Samuel O. McAlister v. State of Tennessee ( 2021 )

09/29/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 7, 2021
SAMUEL O. MCALISTER v. STATE OF TENNESSEE
Appeal from the Circuit Court for Madison County
No. C-20-241 Donald H. Allen, Judge
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No. W2021-00045-CCA-R3-PC
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The Petitioner, Samuel O. McAlister, appeals the Madison County Circuit Court’s denial
of his post-conviction petition, seeking relief from his pleas to possession of a firearm by
a convicted felon, possession of marijuana, possession of drug paraphernalia, driving on a
revoked license, violating the financial responsibility law, and failing to illuminate his
license plate and resulting effective five-year sentence. On appeal, the Petitioner contends
that he received the ineffective assistance of counsel, which resulted in his pleas being
unknowing and involuntary. Based upon the record and the parties’ briefs, we affirm the
judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and JILL BARTEE AYERS, JJ., joined.
Joseph T. Howell, Jackson, Tennessee, for the appellant, Samuel O. McAlister.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Jody S. Pickens, District Attorney General; and Alfred Lynn Earls,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
On January 28, 2019, the Petitioner pled guilty in case number 18-501 to possession
of a firearm by a convicted felon, a Class C felony; possession of marijuana, Class A
misdemeanor; and possession of drug paraphernalia, a Class A misdemeanor.1 The
1
This court may take judicial notice of the record presented on direct appeal of the Petitioner’s
convictions, and we choose to do so in this case. See State v. Lawson, 291 S.W.3d 864, 869 (Tenn. 2009).
Petitioner also entered “best interest” pleas in case number 18-956 to driving on a revoked
license, fifth offense, a Class A misdemeanor; violating the financial responsibility law, a
Class C misdemeanor; and failing to illuminate his license plate, a Class C misdemeanor.
At the plea hearing, the State gave the following factual account of the crimes:
The State would show at trial [that] on January 30th of 2018, Investigators
Shoate and Tanner with Metro Narcotics Unit did come into contact with Mr.
Samuel McAlister, the defendant in this matter, at a convenience store and
parking lot located at 1321 East Chester Street which is here in Jackson,
Madison County, Tennessee. During the encounter, Investigator Shoate
asked for identification. During the encounter, Investigator Shoate did notice
an odor of marijuana coming from Mr. McAlister’s person. He was detained
and a search of Mr. McAlister’s person revealed a small amount of marijuana
which was sent to the TBI for testing and came back positive at 3.29 grams.
Also during the search of his person, officers recovered a Taurus 380 caliber
handgun loaded with six rounds. At the time of his arrest, Mr. McAlister did
have a prior felony conviction for possession of cocaine with intent to sell or
deliver under Docket No. 05-493 from Madison County from back on
November 21st of 2005. That would be the -- also during a search of his
person, there was recovered a small marijuana grinder that had suspected
marijuana residue on it. That would be the State’s proof under Docket No.
18-501.
....
[In case number 18-956, the] State would show at trial that on or about
August 19 of 2018, Officer Preslar, then with the Jackson Police Department,
initiated a traffic stop on Mr. McAlister in the area of Laconte Street here in
Jackson -- Laconte and Jackson Street here in Jackson, Madison County,
Tennessee for improper lights. During that traffic stop, Mr. McAlister was
found to be the driver. I believe his tag light was out. He was unable to
provide proof of insurance at that time and upon a search of his driving
history it was found that he did have prior convictions for driving on a
suspended license. His license was suspended at that time and he had prior
convictions from Madison County General Sessions Court on February 9th
of 2017 and January 11th of 2017. Out of Jackson City Court on November
16th of 2011 and September 22nd of 2009.
During the plea hearing, trial counsel for the Petitioner reminded the trial court of
the following: The Petitioner filed a motion to suppress in case number 18-501, arguing
that the police unlawfully detained him and that he did not consent to a search of his person.
