the decision not to pursue the Motion to Suppress was a tactical
one and within the realm of competent representation of the
Petitioner. Said ground is without merit.
Petitioner alleges that the Court was without jurisdiction
to accept the plea herein in that Sexual Battery by an Authority
Figure was not and is not a lesser included offense of
Aggravated Sexual Battery. Sexual Battery by an Authority
Figure was listed as the conviction offense on not only the
Judgement Order but also on the negotiated plea agreement
signed by the Petitioner and his trial counsel. Under the
applicable case law, the Court finds that the proceedings herein
sufficiently put the Petitioner on Notice of the charge for which
he was convicted and gave the Court jurisdiction to accept the
plea entered herein. The Court finds the Petitioner gave
knowing consent to what amounted to an amendment of the
indicted charge and pled to same for tactical reasons to avoid the
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risk of a much more significant sentence should he have been
found guilty by a jury.
While the stipulation of fact did not cover all elements of
Sexual Battery by an Authority Figure, this is not a
constitutional defect and is not sufficient for Post Conviction
Relief. The Petitioner’s plea herein waived all non-
jurisdictional defects. This ground is without merit.
Petitioner alleges that counsel failed to fully advise him
of the impact of his plea in terms of the Sex Offender Registry
Laws. The Court notes that it is not alleged nor has it been
shown by any proof that counsel gave the Petitioner erroneous
advice but rather that the advice given by him was incomplete.
The Petitioner did not indicate in his testimony that these
matters were significant in his determination of whether to
accept or reject the plea offer ultimately entered into and clearly
did not establish that but for counsel’s advice concerning the
Sex Offender Registry issues the result or his decision would
have been different. This ground is without merit.
ANALYSIS
The Petitioner contends that the trial court erred when it dismissed his petition for
post-conviction relief. He argues that he received the ineffective assistance of counsel and
that, as a result, his plea was not voluntarily, knowingly, or intelligently made. In this regard,
the Petitioner lists six points on which he claims that counsel rendered ineffective assistance.
The State counters that the trial court properly determined that the Petitioner received the
effective assistance of counsel.
The burden in a post-conviction proceeding is on the Petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, we
are bound by the trial court’s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.
2001). Because they relate to mixed questions of law and fact, we review the trial court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2006).
-18-
Under the Sixth Amendment, when a claim of ineffective assistance of counsel is
made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient
and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing
that counsel’s performance fell below a reasonable standard is not enough because the
Petitioner must also show that but for the substandard performance, “the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. The Strickland
standard has been applied to the right to counsel under article I, section 9 of the Tennessee
Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). The performance prong requires a petitioner raising a claim of ineffectiveness to
show that the counsel’s representation fell below an objective standard of reasonableness or
“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.
The prejudice prong requires a petitioner to demonstrate that “there is a reasonable
probability that, but for counsel’s professional errors, the result of the proceeding would have
been different.” Id. at 694. A reasonable probability means a “probability sufficient to
undermine confidence in the outcome.” Id. When a petitioner pleads guilty, he must show
a reasonable probability that, but for the errors of his counsel, he would not have pled guilty.
See Hill v. Lockhart, 474 U.S. 52, 59 (1985); Adkins v. State, 911 S.W.2d 334, 349 (Tenn.
Crim. App. 1994).
In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were
“within the range of competence demanded of attorneys in criminal cases.” Further, the court
stated that the range of competence was to be measured by the duties and criteria set forth
in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v.
DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Baxter, 523 S.W.2d at 936. Also, in
reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689; see Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982). Thus, the fact that a particular strategy or tactic failed or even hurt the defense
does not, alone, support a claim of ineffective assistance. Cooper v. State, 847 S.W.2d 521,
528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical choices if they
are informed ones based upon adequate preparation. See DeCoster, 487 F.2d at 1201;
Hellard, 629 S.W.2d at 9.
