Jeremy Jones v. State of Tennessee

01/11/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 7, 2021
JEREMY JONES v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 13-02332 Glenn Ivy Wright, Judge
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No. W2020-01743-CCA-R3-PC
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Jeremy Jones, Petitioner, was convicted of attempted first degree murder, aggravated
assault, employing a firearm during the commission of a dangerous felony, and being a
convicted felon in possession of a firearm. His convictions were affirmed on appeal. State
v. Jeremy Jones, No. W2015-01528-CCQA-R3-CD, 2016 WL 7654954 (Tenn. Crim. App.
Sept. 26, 2016), perm. app. denied (Tenn. Jan. 20, 2017). Petitioner sought post-conviction
relief on various grounds, including ineffective assistance of counsel based on trial
counsel’s lack of communication and trial strategy. After a hearing, the post-conviction
court denied relief and dismissed the petition. We affirm the judgment of the post-
conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR. and ROBERT H. MONTGOMERY, JR., JJ., joined.
Patrick Stegall, Memphis, Tennessee, for the appellant, Jeremy Jones.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
After being convicted of attempted first degree murder, aggravated assault,
employing a firearm during a dangerous felony, and being a convicted felon in possession
of a firearm, Petitioner appealed. See Jeremy Jones, 2016 WL 7654954, at *1. This Court
affirmed Petitioner’s convictions but remanded for entry of a corrected judgment form in
Count 3 to “check the box indicating that [Petitioner] was found guilty in that count.” Id.Subsequently, Petitioner filed a timely pro se petition for post-conviction relief, in
which he alleged that he received ineffective assistance of counsel at trial and on appeal
and that the trial court committed plain error by allowing the conviction for employing a
firearm during the commission of a dangerous felony in Count 3 to stand. Specifically,
Petitioner argued that trial counsel was ineffective for failing to object to the accuracy of
the sentence in Count 3, that appellate counsel was ineffective because he conceded
Petitioner’s guilt on the conviction for aggravated assault, and that appellate counsel was
ineffective for failing to prepare a record that would allow him to challenge the impartiality
of the jury. The post-conviction court appointed post-conviction counsel to represent
Petitioner and an amended petition was filed. In the amended petition, Petitioner again
alleged that trial counsel failed to create an adequate record to challenge the impartiality of
the jury. Post-conviction counsel filed a second amended petition for post-conviction
relief, this time arguing that trial counsel failed to file certain motions prior to trial, failed
to implement a trial strategy, and failed to communicate with Petitioner.
The post-conviction court held a hearing. At the hearing, trial counsel testified that
he had been in practice for 20 years, with approximately 40% of his practice devoted to
criminal defense. Trial counsel had tried “[p]robably over 50” felony cases prior to
Petitioner’s trial. Trial counsel recalled that Petitioner was indicted after an incident that
started with a “beef between [Petitioner] and another guy . . . [who] had been selling drugs
in the cut.” There was an altercation and Petitioner shot someone. Trial counsel recalled
that a witness saw Petitioner with the gun walk casually away from the scene.
Trial counsel explained that he was not the first attorney involved in the case. He
recalled that an attorney was initially appointed to represent Petitioner. This attorney filed
a number of routine motions. Then, Petitioner’s family and friends hired trial counsel.
Trial counsel worked with an investigator and another attorney in preparation for the trial.
Trial counsel described his relationship with Petitioner as “good.” Trial counsel
met with and consulted Petitioner prior to trial. Petitioner was in custody at the time. Trial
counsel thought that there was an offer from the State that “may have been 15 years.”
However, trial counsel recalled that Petitioner would not take the offer. Trial counsel
explained that he could “only advise” Petitioner because “[u]ltimately it was his decision”
to take the plea or go to trial. Trial counsel and the investigator “begged” Petitioner to take
the offer, but trial counsel recalled that Petitioner wanted an offer the State was not going
to give him. Trial counsel also recalled that Petitioner was concerned about losing “his
appeal rights” if he pled guilty.