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The trial court found that the odor of marijuana provided the officer with reasonable
suspicion for the stop and that the Petitioner consented to the search. Therefore, the trial
court denied the motion to suppress.
At the conclusion of the plea hearing, the trial court accepted the Petitioner’s pleas.
Pursuant to the plea agreement, the Petitioner received an effective five-year sentence with
the trial court to determine the manner of service of the sentence. The trial court held a
sentencing hearing and ordered that the Petitioner serve the effective five-year sentence in
confinement.
On direct appeal of his convictions, the Petitioner claimed only that the trial court
erred by denying his request for alternative sentencing. State v. Samuel McAlister, No.
W2019-00660-CCA-R3-CD, 2020 WL 3409914, at *1 (Tenn. Crim. App. at Jackson, June
19, 2020). This court affirmed the judgments of the trial court. Id. at *4.
On September 1, 2020, the Petitioner filed a pro se petition for post-conviction
relief, claiming that he received the ineffective assistance of counsel because trial counsel
failed to reserve a certified question of law concerning the motion to suppress and advised
the Petitioner to plead guilty without protecting his right to reserve a certified question of
law. The Petitioner also argued that as a result of trial counsel’s ineffective assistance, his
guilty pleas were not knowing and voluntary. The post-conviction court appointed counsel,
and post-conviction counsel did not file an amended petition.
At the evidentiary hearing, the Petitioner acknowledged that trial counsel worked
for the public defender’s office and was appointed to represent him in case numbers 18-
501 and 18-956. The Petitioner said that he and trial counsel discussed the cases
“[s]omewhat” and that trial counsel filed a motion to suppress in case number 18-501. The
motion requested that the trial court suppress the gun and drug evidence found on the
Appellant’s person based on an illegal search and seizure. The trial court held a
suppression hearing, and Investigator Shoate and the Petitioner testified. The Petitioner
stated that during hearing, Investigator Shoate claimed the Petitioner gave consent for the
search, which was not true. Nevertheless, the trial court found that the Petitioner gave
consent and denied the motion. As a result of the denial, the Petitioner entered his pleas.
The trial court held a sentencing hearing and ordered that the Petitioner serve his sentences
in confinement.
The Petitioner testified that trial counsel filed a direct appeal of the convictions but
that trial counsel only appealed the denial of alternative sentencing. Trial counsel did not
inform the Petitioner about reserving a certified question of law, but the Petitioner “was
under the impression the whole thing was getting appealed.” The Petitioner acknowledged
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that he wanted trial counsel to appeal the denial of his motion to suppress via a certified
question of law.
On cross-examination, the Petitioner acknowledged that the trial court fully advised
him of his rights at the plea hearing. He also acknowledged that his only complaint was
that trial counsel did not reserve a certified question of law regarding the motion to
suppress.
Trial counsel testified for the State that he had been a public defender for fifteen
years and that the trial court appointed him to represent the Petitioner. Trial counsel
obtained discovery, discussed the discovery materials with the Petitioner, and filed a
motion to suppress on the basis of an illegal seizure and lack of probable cause. At the
evidentiary hearing, the police officer testified that the Petitioner gave consent for the
search, and the Petitioner testified that he did not give consent. The trial court accredited
the officer’s testimony and denied the motion.
Trial counsel testified that he did not appeal the trial court’s denial of the motion to
suppress because this court had said the trial court was in the best position to judge the
credibility of the witnesses. Therefore, trial counsel concluded that appealing the trial
court’s denial of the motion to suppress would not have been successful. After the trial
court denied the motion to suppress, the Petitioner entered an agreement with the State to
plead guilty in exchange for an effective five-year sentence. The trial court was to
determine the manner of service of the sentence, and trial counsel “put forward” an
argument for alternative sentencing at the sentencing hearing. After the trial court
sentenced the Petitioner to confinement, trial counsel appealed the sentence. Trial counsel
reiterated that in his opinion, a certified question of law regarding the motion to suppress
would not have been successful.
