Yangreek Tut Wal v. State of Tennessee ( 2021 )

07/12/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 24, 2021
YANGREEK TUT WAL v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2012-C-1981 Cheryl A. Blackburn, Judge
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No. M2020-00646-CCA-R3-PC
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The Petitioner, Yangreek Tut Wal, appeals the Davidson County Criminal Court’s denial
of his post-conviction petition, seeking relief from his guilty pleas to two counts of
especially aggravated kidnapping and two counts of especially aggravated robbery and
resulting effective sentence of forty years to be served at one hundred percent. On appeal,
the Petitioner contends that he received the ineffective assistance of counsel, which resulted
in his guilty 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 Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY THOMAS,
JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
C. LeAnn Smith, Nashville, Tennessee, for the appellant, Yangreek Tut Wal.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Glenn Funk, District Attorney General; and Megan King and Doug
Thurman, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In July 2012, the Davidson County Grand Jury indicted the Petitioner; his brother,
Duol Tut Wal; and his cousin, Tut Tut; for the especially aggravated kidnapping of P.T.,
the especially aggravated kidnapping of R.W., the especially aggravated robbery of P.T.,
the especially aggravated robbery of R.W., two counts of aggravated rape of P.T.,1 and two
1
It is the policy of this court to refer to victims of sexual crimes by their initials.
counts of aggravated rape of R.W., all Class A felonies.2 In November 2013, the grand
jury returned an eight-count indictment charging the Petitioner’s cousin, Peterpal Tutlam,
with the same offenses.3
The police arrested Duol Wal and Tut Tut on March 19, 2012, two days after the
crimes, but the Petitioner and Tutlam fled Tennessee. In July 2012, the Petitioner was
arrested in Nebraska. On April 12, 2013, he pled guilty to two counts of especially
aggravated kidnapping and two counts of especially aggravated robbery. Pursuant to his
plea agreement, the trial court was to determine the length and manner of service of the
sentences. However, the agreement provided that if the Petitioner testified truthfully at the
trials of Tut Tut and Tutlam, who was still on the run, the State would recommend
concurrent sentencing to the trial court. In exchange for the Petitioner’s guilty pleas, the
State dismissed the aggravated rape charges.
At the Petitioner’s guilty plea hearing, Assistant District Attorney General Bret
Gunn announced that the Petitioner was pleading guilty to two counts of especially
aggravated kidnapping and two counts of especially aggravated robbery and requested that
the trial court “hold the sentencing hearing in abeyance” until the trials of Tut Tut and
Tutlam. General Gunn advised the trial court, “If he does what we want him to do in any
of the remaining trials, with the exception of his brother’s trial, then the State will
recommend at the sentencing hearing that these counts run concurrent.” General Gunn
stated that the recommendation for concurrent sentencing “is in my discretion as to whether
to make it according to how he’s done and how he’s testified and participated” and
acknowledged that regardless of the recommendation, the ultimate decision regarding
concurrent or consecutive sentencing would be left to the trial court.
The trial court questioned the Petitioner, noting that he was “set to go to trial on
Monday.” The trial court informed the Petitioner that his range of punishment for
especially aggravated kidnapping and especially aggravated robbery was fifteen to twenty-
five years, that the trial court would hold a sentencing hearing to determine “whether or
not they’re going to run concurrent with each other or run consecutive to each other,” and
that the Petitioner would have to serve the sentences at one hundred percent. The trial court
2
Tut Tut, who was fifteen years old at the time of the crimes, originally was charged in the
Davidson County Juvenile Court. Tut Mayal Tut v. State, No. M2016-01673-CCA-R3-PC, 2017 WL
3475532, at *1 (Tenn. Crim. App. at Nashville, Aug. 14, 2017). However, that court eventually transferred
his case to the criminal court. Id.3
This court may take judicial notice of its own records. State v. Lawson, 291 S.W.3d 864, 869
(Tenn. 2009). Due to the nature of this case, we have taken judicial notice of this court’s records in State
v. Peterpal T. Tutlam, No. M2016-01659-CCA-R3-CD, 2018 WL 2338206 (Tenn. Crim. App. at Nashville,
May 23, 2018); Tut Mayal Tut, No. M2016-01673-CCA-R3-PC, 2017 WL 3475532; and State v. Yangreek
Tut Wal, No. M2016-01672-CCA-R3-CD, 2017 WL 2875925 (Tenn. Crim. App. at Nashville, July 6,
2017), to assist in our review.
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told the Petitioner that the State’s recommendation for concurrent sentencing “might enter
into this” but that “I’m going to look at the situation and see.” The trial court asked if the
Petitioner was satisfied with trial counsel’s representation, and the Petitioner answered,
“No, not really. . . . It’s like he’s been pressuring me to do stuff like on this case.” The
Petitioner acknowledged that he was dissatisfied with the State’s plea offer and said that
he had wanted trial counsel to “see if I could get the minimum.” The trial court informed
the Petitioner that the plea offer was “up to the State” and asked him, “[T]he fact that [trial
counsel] has not been able to do that, is that affecting your willingness to enter this plea?”