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When asked whether he filed motions on behalf of Petitioner, trial counsel explained
that he filed “standard motions” in almost every case and that prior to the time he started
representing Petitioner, another attorney filed several motions. Trial counsel recalled that
Petitioner “was trying to get [trial counsel] to file some jailhouse motions.” Trial counsel
explained that he was not going to waste his time filing the motions Petitioner wanted him
to file because all relevant motions had already been filed.
Trial counsel explained that this was not a case about “who done it;” it was “pretty
obvious.” Trial counsel disagreed that he conceded to the jury that Petitioner was guilty
of a lesser included offense. Trial counsel explained that he thought it would be
“malpractice” if he did not address the lesser included offenses in the closing argument.
Trial counsel recalled talking about trial strategy with Petitioner and explained that when
trial counsel saw from the proof “how bad the case was going” he “did what [he] thought
was necessary in order to try to minimize or mitigate” the charges by addressing lesser
included offenses in the closing argument.
Trial counsel did not recall if there was any basis to object to the State’s request for
an enhancement based on Petitioner’s status as a convicted felon. Trial counsel
remembered that there was a decision made at trial to stipulate to the prior felony offense
so that the facts of that case would not be presented to the jury. In trial counsel’s opinion,
stipulating to the prior felony would serve to reduce prejudice by the jury against Petitioner.
Petitioner testified that he received a 25-year sentence after a jury trial. Petitioner
claimed that he wrote trial counsel asking him to file several motions prior to trial but that
trial counsel did not respond. Petitioner alleged that trial counsel “never did come to see
[him] in county jail period.” Petitioner claimed that he saw trial counsel “[m]aybe like six
month[s] - - five months” prior to trial and that trial counsel “never” came to see him.
Petitioner complained that trial counsel ignored his requests. He “wrote [trial
counsel] like two or three letters” to get him to file motions to identify State witnesses,
continue the trial, find out the State’s intent to use evidence under Rule 16, and get a
witness to make a statement under oath prior to trial. Petitioner insisted that trial counsel
did not follow through with his requests.
Petitioner testified that prior to trial he “signed for a 15-year sentence” that was at
“30 percent.” However, the prosecutor “announced that [he] wasn’t eligible for the 15 that
was at 30 percent” so Petitioner chose to go to trial. He felt “pressure” to accept the “15 at
85” percent but wanted to do more “research” because he insisted that he was eligible for
a sentence to be served at 30 percent.
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Petitioner testified that he was not aware that the State was trying to enhance his
sentence because of his status as a convicted felon. Petitioner testified that he learned about
the enhancement at sentencing.
Petitioner testified that, at one point before or during trial, he submitted a pro se
motion that he read aloud in the courtroom. According to Petitioner, the trial court did not
rule on the motion. Petitioner was also concerned that his convictions for aggravated
assault, criminal attempt first degree murder, and the employment of a firearm resulted in
a double jeopardy violation.
After hearing the proof, the post-conviction court denied relief. In a written order,
the post-conviction court determined that Petitioner’s claim that the trial court committed
plain error by allowing Petitioner to be convicted of employing a firearm during the
commission of a dangerous felony had been previously determined on appeal and was not
proper for post-conviction relief.
Next, the post-conviction court determined that Petitioner was not prejudiced
because trial counsel failed to object to his conviction of employment of a firearm during
the commission of a dangerous felony. The post-conviction court noted that Petitioner
admitted that he had a prior felony. Moreover, the post-conviction court determined that
Petitioner was not prejudiced by trial counsel’s failure to challenge the conviction based
on double jeopardy grounds because the conviction did not violate principles of double
jeopardy.
The post-conviction court further determined that it was a reasonable trial strategy
for trial counsel to attempt to mitigate “the damaging evidence presented at trial” by
arguing that Petitioner committed the aggravated assault but did not commit the attempted
first degree murder. The post-conviction court also declined to find ineffective assistance
on the basis that trial counsel failed to file all the motions requested by Petitioner. The
post-conviction court noted that trial counsel filed all motions deemed “necessary” and that
Petitioner failed to show prejudice by counsel’s failure to file motions.
With respect to appellate counsel, the post-conviction court determined that
Petitioner “failed to present facts that show he was prejudiced” by counsel’s failure to
present an accurate and complete record of the jury proceedings. Moreover, the post-
conviction court noted that Petitioner failed to address this issue at the hearing.