On cross-examination, trial counsel testified that he and the Petitioner did not
discuss reserving a certified question of law. Trial counsel stated, “We just discussed the
actual sentence and then after he got sentenced to serve it, it was to appeal the sentence.”
On January 5, 2021, the post-conviction court entered an order denying the petition
for post-conviction relief. In its order, the post-conviction court specifically incorporated
and attached a letter sent to the State and post-conviction counsel setting out its findings of
fact and conclusions of law.2 In the letter, the post-conviction court stated that at the plea
2
The letter was dated December 28, 2019, and did not bear a file-stamp date. According to
Tennessee Code Annotated section 40-30-111(b), a post-conviction court “shall enter a final order, and . .
. shall set forth in the order or a written memorandum of the case all grounds presented, and shall state the
findings of fact and conclusions of law with regard to each ground.” Therefore, on September 1, 2021, this
court remanded the case to the trial court clerk for the limited purpose of “file-stamping the post-conviction
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hearing, the Petitioner indicated that he was satisfied with trial counsel’s representation
and that he fully understood everything he was doing by entering his guilty pleas. The
Petitioner admitted during the plea hearing that he committed the crimes and said that he
had not been forced, pressured, or threatened to plead guilty. Thus, the post-conviction
court found that the Petitioner entered his pleas knowingly, intelligently, and voluntarily.
As to the Petitioner’s claim of ineffective assistance of counsel, the post-conviction court
accredited trial counsel’s testimony that the Petitioner understood what he was doing and
wanted to accept the State’s five-year offer with the trial court to determine the manner of
service of the sentence. The post-conviction court noted that the Petitioner’s only
complaint was that trial counsel should have appealed the trial court’s denial of the motion
to suppress. However, the post-conviction court found that trial counsel did not render
deficient performance in that regard. Accordingly, the post-conviction court denied the
petition.
II. Analysis
To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d
572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled
to substantial deference on appeal unless the evidence preponderates against those findings.
See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s conclusions
of law purely de novo. Id.When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
court’s correspondence containing the findings of fact and conclusions of law concerning the denial of post-
conviction relief.” The trial court clerk supplemented the record with a file-stamped copy of the letter on
September 8, 2021.
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deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To
establish deficient performance, the petitioner must show that counsel’s performance was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Further,
[b]ecause a petitioner must establish both prongs of the test, a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the
ineffective assistance claim. Indeed, a court need not address the
components in any particular order or even address both if the [petitioner]
makes an insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). Moreover, in the context of
a guilty plea, “the petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s
errors, he would not have pleaded guilty but would have insisted upon going to trial.”
Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart,
474 U.S. 52, 59 (1985).
When a defendant enters a plea of guilty, certain constitutional rights are waived,
including the privilege against self-incrimination, the right to confront witnesses, and the
right to a trial by jury. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Therefore, in order
to comply with constitutional requirements a guilty plea must be a “voluntary and
intelligent choice among the alternative courses of action open to the defendant.” North
Carolina v. Alford, 400 U.S. 25, 31 (1970). In order to ensure that a defendant understands
the constitutional rights being relinquished, the trial court must advise the defendant of the
consequences of a guilty plea, and determine whether the defendant understands those
consequences. Boykin, 395 U.S. at 244.
In determining whether the petitioner’s guilty pleas were knowing and voluntary,
this court looks to the following factors:
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 guilty, including a
desire to avoid a greater penalty that might result from a jury trial.
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Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).