The Petitioner responded, “No, ma’am.” The trial court advised the Petitioner that the
“benefit” of his guilty pleas was that “there are four counts that have been taken off the
table” and that “[t]he State may make a recommendation, they may not.”
The State then gave the following factual account of the crimes:
If this case had gone to trial, the State’s proof would be that on March the
17th of 2012 [the Petitioner] and Mr. Duol Wal and Mr. Tut Tut and Mr.
[Peterpal Tutlam] were together in the early morning hours, and they
accosted the two victims in this case, [R.W.] and [P.T.], outside [R.W.’s]
residence. And they abducted them and forced . . . them to get into a vehicle
at knifepoint. In the vehicle they demanded their property. They demanded
their bank cards and their PIN numbers. They drove to a Regions Bank
where they got an amount of money out of both persons’ accounts. They
also with the knife repeatedly stabbed [R.W.] and [P.T.] in the legs, arms,
and face. They forced [R.W.] and [P.T.] to perform oral sex on each other.
They made them take off their clothes, and they forced them out of the car
naked.
The victims sought help immediately. Police were able to get the
video or still photographs from the ATM. [The Petitioner] was the one that
went to the ATM and got the money. He was able to be identified, which led
to his brother, Duol Wal. The police went to their residence. They found the
car that was used that had quite an amount of blood in it, although, they had
attempted to clean it up. They found items in the trash can that belonged to
the victims that were bloody. They found items in Mr. Duol Wal’s room,
including the knife that was used to stab the men. They found money, they
found property that belonged to the two victims.
[The Petitioner] and Mr. [Peterpal Tutlam] fled the jurisdiction to
Nebraska where [the Petitioner] was arrested there. He was interviewed --
he was caught there and interviewed by the detectives in Nebraska and then
ultimately by Detective Dozier that went out there. He admitted what had
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happened. He named the people that were involved. He maintained that he
was the driver of the vehicle [and] had no role in the sexual part of this case.
All of these events occurred here in Davidson County.
At the conclusion of the hearing, the trial court accepted the Petitioner’s guilty pleas.
That same day, Tut Tut pled guilty to all eight counts. Pursuant to his plea
agreement, he received an effective sentence of thirty years to be served at one hundred
percent. As a result of Tut’s guilty pleas, the Petitioner did not have to testify against him
as required by the Petitioner’s plea agreement. At some point, Duol Wal pled guilty to two
counts of especially aggravated robbery and two counts of especially aggravated
kidnapping and received an effective thirty-year sentence to be served at one hundred
percent. In exchange for Duol Wal’s guilty pleas, the State dismissed the aggravated rape
charges.
In September 2013, law enforcement arrested Tutlam in Minnesota. The State
dismissed two of his aggravated rape charges, and his trial for two counts of especially
aggravated kidnapping, two counts of especially aggravated robbery, and two counts of
aggravated rape began on January 4, 2016. During the trial, numerous witnesses, including
the victims and the Petitioner, testified for the State. This court summarized the
Petitioner’s testimony as follows:
[The Petitioner] testified that he; his brother, Duol Wal; and his cousins, Tut
Tut and [Tutlam], were at a reggae nightclub in the early morning hours of
March 17, 2012. They decided to rob someone and went to an apartment
complex. [The Petitioner], who was driving, waited in the car while his
brother and cousins got out; they returned to the car with the victims.
[Tutlam] sat on the center console beside [the Petitioner], Tut Tut sat in the
passenger seat beside [Tutlam], and Duol Wal sat in the backseat with the
victims. [The Petitioner] testified about driving to the ATMs and using the
victims’ bank cards to withdraw money. He also testified about the four men
beating and stabbing the victims; forcing them to engage in oral sex; and
leaving them, albeit clothed, on “a little street.” Two days after the incident,
[the Petitioner] and [Tutlam] boarded a Greyhound bus and fled to Lincoln,
Nebraska. They stayed together in Nebraska for a month, split up, and went
to different parts of Minnesota.
On cross-examination, [the Petitioner] acknowledged that [Tutlam]
had been drinking alcohol prior to going to the nightclub and that he
continued to consume alcohol at the club. [Tutlam] was very intoxicated and
was stumbling and dragging his feet. [The Petitioner] acknowledged that he
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had not yet been sentenced and that he was hoping for leniency in sentencing.
On redirect examination, [the Petitioner] acknowledged that [Tutlam] helped
shove the victims into the car.
State v. Peterpal T. Tutlam, No. M2016-01659-CCA-R3-CD, 2018 WL 2338206, at *3
(Tenn. Crim. App. at Nashville, May 23, 2018).
At the conclusion of the proof, the jury convicted Tutlam of all six counts. Id. at
*1. The trial court held a sentencing hearing, sentenced him to twenty-five years for each
conviction, and ordered that he serve the sentences consecutively for a total effective
sentence of one hundred fifty years to be served at one hundred percent. Id. On direct
appeal of Tutlam’s convictions, he argued only that his effective sentence was excessive.