Petitioner filed a timely notice of appeal.
Analysis
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On appeal, Petitioner complains that there were “inconsistencies between trial
counsel’s and [Petitioner’s] testimonies” with respect to the 15-year offer, trial strategy,
and communication with trial counsel.1 As a result of the discrepancies in the testimony
presented at the post-conviction hearing, Petitioner insists that the facts presented at the
post-conviction hearing indicated that he received ineffective assistance of counsel. The
State disagrees, noting that Petitioner failed to raise any issue related to a potential plea
agreement in a petition for post-conviction relief and, in any event, Petitioner failed to
allege a deficiency in trial counsel’s performance that would entitle him to relief.
Concerning trial communication and strategy, the State contends that Petitioner failed to
show deficient representation or prejudice based on trial counsel’s actions.
Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d 152,
156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or substantial
doubt about the correctness of the conclusions drawn from the evidence.” Hicks v. State,
983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a post-conviction court’s
findings of fact are conclusive unless the evidence preponderates otherwise. Vaughn v.
State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly, questions concerning witness
credibility, the weight and value to be given to testimony, and the factual issues raised by
the evidence are to be resolved by the post-conviction court, and an appellate court may
not substitute its inferences for those drawn by the post-conviction court. State v.
Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). However, the post-conviction court’s
conclusions of law and application of the law to the facts are reviewed under a purely de
novo standard, with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001).
Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate
that counsel’s representation fell below the range of competence demanded of attorneys in
criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two-prong
test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner must
1
Petitioner raised other issues in his petitions for post-conviction relief and at the hearing that he
does not raise on appeal. Those issues are abandoned. See Ronnie Jackson, Jr. v. State, No. W2008-02280-
CCA-R3-PC, 2009 WL 3430151, at *6 n.2 (Tenn. Crim. App. Oct. 26, 2009) (“While the Petitioner raised
additional issues in his petition for post-conviction relief, he has abandoned those issues on appeal.”), perm.
app. denied (Tenn. Apr. 16, 2010).
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prove that counsel’s performance was deficient and that the deficiency prejudiced the
defense. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
the same standard for determining ineffective assistance of counsel applied in federal cases
also applies in Tennessee). Because a petitioner must establish both elements in order to
prevail on a claim of ineffective assistance of counsel, “failure to prove either deficient
performance or resulting prejudice provides a sufficient basis to deny relief on the claim.”
Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “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 v. State, 938 S.W.2d 363, 370 (Tenn. 1996)
(citing Strickland, 466 U.S. at 697).
The test for deficient performance is whether counsel’s acts or omissions fell below
an objective standard of reasonableness under prevailing professional norms. Strickland,
466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the questionable
conduct from the attorney’s perspective at the time, Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982), and “should indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance,” State v. Burns, 6 S.W.3d 453, 462
(Tenn. 1999). This Court will not use hindsight to second-guess a reasonable trial strategy,
even if a different procedure or strategy might have produced a different result. See Adkins
v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); Williams v. State, 599 S.W.2d
276, 279-80 (Tenn. Crim. App. 1980). However, this deference to the tactical decisions of
trial counsel is dependent upon a showing that the decisions were made after adequate
preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Even if a petitioner shows that counsel’s representation was deficient, the petitioner
must also satisfy the prejudice prong of the Strickland test in order to obtain relief. The
question is “whether counsel’s deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364,
372 (1993). A petitioner must show that there is a reasonable probability “sufficient to
undermine confidence in the outcome” that, “but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694).
First, we agree with the State that Petitioner did not raise the issue regarding the
alleged 15-year plea agreement in a petition for post-conviction relief or amended petition
for relief and that the post-conviction court did not address this issue in the order denying
post-conviction relief. However, the issue was discussed at the hearing.
“‘[I]ssues not addressed in the post-conviction court will generally not be
addressed on appeal.’” Lane v. State, 316 S.W.3d 555, 561-62 (Tenn. 2010)
(quoting Walsh v. State, 166 S.W.3d 641, 645-46 (Tenn. 2005)).