-19-
A. Motion to Suppress (Petitioner’s issue I.A.)
The Petitioner argues that he received the ineffective assistance of counsel because
trial counsel filed a motion to suppress and a motion to dismiss two days before the trial,
despite knowing that a local court rule mandated summary dismissal of the motion unless it
was filed at least ten days before trial. He argues that knowledge of the outcome of the
suppression hearing was and should have been a critical factor in his decision to plead guilty.
He also claims that his statement to Widener and Houston was not knowingly, voluntarily,
or intelligently made and would have been suppressed had counsel prosecuted the motion.
The State counters that the plea offer was conditioned on the Petitioner’s withdrawal of the
motion to suppress and that counsel made a tactical decision not to pursue it. Insofar as the
plea offer was conditioned upon the Petitioner’s withdrawal of the motion, we agree with the
State.
This court has stated that if arguable grounds exist to suppress incriminating evidence,
then an attorney, as a zealous advocate for the client, should move to suppress that evidence.
See Robert C. Bellafant v. State, No. 01C01-9705-CC-00183, Maury County, slip op. at 10
(Tenn. Crim. App. May 15, 1998). Where there are no arguable grounds to suppress, the
attorney is not ineffective by refraining from filing a motion to suppress. See Stephen
Bernard Wlodarz v. State, No. E2002-02798-CCA-R3-PC, Hawkins County, slip op. at 7
(Tenn. Crim. App., at Knoxville, Dec. 3, 2003), app. denied (Tenn. May 17, 2004). Even if
an attorney’s failure to timely file the motion was deficient performance, the Petitioner must
demonstrate that he was prejudiced by the deficiency.
In addition, the fact that a particular strategy or tactic failed or even hurt the defense
does not, alone, support a claim of ineffective assistance of counsel. Vaughn v. State, 202
S.W.3d 106, 121 (Tenn. 2006) (citing Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992)). A petitioner “may not second-guess a reasonably based trial strategy by his
counsel, and cannot criticize a sound, but unsuccessful, tactical decision made during the
course of the proceedings.” Dellinger v. State, 279 S.W.3d 282, 295 (Tenn. 2009) (quoting
Adkins v. State, 911 S.W.2d at 347). This court has stated that the abandonment of a motion
to suppress in exchange for a plea agreement is not ineffective assistance when it is a tactical
decision to avoid the risk of a greater punishment at trial. See Shon Maurice Pierce v. State,
No. W2005-01493-CCA-R3-PC, Dyer County, slip op. at 5 (Tenn. Crim. App. Mar. 16,
2006); see also Gary Randall Yarnell v. State, No. E2004-01762-CCA-R3-PC, Blount
County, slip op. at 7 (Tenn. Crim. App. Aug. 15, 2005), app. denied (Tenn. Feb. 6, 2006).
At the evidentiary hearing in this case, the evidence was undisputed that the Petitioner
made an inculpatory statement to the police before he hired trial counsel. In a videotaped
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interview after the Defendant had voluntarily submitted to a polygraph examination, the
Defendant admitted that he put his hands inside J.B.’s panties.
Counsel testified that he had reviewed the Petitioner’s videotaped statement and J.B.’s
videotaped statement and that he did not believe the Petitioner would make a credible
witness. He said that he filed the motion to suppress to prod the State to make a plea offer
because the State had been unwilling to negotiate a plea agreement. He acknowledged that
the motion was filed late, but he noted that the trial court was lenient in granting
continuances. In its order denying post-conviction relief, the trial court found that the
decision not to pursue the motion to suppress was a tactical one. The court noted that the
plea offer was conditioned upon the Petitioner’s not pursuing the motion, and it stated that
it would have denied the motion to suppress because it believed the Petitioner’s statement
was freely and voluntarily given. The record does not preponderate against the trial court’s
determination that counsel’s decisions to file the motion to prod the district attorney to make
a plea offer and not to pursue the motion were tactical ones and that counsel’s decisions were
within the realm of competent representation. The Petitioner is not entitled to relief on this
issue.