Id. This court affirmed the judgments of the trial court. Id.
Two months after Tutlam’s trial, Assistant District Attorneys General Megan King
and Doug Thurman, who had taken over the Petitioner’s case from General Gunn, filed a
motion for consecutive sentencing in the Petitioner’s case, arguing that the Petitioner was
a dangerous offender. In the motion, the State alleged as follows:
After the [Petitioner] was arrested, he attempted to mislead both
Nebraska and Tennessee detectives about who was involved and what
happened. During his interviews with the detectives, he made the following
false assertions:
A. He claimed only three people were involved and did not
name Peterpal Tutlam.
B. He eventually gave the name of the fourth person, Chudier
Timothy, but claimed he did not know any other name for
Chudier Timothy (who was his cousin, Peterpal Tutlam).
C. He first claimed that they were in a gray Impala that
belonged to his cousin Marcus Beas. He later admitted they
were in a black Saturn that was bought by his brother.
D. He first claimed that he and Chudier Timothy stayed in the
car for the initial attack. The proof established that Peterpal
Tutlam participated in the initial attack.
E. He initially told Nebraska detectives that the victims were
only stabbed four or five times in the legs, and no other
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violence occurred. The proof at trial established they were
stabbed at least ten times each and were continuously beaten
throughout the encounter.
F. When first describing the offenses, he did not mention the
aggravated rapes.
G. He stated that the victims were not forced to take their
clothes off on Franklin Limestone Road. The proof established
that multiple voices were heard telling the victims to take their
clothes off. The victims did take their clothing off and were
found nude on Franklin Limestone Road.
H. He claimed that only Tut Tut stomped on the victims at
Franklin Limestone Road. [P.T.] saw the [Petitioner], Peterpal
Tutlam and Tut Tut stomping and kicking [R.W.] while on
Franklin Limestone Road. [P.T.] testified that Duol Wal was
standing near him as this occurred.
I. He told the detectives that they all split the money from the
robbery. At trial, he claimed Peterpal Tutlam did not take a
share of the money.
At the trial of Peterpal Tutlam, the [Petitioner] attempted to assist in Tutlam
minimizing his (Tutlam’s) role in the offenses. He testified as follows:
J. He stated that Tutlam did not beat or stab the victims. In
fact, he testified that Tutlam never turned around while in the
car and interacted with the victims. This contradicted the
testimony of the victims that everyone took turns beating and
stabbing them. They also testified that the person over the
console and [the] person in the passenger seat switched back
and forth during the stabbings and beatings.
K. He claimed that he and Peterpal Tutlam stayed in the
vehicle when the victims were dropped off on Franklin
Limestone Road. This contradicted [P.T.’s] testimony that
three of the defendants were stomping and kicking [R.W.].
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L. He testified that Peterpal Tutlam was drunk during the
commission of the offenses. This was the first time he made
this claim. This contradicted the testimony of the victims.
M. He testified that Peterpal Tutlam did not take any money
from the robbery. This was the first time he made this claim.
He never provided this information to detectives when being
interviewed.
N. He testified that Peterpal Tutlam said, “What y’all did to
the victims was uncalled for.” This was the first time he made
this assertion. He never provided this information to detectives
when being interviewed.
The State submits that the [Petitioner’s] attempts to mislead the police
and continue to mislead the jury at trial about Peterpal Tutlam’s involvement,
as well as his own involvement, and coupled with the severity of the offenses
firmly supports the finding that the [Petitioner] is a dangerous offender.
The trial court sentenced the Petitioner on July 13, 2016, more than three years after
his guilty pleas. During the sentencing hearing, Detective Brandon Dozier of the
Metropolitan Nashville Police Department testified that he was the lead detective in this
case. After the Petitioner was arrested in Nebraska, a Nebraska detective interviewed him.
Detective Dozier then flew to Nebraska and interviewed the Petitioner. Initially, the
Petitioner claimed that only he, Tut Tut, and Duol Wal were involved in the crimes. He
did not mention Tutlam. Eventually, though, the Petitioner named the fourth suspect as
“Chudier Timothy.” Chudier Timothy turned out to be Tutlam. The Petitioner told
Detective Dozier that the car used in the crimes was a gray Impala when it was a black
Saturn. The Petitioner claimed Chudier Timothy was “just in the car” and did not
participate in stabbing or beating the victims. The Petitioner maintained that claim when
he testified at Tutlam’s trial. The Petitioner also claimed at Tutlam’s trial that the
defendants did not order the victims to take off their clothes; that Tutlam did not take any
share of the money obtained from the victims; that the Petitioner told his codefendants the
day after the crimes that “what ya’ll did to the victims was uncalled for”; and that Tutlam
was intoxicated during the crimes. The Petitioner had never told the detectives prior to
Tutlam’s trial that Tutlam was intoxicated.
Detective Dozier testified that when he interviewed the Petitioner, the Petitioner
placed himself at the scene of the crimes but “seemed very limited and he was . . . either
trying to omit information or downplay the facts.” The Petitioner also seemed to be
protecting Tutlam. At the time of the Petitioner’s interview, Tutlam had not been arrested.