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Furthermore, this Court has held that “the plain error rule, which would
otherwise permit an appellate court to address the issue sua sponte, may not
be applied in post-conviction proceedings to grounds that would otherwise
be deemed waived or previously determined.” Grindstaff [v. State], 297
S.W.3d [208,] 219 [Tenn. 2009] (citing [State v. ]West, 19 S.W.3d [753,]
756-57 [(Tenn. 2000)]). Tennessee appellate courts may only consider issues
that were not formally raised in the post-conviction petition if the issue was
argued at the post-conviction hearing and decided by the post-conviction
court without objection. See [Joshua R.] Starner v. State, No. M2018-01015-
CCA-R3-PC, 2019 WL 3856852, at *13 (Tenn. Crim. App. Aug. 16, 2019)
(holding that an issue was “reviewable on the merits” because the petitioner
argued it during the post-conviction hearing with no objections)[, no perm.
app. filed]; [Stanley] Williams v. State, No. W2018-01269-CCA-R3-PC,
2019 WL 2407157, at *11 (Tenn. Crim. App. June 7, 2019) (interpreting
Tennessee Supreme Court Rule 28, section 8(D)(5) to hold that an issue may
not be waived if it was “raised at the post-conviction hearing and ruled on by
the post-conviction court” without objection because the petitioner would not
have been aware of the need to amend the petition to include the issue), perm.
app. denied, (Tenn. Oct. 11, 2019); [George Washington] Matthews v. State,
No. W2018-00966-CCA-R3-PC, 2019 WL 1110101, at *9 (Tenn. Crim.
App. Mar. 11, 2019) (considering an issue on the merits that was not
specifically mentioned in the post-conviction petition, though alleged
generally, because it was litigated at the post-conviction hearing without
objection)[, perm. app. denied (Tenn. July 17, 2019)]; [Kenneth] Brown v.
State, No. W2017-01755-CCA-R3-PC, 2019 WL 931735, at * 10 (Tenn.
Crim. App. Feb. 22, 2019) (considering an issue not included in petition but
argued at the post-conviction hearing without objection)[, perm. app. denied
(Tenn. July 25, 2019)]; [Marlon] Yarboro v. State, No. W2017-00125-CCA-
R3-PC, 2018 WL 4441364, at *7 (Tenn. Crim. App. Sept. 17, 2018)
(deciding an issue not presented in the petition because it was argued at the
post-conviction hearing and not objected to by opposing counsel and
petitioner was no longer able amend the petition)[, no perm. app. filed];
[State v. Lester D.] Herron, [No. 03C019109-CR-00284,] 1992 WL 43273,
at *4 [Tenn. Crim. App. Mar. 10, 1992)] (“On the other hand, if an issue is
not specially pled, we do not view [our case law] as prohibiting a trial court
from ruling on it if it is litigated by the parties in a post-conviction hearing
without objection.”)[, perm. app. denied (Tenn. Oct. 26, 1992)].
Holland v. State, 610 S.W.3d 450, 458 (Tenn. 2020) (emphasis added). This issue is
waived. Even though the issue was discussed at the post-conviction hearing and the State
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failed to object, the issue was not raised in a petition for post-conviction relief, and the
post-conviction court did not rule on it.
With regard to Petitioner’s complaint that trial counsel was ineffective for failing to
properly communicate or implement a trial strategy, trial counsel testified at the hearing
that the evidence of Petitioner’s guilt was pretty “damaging.” Trial counsel recalled talking
with Petitioner about the importance of mitigating the damages of how the case was going
by addressing the lesser included offenses in the closing argument. The post-conviction
court determined that it was a “reasonable trial strategy” to attempt to mitigate the charge
of attempted first degree murder. Petitioner has failed to show either that trial counsel’s
representation was deficient or that he was prejudiced by trial counsel’s strategy. We will
not second-guess counsel’s reasonable trial strategy. See Adkins, 911 S.W.2d at 347;
Williams, 599 S.W.2d at 279-80. Petitioner is not entitled to relief on this issue.
Conclusion
For the foregoing reasons, the judgment of the post-conviction court is affirmed.
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TIMOTHY L. EASTER, JUDGE
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