B. Exculpatory Evidence (Petitioner’s issue I.B.)
The Petitioner claims that he received the ineffective assistance of counsel because
counsel failed to pursue exculpatory evidence from interviews of children conducted by a
DCS representative. When a Petitioner alleges that he received the ineffective assistance of
counsel based upon counsel’s failure to investigate a case properly, he bears the burden at
the post-conviction hearing of demonstrating what that investigation would have revealed.
Owens v. State, 13 S.W.3d 742, 756 (Tenn. Crim. App. 1999). If counsel failed to
investigate or discover exculpatory evidence, “the determination whether the error
‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will depend
on the likelihood that discovery of the evidence would have led counsel to change his
recommendation as to the plea.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). The record
reflects that counsel was aware of the DCS interviews but that he did not seek to review them
because he believed that evidence tending to show that the Petitioner had not harmed
similarly situated children was not exculpatory:
[Post-conviction Counsel:] In your possession you don’t have
any interviews of the [other]
children do you?
[Trial Counsel:] No, I do not.
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[Post-conviction Counsel:] That’s not in the D.A.’s file was it?
[Trial Counsel:] No, sir, it was not. However, I had
totally forgotten about this until it
came up in examination earlier. I
do recall [the other children’s
father] coming to me at some point
and saying that I was representing
[the Petitioner] and someone had
interviewed his children. And you
know he said he talked to them in
great length and that you know he
was lucky that they - [the
Petitioner] had not done anything to
them. And I had forgotten
completely about that.
[Post-conviction Counsel:] Would that be exculpatory as far as
you are concerned?
[Trial Counsel:] No, sir, I didn’t think that the fact
that the other children had been in
the house at some point in time
without having some sort of an
event was exculpatory.
[Post-conviction Counsel:] In all fairness should you not have
filed a motion for exculpatory
evidence and asked for
memorandums of those interviews?
[Trial Counsel:] Well, if I’m not mistaken I think
that part of my discovery motion
did include [a] motion for
exculpatory evidence-
[Post-conviction Counsel:] You did not press that motion to get
those memorandums of
interview[s] which are now part of
the sealed record?
-22-
[Trial Counsel:] No, sir, I took what the D.A. had in
the file in the open file policy.
We note that the interviews with the other children were received into evidence and
placed under seal at the post-conviction hearing, but they are not contained in the record on
appeal. Counsel testified that he filed a discovery motion which included a request for
exculpatory evidence. Counsel also testified that simply because other children did not report
sexual abuse at the hands of the Petitioner did not negate the victim’s allegations. Although
the trial court did not make findings of fact regarding counsel’s decision not to pursue
evidence contained within the DCS interviews, the record does not preponderate against the
trial court’s ultimate determination that the Petitioner failed to show that counsel’s
representation was deficient and that he was prejudiced as a result. He is not entitled to relief
on this issue.
C. Trial Preparation (Petitioner’s issue I.C.)
The Petitioner contends that trial counsel failed to prepare a defense, despite knowing
for two years that the Petitioner claimed he was innocent and wanted a trial, by failing to
interview or subpoena Widener, Martin, the victim’s parents, and the victim. The State
responds that counsel did not render ineffective assistance of counsel because counsel
prepared a defense strategy.
When a petitioner contends that trial counsel’s failure to investigate or interview
witnesses resulted in ineffective assistance, he must be able to “produce a material witness
who (a) could have been found by a reasonable investigation and (b) would have testified
favorably in support of his defense if called.” Black v. State, 794 S.W.2d 752, 758 (Tenn.