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Although the Petitioner claimed that the victims were not forced to take off their clothes,
their clothing was found in the Petitioner’s residence.
On cross-examination, Detective Dozier acknowledged that people knew Tutlam as
“Chudier Timothy.” He also acknowledged that the Petitioner consistently maintained that
that Tutlam did not participate in the violence against the victims. While the Petitioner
was in jail, the Petitioner spoke with Tutlam on the telephone. Their conversations were
recorded, and the Petitioner helped Detective Dozier and General Gunn by translating the
conversations from the Nuer language to English. Detective Dozier said he did not
remember if the translated conversations helped the police locate and arrest Tutlam.
At the conclusion of the Petitioner’s sentencing hearing, the trial court sentenced
him to twenty years for each conviction. The trial court ordered that he serve the twenty-
year sentences for the especially aggravated kidnappings concurrently and that he serve the
twenty-year sentences for the especially aggravated robberies concurrently. However, the
trial court found that the Petitioner was a dangerous offender and ordered that he serve the
two effective twenty-year sentences consecutively for a total effective sentence of forty
years to be served at one hundred percent. On direct appeal of his convictions to this court,
the Petitioner claimed that that the trial court abused its discretion by imposing an effective
forty-year sentence because the sentence was “far in excess” of the sentences imposed on
Duol Wal and Tut Tut and because the trial court erred by finding that he was a dangerous
offender. State v. Yangreek Tut Wal, No. M2016-01672-CCA-R3-CD, 2017 WL 2875925,
at *3 (Tenn. Crim. App. at Nashville, July 6, 2017), perm. app. denied, (Tenn. July 6,
2017). This court concluded that the record “fully support[ed]” the trial court’s sentencing
decisions and affirmed the judgments of the trial court. Id. at *5.
The Petitioner filed a pro se motion for reduction of sentence pursuant to Tennessee
Rule of Criminal Procedure 35, asserting that he should serve his sentences concurrently.
The trial court filed a written order denying the motion, stating as follows: “Based on the
facts underlying the [Petitioner’s] convictions, this court finds the imposition of
consecutive sentencing appropriate in this matter. Any reduction in the [Petitioner’s] 40-
year effective sentence would not be ‘in the interest of justice.’” (Citations omitted.)
After our supreme court denied the Petitioner’s application for permission to appeal,
he filed a timely pro se petition for post-conviction relief, claiming, in pertinent part, that
trial counsel was ineffective for advising and allowing him “to enter an open plea of guilty,
with no specific plea agreement as to the amount [of] time Petitioner would receive in
exchange for his pleas.” The Petitioner asserted that as a result of trial counsel’s deficient
performance, his effective sentence exceeded those of Duol Wal and Tut Tut by ten years
when those two codefendants “were the actual perpetrators of the crime.” The post-
conviction court appointed counsel, and post-conviction counsel filed an amended petition,
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adding that trial counsel also was ineffective for failing to explain to the Petitioner that the
State’s interpretation of his “truthful” testimony would be completely subjective, for failing
to file a motion to withdraw the Petitioner’s guilty pleas when it became clear that the State
was not going to recommend concurrent sentencing, and for failing to address the “down-
right misrepresentation[s]” the State made to the trial court in the State’s argument for
consecutive sentencing. As an example of the State’s misrepresentations to the trial court,
the Petitioner noted that one of the reasons the State gave for consecutive sentencing was
the fact that he named the fourth suspect as “Chudier Timothy” rather than “Peterpal
Tutlam”; however, Tutlam was known as “Chudier Timothy.” The Petitioner also argued
in his amended petition that the State was well-aware of many of the discrepancies between
the Petitioner’s and the victims’ versions of the crimes prior to the Petitioner’s guilty pleas;
therefore, the State should not have used those discrepancies to recommend consecutive
sentencing. The Petitioner requested that the post-conviction court “return [him] to pre-
sentencing status.”
At the evidentiary hearing, trial counsel testified for the Petitioner that he was
licensed to practice law in 2009 and that he was appointed to represent the Petitioner in
August 2012. At that time, General Gunn represented the State. General Gunn knew that
the Petitioner was the driver during the crimes and that the Petitioner took money out of a
victim’s ATM. However, General Gunn did not think the Petitioner was involved in the
physical or sexual violence against the victims. General Gunn thought that “the most
violent actors” were Duol Wal and Tut Tut and offered to let those two defendants plead
guilty in exchange for an effective thirty-year sentence to be served at one hundred percent.
General Gunn told trial counsel that if the Petitioner would testify against Tut Tut and
Tutlam, then General Gunn would give the Petitioner “the opportunity to essentially get
between fifteen and twenty-five years, which was less than the other two were getting.”