Turning to the instant case, the State argues that the Petitioner has waived his claims
that trial counsel was ineffective for failing to preserve the denial of his motion to suppress
for appellate review and that his guilty pleas were unknowing and involuntary because the
Petitioner has failed to include the transcripts of the suppression and plea hearings in the
post-conviction record.3 As noted earlier in this opinion, though, we have taken judicial
notice of the record on direct appeal of the Petitioner’s convictions. However, that record
does not include the suppression hearing transcript. Accordingly, we agree with the State
that the Petitioner has waived his claim that trial counsel was deficient for failing to
preserve the denial of his motion to suppress. See Tenn. R. App. P. 24(b) (providing that
it is the appellant’s duty to prepare a fair, accurate, and complete record on appeal to enable
this court to conduct a meaningful review).
In any event, even with the suppression hearing transcript, we would conclude that
the Petitioner is not entitled to relief. According to the Petitioner, he and Investigator
Shoate were the only witnesses who testified at the suppression hearing. Trial counsel
testified at the evidentiary hearing that he did not think the issue would have been
successful on appeal because the trial court accredited the police officer’s testimony that
the Petitioner consented to the search. As trial counsel noted, this court has repeatedly
stated that in reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of
fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.”
Id. The Petitioner has failed to provide any explanation for why the trial court erred by
denying his motion to suppress. Accordingly, we agree with trial counsel that the issue
would not have been successful on appeal. Therefore, the Petitioner has failed to show he
was prejudiced by trial counsel’s failure to preserve the issue via a certified question of
law.
As to the State’s claim that the Petitioner has waived whether his pleas were
knowing and voluntary, the post-conviction court stated at the conclusion of the evidentiary
hearing that it was going to review “all of these materials and the opinion and the court
file.” The direct appeal record includes the plea hearing transcript. Therefore, we will
address the issue.
3
Before the Petitioner’s evidentiary hearing, the post-conviction court ordered that copies of the
of the plea and sentencing hearings be transcribed for the Petitioner and the State. A copy of the sentencing
hearing transcript is in the technical record. However, even after the State noted in its brief that the plea
and suppression hearing transcripts were not in the post-conviction record, the Petitioner inexplicably failed
to supplement the record with those transcripts. See Tenn. R. App. P. 24(e), (g).
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The post-conviction court found that at the plea hearing, the Petitioner indicated
under oath that he was satisfied with trial counsel’s representation, that he understood what
he was doing by entering his pleas, and that no force, pressure, or threats had caused him
to plead guilty. The post-conviction court also found that nothing suggested the Petitioner
wanted to go to trial in either of his cases. Our review of the plea hearing transcript
confirms that the trial court questioned the Petitioner extensively concerning the knowing
and voluntary nature of his pleas and whether he was satisfied with trial counsel’s
representation.
Moreover, the record demonstrates that the Petitioner was thirty-nine years old at
the time of the plea hearing and that he had prior convictions. During the hearing, the trial
court asked if the Petitioner understood that he could appeal his sentences but not his
convictions, and the Petitioner said yes. The Petitioner told the trial court that trial counsel
had discussed possible defenses with him, and the trial court asked if the Petitioner wanted
to address any issues about trial counsel. The Petitioner said no. The trial court also asked
if the Petitioner was taking any drugs or medication that might impair his judgment, and
the Petitioner again said no. During the post-conviction evidentiary hearing, trial counsel
testified that the Petitioner understood what he was doing when he pled guilty, and the
post-conviction court accredited trial counsel’s testimony. Had the Petitioner not pled
guilty, he was facing trials in two cases, the most serious of which involved a Class C
felony with a potential punishment of six years in confinement. See Tenn. Code Ann. §
40-35-112(a)(3). Instead, the Petitioner entered his pleas in exchange for a total effective
sentence of five years in confinement with the trial court to determine the manner of
service. Furthermore, as noted in the State’s brief, nothing indicates that the State would
have consented to preserving a certified question of law as part of the Appellant’s plea
agreement. See Tenn. R. Crim. P. 37(b)(2)(A). Accordingly, we conclude that the
Petitioner has failed to show that he did not plead guilty knowingly and voluntarily.
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.
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NORMA MCGEE OGLE, JUDGE
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