Crim. App. 1990). If a petitioner faults counsel for failure to interview known witnesses, he
must likewise show that the witnesses had critical evidence that was not used, which
prejudiced the petitioner. Id. at 757. Thus, a petitioner’s failure to present the testimony of
any witnesses that he claims should have been interviewed is fatal to his challenge of
ineffective assistance based on failure to interview or discover witnesses. Furthermore, when
a petitioner alleges that he received the ineffective assistance of counsel based upon
counsel’s failure to investigate a case properly bears the burden at the post-conviction
hearing of demonstrating what that investigation would have revealed. See Owens, 13
S.W.3d at 756.
At the post-conviction hearing, the Petitioner questioned Widener and Martin, but not
the victim’s parents or the victim. The record shows that trial counsel attempted to interview
the victim’s mother but that she had refused. Nothing precluded the Petitioner from issuing
subpoenas to the victim’s parents or to the victim to appear at the post-conviction hearing.
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Widener’s testimony did not reveal any critical evidence that was not used and which
prejudiced the Petitioner. Martin testified that she interviewed the victim, the Petitioner’s
children, and another family’s children and that none but J.B. reported any inappropriate
sexual contact. Although the trial court did not issue findings of fact concerning trial
counsel’s failure to interview witnesses, the burden was on the Petitioner to show by clear
and convincing evidence what those interviews would have revealed and how the failure to
conduct interviews prejudiced his case. The Petitioner did not carry his burden. The record
does not preponderate against the trial court’s determination that the Petitioner failed to show
that he received the ineffective assistance of counsel with regard to counsel’s trial
preparation. The Petitioner is not entitled to relief on this issue.
D. Erroneous Advice (Petitioner’s issues III.A. and III.B.)
The Petitioner contends that his plea was based on trial counsel’s erroneous advice
that he would serve only thirty percent of a six-year sentence in confinement. The State
counters that the Petitioner has failed to prove that but for counsel’s alleged failure to inform
him about the consequences of his sentence, he would have proceeded to trial.
The record shows that during the entry of the plea, the court informed the Petitioner
that the Department of Correction governed the release date, that the release date was “an
eligibility date and did not mean that he would be released precisely at that time,” and that
the Petitioner nodded his head to indicate his understanding. The trial court found that
although trial counsel and the Petitioner’s witnesses testified the Petitioner would have to
serve at least thirty percent of his sentence in confinement, no witness testified that the
Petitioner was explicitly told he would be released after that time.
Given the requirement that a sex offender will not be released on parole until it has
been certified to a reasonably medical certainty that he or she poses no likelihood of
committing sexual assaults, a thirty percent release eligibility date for the Petitioner was quite
unlikely. See Clessie T. Jaco, Jr. v. State, No. M2001-02150-CCA-R3-PC, Maury County,
slip op. at 2 (Tenn. Crim. App. Aug. 14, 2002), aff’d, 120 S.W.3d 828 (Tenn. 2003). This
court has viewed as deficient performance an attorney’s giving erroneous advice to a sex
offender about release eligibility. See Alan Dale Bailey v. State, No.
M2001-01018-CCA-R3-PC, Coffee County (Tenn. Crim. App. Feb. 8, 2002), app. dismissed
(Tenn. July 11, 2002). However, an attorney who merely fails to discuss parole eligibility
with his client does not render ineffective assistance. See Wade v. State, 914 S.W.2d 97, 104
(Tenn. Crim. App. 1995); Ricky Rutledge v. State, No. 01C01-9706-CC-0001, Bedford
County, slip op. at 11 (Tenn. Crim. App. July 2, 1998), app. denied (Tenn. Mar. 1,1999).
-24-
In this case, trial counsel first testified that he would have informed the Petitioner
about release eligibility if that information were contained in the statute defining sexual
battery by an authority figure. Counsel next stated he assumed that he reviewed the release
eligibility statutes with the Petitioner but that he could not remember. Counsel testified that
he probably did not tell the Petitioner that sex offenders usually are not released on parole.
In his brief, the Petitioner notes the prosecuting attorney’s statement, “While it is a Range
One standard plea and sentence there are things that the defendant can do that might cause
him to serve more time. I don’t expect that is going to happen...,” supported his belief that
counsel’s advice about the plea offer was correct.