General Gunn also would recommend concurrent sentencing. Initially, General Gunn’s
offer to the Petitioner required guilty pleas to all eight counts in the indictment. However,
the Petitioner had “a big problem” with the aggravated rape counts, so trial counsel was
“able to negotiate a flat-out dismissal” of those counts, which “saved” the Petitioner from
having to register as a sex offender. General Gunn also offered the Petitioner a second plea
option: “a flat thirty years” on all the counts, including the aggravated rapes. However,
the Petitioner was not willing to accept that offer. Trial counsel said he did not remember
if he approached the State about allowing the Petitioner to accept the thirty-year offer and
dismissing the aggravated rape charges.
Trial counsel testified that he thought General Gunn met with the Petitioner prior to
the Petitioner’s guilty pleas to explain General Gunn’s “expectations” of the Petitioner.
Nevertheless, the Petitioner’s having to “testify truthfully” was “fairly vague” and “ended
up being a big problem” for the defense. Moreover, Tutlam was still “in the wind” when
the Petitioner pled guilty, so the Petitioner “ended up sitting for pretty much four years
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before they finally caught Tutlam and were able to bring him to trial.” While law
enforcement was looking for Tutlam, General Gunn wanted the Petitioner to speak with
Tutlam and find out where Tutlam might be located. The Petitioner had recorded telephone
conversations with Tutlam and translated those conversation from Nuer to English for
General Gunn. Trial counsel thought the Petitioner “[did] what he could” to help the State
while he was in confinement.
Trial counsel testified that at some point, General Gunn left the district attorney’s
office. Generals King and Thurman were assigned to the Petitioner’s case and met with
the Petitioner in preparation for Tutlam’s trial. They wanted the Petitioner to testify that
Tutlam received money from the robberies and that Tutlam “had been violent at a specific
time in the incident or in a specific way.” The Petitioner told them, though, that Tutlam
did not receive any money. In the State’s view, the Petitioner’s claim contradicted one of
his original statements to detectives. Moreover, the Petitioner “was not describing
[Tutlam’s] involvement in some of the violence in the way that the state wanted him to
describe it.” Trial counsel said the Petitioner “always maintained that what he said is the
truth based on his recollection.” However, the Petitioner’s failure to testify as the State
wanted “absolutely tanked his case for him.” Trial counsel said the Petitioner’s
contradictions were “always a matter of interpretation.”
Trial counsel testified that “a fatal flaw” of the plea agreement was that it did not
specify what would happen if law enforcement never caught Tutlam or what would happen
if Tutlam pled guilty. Potentially, the Petitioner “could have sat in jail for decades without
ever having a sentencing hearing.” Additionally, “the recommendation for concurrent
versus consecutive sentencing was entirely subjective, because we never established by
proffer or anything else what was going to be the baseline for his testimony.” As a result,
trial counsel’s and the Petitioner’s “understanding of how this plea was going to work was
misguided or flawed from the get-go.”
Trial counsel testified that the Petitioner’s “best chance” for a sentence of less than
thirty years was to cooperate with the State and obtain a recommendation for concurrent
sentencing from General Gunn. Trial counsel said, though, “What I failed to probably
advise [the Petitioner] and what I probably failed to consider myself is that the
recommendation, you know, even the assessment of truthfulness was 100 percent
subjective, and that probably the likelihood of ever getting that kind of concurrent
sentencing was nonexistent.” Trial counsel never told the Petitioner that he would receive
a sentence of fifteen or twenty years but “likely said this was his best chance to get
something less than twenty-five.” Trial counsel said that during the Petitioner’s first
meeting with General King and General Thurman, “it was clear that [the Petitioner] was
not testifying to the facts as Ms. King and Mr. Thurman understood them.” The State filed
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a motion for consecutive sentencing, but trial counsel never considered filing a motion to
set aside the Petitioner’s guilty pleas.
Trial counsel testified that he did not remember telling the Petitioner that the trial
court could reject the State’s recommendation for concurrent sentencing but that the trial
court advised the Petitioner of that fact during the plea hearing. The State relied on “one
or two minor facts” to say that it was absolved from any contractual obligation to
recommend concurrent sentencing. For example, the Petitioner knew Tutlam as “Chudier
Timothy,” so trial counsel did not understand the State’s claim that the Petitioner was
dishonest about Tutlam’s name. Trial counsel said that he did not remember if he clarified
the name discrepancy to the trial court at sentencing but that “I definitely should have if I
didn’t.” The State also relied on discrepancies between the Petitioner’s statements to the
Nebraska detective and his statements to Detective Dozier, but those discrepancies would
have been evident to the State prior to the Petitioner’s plea offer and plea hearing. The
Petitioner initially told Nebraska detectives that the car used during the crimes was a gray
Impala but eventually said the car was a black Saturn. Again, the State would have been
aware of that discrepancy prior to the Petitioner’s plea offer and plea hearing. Trial counsel
said that the Petitioner’s “impression and timeline of the actual sequence of events was
different from the victims.” The State considered the victims’ versions of the crimes to be
the truth, and anything the Petitioner said that contradicted the victims was “taken as a lie
or an intent to deceive.” Most of the discrepancies listed in the State’s motion for
consecutive sentencing would have been evident to the State prior to the Petitioner’s plea
offer and plea hearing. Therefore, the State should not have used those discrepancies as an
excuse not to recommend concurrent sentencing. Trial counsel did not point out to the trial
court at sentencing that the discrepancies existed prior to the Petitioner’s guilty pleas.