We note that the statute defining sexual battery by an authority figure does not address
release eligibility. See T.C.A. § 39-13-527. In trial counsel’s June 2, 2006 letter to Charles
Nicholson requesting payment, he wrote:
I am also enclosing herein a copy of the Judgment which
was entered on [the Petitioner’s] case with the Court and I have
highlighted the portion which directly addresses his release
eligibility to be “Standard 30%” which means after he has
served 30% of his sentence. I understand there may be
conflicting stories coming from someone at the prison but this
copy should confirm what agreement was made and entered
with the Court.
The testimony regarding what happened during the plea negotiations was in dispute.
Counsel testified that he recommended the Petitioner accept a reduced sentence that would
keep the Petitioner off the sex offender registry if the State offered it. He said he
recommended this because he did not feel that the Petitioner would make a good witness.
However, counsel said that he never told the Petitioner that the Petitioner would receive a
twelve-year sentence if he did not accept the plea. The Petitioner and his family members,
who were present at various times during the plea negotiations, all testified that the plea offer
was the Petitioner’s only alternative to a twelve-year sentence in confinement. The Petitioner
and his witnesses also agreed that the Petitioner was told he would be released after thirty
percent service. The Petitioner stated that if he had known that in practice, sex offenders
were not released on parole, he would not have pled guilty and would have insisted on
proceeding to trial. He said, without objection, that following a parole hearing, the parole
board told him to “take it to the door,” meaning that he would have to serve his entire
sentence in confinement.
We conclude that the evidence preponderates against the trial court’s findings that the
Petitioner did not establish the allegations of fact by clear and convincing evidence. In our
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view, the record reflects that trial counsel erroneously informed the Petitioner that he would
be released after serving thirty percent of his sentence, when the Petitioner’s chance of being
released was highly unlikely. Four witnesses testified that the Petitioner was told by trial
counsel that he would have to serve only thirty percent of six years. Counsel acknowledged
that he “probably did not” inform the Petitioner that sex offenders are not usually released
on parole. The State’s prosecuting attorney stated at the plea hearing that the State did not
believe the Petitioner would do anything to affect his thirty percent release eligibility. After
the Petitioner was incarcerated, counsel sent a letter to the Petitioner’s brother stating that
the Petitioner would be released after thirty percent service. Finally, the Petitioner stated that
he would not have pled nolo contendere had he known he would have to serve the full
sentence. Taken together, these facts support the determination that the Petitioner was
erroneously informed that he would have to serve only thirty percent of his sentence in
confinement. We conclude that the trial court erred in finding that counsel’s performance
was not deficient and that the Petitioner was not prejudiced by counsel’s deficient
performance. We hold that the Petitioner received the ineffective assistance of counsel, and
the Petitioner is entitled to relief on this issue.
E. Setting Aside the Plea (Petitioner’s Issue III.C.)
The Petitioner contends that he received the ineffective assistance of counsel when
trial counsel failed to seek to set aside his nolo contendere plea within thirty days. The
Petitioner did not raise this issue as grounds for relief in his original or amended petitions for
post-conviction relief. The State has not addressed this issue.
A party may not raise an issue for the first time on appeal, and issues not addressed
in the post-conviction court will not be addressed on appeal. Walsh v. State, 166 S.W.3d
641, 645 (Tenn. 2005); State v. Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim. App. 1994).
“There is a rebuttable presumption that a ground for relief not raised before a court of
competent jurisdiction in which the ground could have been presented is waived.” T.C.A.
§ 40-30-110(f) (2006). The Petitioner has waived this issue.
F. Involuntary Plea (Petitioner’s Issue II.A., II.B.)
The Petitioner contends that his plea was not voluntarily, knowingly, and
understandingly entered because he received the ineffective assistance of counsel in that trial
counsel failed to explain the nature and elements of the indicted charge and of the offense
to which he pled nolo contendere. The Petitioner also contends that his decision to plead
guilty was not a tactical one. The State contends that based on the totality of the
circumstances, the Petitioner entered a knowing and voluntary plea of nolo contendere to
sexual battery by an authority figure.