Trial counsel testified that another problem for the Petitioner was that he told
detectives that all four of the defendants “split” the money they obtained from the victims.
While preparing for Tutlam’s trial, though, the Petitioner claimed that Tutlam “didn’t take
his share of the money.” Trial counsel said that that discrepancy was the “linchpin” of the
State’s decision not to recommend concurrent sentencing. Trial counsel acknowledged
that according to a transcript of the Petitioner’s interview with Nebraska detectives, the
Petitioner told them that “we all split the money.” However, at that time, the Petitioner
had not told the detectives that Chudier Timothy was involved in the crimes. Trial counsel
said that during his representation of the Petitioner, the Petitioner maintained “100 percent”
that Tutlam never received any money from the robberies.
Trial counsel testified that in hindsight, the Petitioner’s plea agreement was never
going to “work out” because the Petitioner either had to lie at Tutlam’s trial and say what
the State wanted him to say or tell the truth and not get the State’s recommendation for
concurrent sentencing. Trial counsel testified that the Petitioner cooperated with the State
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and testified truthfully. From the State’s perspective, though, the Petitioner “didn’t testify
about their version of the truth.”
On cross-examination, trial counsel testified that in April 2013, eighty to ninety
percent of his practice involved criminal law. Trial counsel met with the Petitioner out of
court and when the Petitioner appeared in court. They discussed the charges and possible
defenses, reviewed discovery, discussed the possible punishments if convicted, and
reviewed the plea agreement. Trial counsel acknowledged that he had the Petitioner initial
every “point” in the agreement and explained every point to him, including that the trial
court could order consecutive sentencing. The Petitioner decided to accept the State’s plea
offer.
Trial counsel testified that General Gunn never met with the Petitioner to discuss
the Petitioner’s testimony at Tutlam’s upcoming trial. When General Thurman and
General King took over the case, they told trial counsel that if they thought the Petitioner
testified truthfully at Tutlam’s upcoming trial, they would recommend concurrent
sentencing. General Thurman and General King met with trial counsel and the Petitioner
two or three times to discuss the Petitioner’s proposed testimony. During one of those
meetings, they told trial counsel that they did not think the Petitioner was being truthful
because the Petitioner’s version of events differed from the victims’ versions. Trial counsel
acknowledged that the Petitioner had told Detective Dozier that the defendants obtained
$1,200 from the victims, that the Petitioner kept $300, and that the defendants “split the
money.” However, the Petitioner testified at Tutlam’s trial that Tutlam refused to accept
Tutlam’s share of the money. General King confronted the Petitioner about that
inconsistency, and the Petitioner admitted changing his story. The Petitioner claimed for
the first time at Tutlam’s trial that Tutlam was “drunk” on the night of the crimes. The
Petitioner also testified that he never saw Tutlam do anything to the victims and that the
Petitioner did not get out of the Saturn when the defendants released the victims, which
contradicted the victims’ testimony.
Trial counsel acknowledged that at the Petitioner’s sentencing hearing, he presented
letters and certificates on the Petitioner’s behalf, cross-examined Detective Dozier about
the Petitioner’s “inconsistencies,” and called a witness to testify for the Petitioner. The
trial court sentenced Tutlam to an effective sentence of one hundred fifty years to be served
at one hundred percent but sentenced the Petitioner to an effective sentence of forty years
to be served at one hundred percent. On redirect-examination, trial counsel acknowledged
that he should have responded to some of the “inconsistencies” raised by the State at the
sentencing hearing.
The Petitioner testified that he cooperated with law enforcement in this case. He
took responsibility for the crimes, translated his conversations with Tutlam for the State,
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testified against Tutlam at Tutlam’s trial, and did everything the State asked of him. He
acknowledged that he tried to testify at Tutlam’s trial consistently with his statements to
the Nebraska and the Nashville detectives. When the Petitioner testified at trial that Tutlam
did not take any money from the robberies, the Petitioner’s testimony was consistent with
his statements to the detectives.
The Petitioner testified that when he entered into the plea agreement with the State,
he thought that he was going to receive a sentence of fifteen to twenty-five years in
exchange for his truthful testimony against Tut and Tutlam. The Petitioner did not
understand the concept of an “open” plea and did not understand the subjective nature of
his plea agreement. The Petitioner also did not understand that the State could decide not
to recommend concurrent sentencing or that the trial court could reject the State’s
recommendation for concurrent sentencing. Trial counsel never told the Petitioner that he
could receive an effective sentence of one hundred years in confinement, and trial counsel
never told the Petitioner that his testimony at Tutlam’s trial had to match his statements to
the detectives. Trial counsel never told the Petitioner about the State’s thirty-year offer on
all eight counts, and they never discussed withdrawing the Petitioner’s guilty pleas before
his sentencing hearing.
The Petitioner acknowledged that trial counsel went over his plea agreement form
with him and that trial counsel wrote as follows on the form: “Sentencing hearing to
determine the length within the range concurrent/consecutive if the defendant testifies
truthfully at the trial of Tut Tut and Peterpal.” The Petitioner said that he testified truthfully
at Tutlam’s trial to the best of his ability and that the inconsistencies between his testimony
and the victims’ testimony was “just the wording.” The Petitioner always maintained that
Tutlam did not accept any money from the robberies, and the State was aware of most of
the inconsistencies listed in its motion for consecutive sentencing before the Petitioner pled
guilty. The Petitioner acknowledged that trial counsel should have filed a response to the
State’s motion and should have disputed the alleged inconsistencies at sentencing.
On cross-examination, the Petitioner acknowledged that trial counsel met with him
in and out of court and that they reviewed discovery. The Petitioner also acknowledged
that at the outset of his plea hearing, General Gunn advised the trial court that the State
could recommend concurrent sentencing but that the trial court could reject the
recommendation. The trial court also advised the Petitioner during the plea hearing that he
could receive consecutive sentencing. General Thurman and General King met with the
Petitioner prior to Tutlam’s trial and warned him that he had to testify truthfully.
In a written order, the post-conviction court denied the petition for post-conviction
relief. First, the post-conviction court addressed the Petitioner’s claim that trial counsel
was ineffective for failing to explain the consequences of his “open” guilty pleas. The
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post-conviction court discredited the Petitioner’s claim that trial counsel did not explain
the consequences of his pleas, noting that the written plea agreement provided that the trial
court would determine the length and manner of service of the sentences, that the Petitioner
initialed each paragraph of the agreement, and that he signed the agreement. The post-
conviction court also noted that the trial court “explicitly addressed” concurrent and
consecutive sentencing during the plea hearing and that the Petitioner said he understood.
The post-conviction court recalled that during the plea hearing, the State advised the trial
court that its recommendation for concurrent sentencing was dependent upon the
Petitioner’s compliance and that the trial court reiterated during the plea colloquy that the
State may or may not recommend consecutive sentencing. Finally, the post-conviction
court accredited trial counsel’s testimony that he explained the plea agreement, including
the possibility of consecutive sentencing, to the Petitioner. Accordingly, the post-
conviction court found that the Petitioner failed to demonstrate that trial counsel rendered
deficient performance or that he was prejudiced by any deficiency.
Next, the post-conviction court addressed the Petitioner’s claim that trial counsel
was ineffective for failing to file a motion to withdraw the Petitioner’s guilty pleas when it
became evident that the State was not going to recommend concurrent sentencing. The
trial court noted that post-conviction counsel did not ask trial counsel why he did not file
the motion and that, in any event, the Petitioner “did not, and still does not, want to go to
trial.” The post-conviction court noted that the Petitioner filed a motion for a reduction of
sentence, which the trial court denied, and concluded that the Petitioner failed to show that
trial counsel was deficient or that he was prejudiced by any deficiency.
Finally, the post-conviction court addressed the Petitioner’s claim that he did not
plead guilty knowingly and voluntarily. The post-conviction court stated that during the
Petitioner’s plea colloquy, the trial court explained the consequences of his guilty pleas
and the rights he was waiving and that the Petitioner said he understood. The post-
conviction court reiterated that General Gunn advised the trial court in the Petitioner’s
presence that the State could recommend concurrent sentencing but that the issue of
concurrent or consecutive sentencing would be determined by the trial court. The trial
court then advised the Petitioner that his range of punishment for each offense was fifteen
to twenty-five years to be served at one hundred percent and that the trial court would
impose concurrent or consecutive sentencing after a sentencing hearing. The Petitioner
confirmed to the trial court that he read the plea agreement, that he initialed the paragraphs
of the agreement, and that he signed the agreement. The post-conviction court noted that
although the Petitioner indicated to the trial court that he was not satisfied with the State’s
plea offer, he said he wanted to proceed with his guilty pleas. The post-conviction court
concluded that the guilty plea hearing transcript and the record demonstrated that the
Petitioner entered his pleas knowingly and voluntarily.
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II. Analysis
On appeal, the Petitioner contends that he received the ineffective assistance of
counsel because trial counsel “failed to procure a more definitive” explanation of what the
State expected from him in the plea agreement, failed to hold the State accountable for not
recommending concurrent sentencing, and failed to file a motion to withdraw his guilty
pleas when it became evident that the State was not going to recommend concurrent
sentencing. The Petitioner also contends that because trial counsel failed to have a clear
understanding of the plea agreement, trial counsel was unable to explain the consequences
of his “open” guilty pleas, which resulted in his pleas being unknowing and involuntary.
The State argues that the Petitioner has failed to demonstrate that he was prejudiced by trial
counsel’s alleged deficiencies or that his guilty pleas were unknowing and involuntary.
We agree with the State.
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
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
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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.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).