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A plea of nolo contendere must be voluntarily, knowingly, and understandingly
entered, and it has the same effect as a guilty plea. Crowe, 168 S.W.3d at 747; State v.
Teague, 772 S.W.2d 932, 943-44 (Tenn. Crim. App. 1988). This requires that
before accepting a . . . nolo contendere plea, the court shall
address the defendant personally in open court and inform the
defendant of, and determine that he or she understands the
following:
(A) the nature of the charge to which the plea is
offered;
(B) the maximum possible penalty and any
mandatory minimum penalty;
....
(D) the right to plead not guilty or, having already
so pleaded, to persist in that plea;
(E) the right to a jury trial;
....
Tenn. R. Crim. P. 11(b)(1); see also Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); State
v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003).
A defendant who pleads nolo contendere “effectively consents to being punished as
if he were guilty.” Crowe, 168 S.W.3d at 747 (citing North Carolina v. Alford, 400 U.S. 25,
35-36 n.8 (1970)). In Alford, the Court stated that when evaluating the knowing and
voluntary nature of a guilty plea, “The standard was and remains whether the plea represents
a voluntary and intelligent choice among the alternative courses of action open to the
petitioner.” 400 U.S. at 31 (1970). The court reviewing the voluntariness of a guilty plea
must look to the totality of the circumstances. See State v. Turner, 919 S.W.2d 346, 353
(Tenn. Crim. App. 1995). The circumstances include
the relative intelligence of the defendant; the degree of his
familiarity with criminal proceedings; whether he was
represented by competent counsel and had the opportunity to
confer with counsel about the options available to him; the
extent of advice from counsel and the court concerning the
charges against him; and the reasons for his decision to plead
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guilty, including a desire to avoid a greater penalty that might
result from a jury trial.
Powers v. State, 942 S.W.2d 551, 556 (quoting Blankenship v. State, 858 S.W.2d 897, 904
(Tenn. 1993)). A plea resulting from ignorance, misunderstanding, coercion, inducement,
or threats is not “voluntary.” Blankenship, 858 S.W.2d at 904. If a defendant has not been
made aware of the key consequences of a plea, it cannot be an “‘intentional abandonment of
a known right.’” Mellon, 118 S.W.3d at 345 (quoting State v. Mackey, 533 S.W.2d 337, 340
(Tenn. 1977)).
At the plea hearing, the prosecutor summarized the proof:
Your Honor, at a trial of this matter the State’s proof would
show thru [sic] the witnesses listed on the indictment that
between or during the month of May 2003, or at least the time
preceding the finding and returning of the indictment that [the
Petitioner] was a resident of Loudon County, Tennessee and that
his family were close friends with [J.B.’s] family. That they
often baby-sit with each other[’]s children in each other[’]s
homes. And that the witness would testify that [the Petitioner]
had an unlawful sexual contact with the victim alleged in the
indictment at a time when this child was in the age frame listed
by indictment.
The indictment charged the Petitioner with aggravated sexual battery and stated that the
Petitioner did “unlawfully, intentionally, and knowingly engage in sexual contact with” the
victim, who was “less than thirteen (13) years of age . . . .”
After the recitation of the State’s proof, the following exchange occurred:
THE COURT: Do you agree that that is what the
State’s proof would show?
[THE PETITIONER]: Yes, sir.
THE COURT: A lright. What is your
recommendation?
[THE STATE]: Your Honor, the State has agreed
upon [the Petitioner’s] entering a
Nolo Contendere plea to sexual
battery by an authority figure.
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To recommend to the Court
a sentence of six years, Range One
Standard, Class “C” . . . the
Department of Corrections of
course would be the agency
governing his released date by
... parole and so forth.
THE COURT: Is that the way you understand the
agreement?
[THE PETITIONER]: (nods yes to understanding)
Following the post-conviction hearing, the trial court found that the Petitioner’s
decision to plead nolo contendere was a tactical one and that
even if the Petitioner did not have a clear understanding as to
each and every element of each and every offense that might be
involved in the case, a more complete understanding by him of
the specific elements of any of the possibly involved offenses
would not have resulted in a different decision by him or a
different result. In any event, the Court does not find that he has
established this ground by clear and convincing proof nor that
he was so prejudiced by not understanding the elements of each
and every such offense. This ground is without merit.
Although not raised by either party, we note that the trial court applied an incorrect
standard. Our supreme court has recently clarified the correct standard for evaluating a post-
conviction claim of ineffective assistance of counsel. See Dellinger v. State, 279 S.W.3d
282, 293-94 (Tenn. 2009); see also Tenn. Sup. Ct. R. 28 § 8(D)(1) (amended 2009). The
petitioner must first “prove the fact of counsel’s alleged error by clear and convincing
evidence.” Dellinger, 279 S.W.3d at 294. Clear and convincing evidence is evidence which
leaves “no serious or substantial doubts about the correctness of the conclusions . . . .” Hicks
v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). If the petitioner meets his or her
burden, the trial court must apply the Strickland analysis and determine whether counsel’s
error “‘fell below an objective standard of reasonableness,’ and whether the error raised ‘a
reasonable probability . . . that the result of the proceedings would have been different.’” Id.
(quoting Strickland, 466 U.S. at 687-88, 694).
Under the standard expressed in Dellinger, the Petitioner was required to prove by
clear and convincing evidence that trial counsel erred when trial counsel did not inform him
of the nature and elements of the charges against him or the charge to which he pled. If the
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Petitioner established this fact by clear and convincing evidence, the trial court was then
required to apply the Strickland analysis. The court stated it found that the Petitioner did not
establish by clear and convincing evidence that a more complete understanding of the
specific elements of the charges would have resulted in a different plea or that the Petitioner
was prejudiced by not understanding all the elements. The court did not determine whether
the Petitioner had established counsel’s error and, if so, whether that error was deficient and
prejudiced the Petitioner.
Although the trial court applied an erroneous standard when evaluating whether the
Petitioner received the ineffective assistance of counsel regarding the entry of his plea, we
cannot conclude that the error “more probably than not affected the judgment” or resulted
“in prejudice to the judicial process.” T.R.A.P. 36(b). Notwithstanding the Petitioner’s
several meetings with trial counsel, the record reflects that the Petitioner was indicted for
aggravated sexual battery and that the indictment cited the Code section that the Petitioner
had been charged as violating. In addition, the waiver of jury trial form that the Petitioner
signed listed the offense charged and stated the possible minimum and maximum
punishments, including that the Petitioner would have to serve one hundred percent of his
sentence if convicted. The waiver form also listed the offense to which the Petitioner pled
nolo contendere, the applicable range of punishment, and the recommended sentence of six
years as a Range I, standard offender. The Petitioner testified that he researched the elements
of the offense charged. The record establishes that the Petitioner was aware of the nature and
elements of the indicted offense and the offense to which he pled nolo contendere. The
Petitioner is not entitled to relief on this issue.
Finally, the Petitioner contends that the trial court erred when it determined that he
made a tactical decision to enter a plea of nolo contendere. The Petitioner faced a minimum
sentence of eight years at one hundred percent service if he had proceeded to trial. The
sentence to which he pled carried a less severe punishment. The evidence does not
preponderate against the trial court’s determination that the Petitioner made a tactical
decision to plead to the offense with a lesser punishment.
CONCLUSION
In consideration of the foregoing and the record as a whole, we reverse the judgment
of the trial court, we vacate the Petitioner’s conviction, and we remand the case for further
proceedings consistent with this opinion.
___________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE
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