Turning to the Petitioner’s claim that trial counsel was ineffective, trial counsel
testified that he failed to recognize the subjective nature of the plea agreement, that he
failed to explain the subjective nature of the agreement to the Petitioner, and that he failed
to challenge many of the reasons the State gave at sentencing for requesting consecutive
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sentencing. However, even if trial counsel was deficient, we agree with the State that the
Petitioner has failed to demonstrate prejudice. The Petitioner was well-aware that the issue
of concurrent sentencing ultimately rested with the trial court. During the Petitioner’s
sentencing hearing, the trial court stated, “I was not involved in the sentencing of either
Mr. Tut Tut or Mr. Duol Wal. And I can assure you that had I been that the sentences
would not have been what they are given what I know about this case.” The trial court’s
comments demonstrate that it did not think total concurrent sentencing for an effective
sentence of twenty-five years was appropriate in this case. Therefore, the Petitioner has
failed to show that even if the State had recommended concurrent sentencing, the trial court
would have ordered concurrent sentencing. We note that this same trial court ordered that
Tutlam serve all of his sentences consecutively for a total effective sentence of one hundred
fifty years. The trial court also could have ordered that the Petitioner serve all of his
sentences consecutively for a total effective sentence of eighty years. Instead, the trial
court ordered partial consecutive sentencing for a total effective sentence of forty years.
While the Petitioner’s effective sentence was ten years more than the effective sentence of
Duol Wal, who pled guilty to the same offenses, it was far less than Tutlam’s sentence.
As to the Petitioner’s claim that trial counsel was ineffective for failing to file a
motion to withdraw his guilty pleas when it became evident that the State was not going to
recommend concurrent sentencing, Tennessee Rule of Criminal Procedure 32(f)(1)
provides that a trial court may grant a motion to withdraw a guilty plea “for any fair and
just reason” prior to sentencing. Here, post-conviction counsel did not ask trial counsel
why he never considered filing a motion to withdraw the Petitioner’s guilty pleas.
However, as noted by the post-conviction court, the Petitioner advised the post-conviction
court that he did not want to go to trial. Likewise, the Petitioner asserts in this appeal that
he wants post-conviction relief in the form of resentencing. Therefore, the Petitioner has
failed to show that trial counsel was ineffective for failing to file a motion to withdraw his
guilty pleas.
Turning to the Petitioner’s claim that he did not plead guilty knowingly and
voluntarily, the post-conviction court accredited trial counsel’s testimony that he explained
the plea agreement to the Petitioner, that he had the Petitioner initial each paragraph of the
agreement, and that he had the Petitioner sign the agreement. Our review of the agreement
confirms that the Petitioner initialed every paragraph and that trial counsel wrote on the
agreement that the Petitioner was pleading guilty to two counts of especially aggravated
kidnapping and two counts of especially aggravated robbery. Trial counsel also wrote on
the agreement that the Petitioner was facing sentences of fifteen to twenty-five years to be
served at one hundred percent for each conviction and that a sentencing hearing would be
held “to determine Length w/in Range, concurrent/consecutive.” Trial counsel then wrote,
“If Defendant testifies truthfully at Trial of Tut Tut & [Peterpal], recommendation of
concurrent.” The Petitioner signed the plea agreement.
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At the guilty plea hearing, General Gunn advised the trial court about the terms of
the plea agreement in the Petitioner’s presence, including that the State would recommend
concurrent sentencing if the Petitioner testified truthfully at the upcoming trials of Tut Tut
and Tutlam. General Gunn also advised the trial court that the ultimate decision regarding
concurrent sentencing would be left to the trial court. During the plea colloquy, the trial
court asked the Petitioner several times if he understood that the trial court could order
consecutive sentencing, and the Petitioner said yes. When the trial court asked the
Petitioner if he was satisfied with trial counsel’s representation, the Petitioner said that trial
counsel had been “pressuring [him] to do stuff” and that he was dissatisfied with the plea
agreement because he had wanted trial counsel to “get the minimum.” Nevertheless, he
said he wanted to proceed with his guilty pleas.
The record demonstrates that the Petitioner was nineteen years old at the time of the
plea hearing. During the hearing, he told the trial court that trial counsel had explained the
charges to him, that they had reviewed discovery, and that they had discussed possible
defenses. The Petitioner also told the trial court that he was a high school graduate, that he
could read, and that he and trial counsel had reviewed the plea agreement together. The
trial court asked if the Petitioner was having any trouble understanding what he was doing
and if he was taking any medication, and the Petitioner answered both questions in the
negative. At the post-conviction evidentiary hearing, trial counsel testified that the
aggravated rape charges were “a big problem” for the Petitioner, that trial counsel was able
to negotiate a plea agreement in which the State would dismiss those charges, and that the
Petitioner decided to plead guilty. Had the Petitioner not pled guilty, he was facing a trial
for eight Class A felonies and an effective sentence much greater than the effective forty-
year sentence he actually received. 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.
_____________________________
NORMA MCGEE OGLE, JUDGE
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