Dennis Joshua Cooper v. State of Tennessee

02/02/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
November 2, 2021 Session
DENNIS JOSHUA COOPER v. STATE OF TENNESSEE
Appeal from the Circuit Court for Henderson County
Nos. 18-181-2, 18-182-2, 18-183-2, 18-184-2 Donald H. Allen, Judge
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No. W2020-01727-CCA-R3-PC
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Petitioner, Dennis Joshua Cooper, was indicted by the Henderson County Grand Jury in
four separate cases for 15 drug-related offenses. Pursuant to two plea agreements,
Petitioner pled guilty as charged in exchange for a total effective sentence of 20 years.
Petitioner filed a pro se petition for post-conviction relief alleging that his guilty pleas
were not freely or voluntarily entered and that he received ineffective assistance of
counsel. Following an evidentiary hearing, the post-conviction court denied relief. Upon
careful review, we affirm the judgment of the post-conviction court. However, we
remand the case to the post-conviction court for correction of the judgment forms to
reflect the sentences as imposed by the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
and Remanded
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., joined. NORMA MCGEE OGLE, J., concurred in results only.
Jeremy Epperson, District Public Defender; Brennan M. Wingerter (on appeal), Assistant
Public Defender – Appellate Division; and Hayley F. Johnson (at hearing), Assistant
Public Defender, for the appellant, Dennis Josh Cooper.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Jody S. Pickens, District Attorney General; and Al Earls, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
On October 1, 2018, Petitioner was indicted by the Henderson County Grand Jury
in four separate cases for 15 drug-related offenses. The trial court held a guilty plea
hearing on November 19, 2019. The hearing began with the trial court asking Petitioner
whether he wished to enter guilty pleas. Petitioner responded in the affirmative.
Petitioner confirmed that plea counsel had reviewed the guilty plea forms with him and
that he understood the forms. Petitioner confirmed he would tell the truth during the
proceeding. Petitioner confirmed that he was not under the influence of alcohol,
narcotics or any other drugs that could impair his judgment.
The trial court read Petitioner his constitutional rights and informed Petitioner of
the consequences of entering a guilty plea. Petitioner confirmed that he understood his
rights and that by entering his guilty pleas, he was waiving those rights. Petitioner
confirmed that he was entering the guilty pleas freely and voluntarily. Petitioner
confirmed that he was not under any force, pressure, threats, or promises that would lead
him to plead guilty. Petitioner nodded his head in response to the trial court asking
whether Petitioner believed pleading guilty was his best course of action.
Petitioner confirmed that he was satisfied with his plea counsel’s representation.
Petitioner confirmed that plea counsel had fully advised him of his possible legal
defenses. Petitioner confirmed that he fully understood his actions in pleading guilty.
The trial court thoroughly explained each of Petitioner’s charges and asked him whether
he was pleading guilty in each case. The trial court reviewed the plea bargain agreement.
The trial court asked whether Petitioner had any questions. Petitioner replied,
“No.” The trial court asked Petitioner if he still wanted to proceed with the guilty pleas
and Petitioner said, “Yeah.” The trial court requested the State to provide factual
summaries of the charges in each case. The State responded:
Case Number 18-181-2:
[T]he State would show at trial in this matter that [Petitioner] on November
20th of 2017, November 22nd, 2017 and November 29th, 2017, did
unlawfully and knowingly sell and delivery [sic] methamphetamine, a
Schedule II controlled substance, in violation of [T.C.A. §] 39-17-434.
Your Honor, in buy one that was conducted on 11/20/17 was .82 grams,
buy two on 11/22/17 was .75 grams and buy three on 11/29/17 was .44
grams. All of those were conducted here in Henderson County, Tennessee.
Case Number 18-182-2:
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[This] was also another undercover buy. This was conducted after
[Petitioner] had made bond. Your Honor, what happened was we did the
three undercover buys and we executed a search warrant. Those were the
basis of the charges in 18-183[-2]. He made bond on that search warrant
and while he was out on bond in that case on March 29th, 2018, he did
again sell and deliver methamphetamine also again over .5 grams in
violation in [sic] of [T.C.A. §] 39-17-434. Your Honor, that was .85 grams
on 3/29/18.
Case Number 18-183-2:
[T]he State would show that on December 5th, 2017 that [Petitioner] in this
case did unlawfully possess with intent to sell and deliver
methamphetamine over .5 grams in violation of T.C.A. [§] 39-17-434. He
also was in possession of marijuana in violation of T.C.A. [§] 39-17-418
and also did use or possess drug paraphernalia in violation of [§] 39-17-
425.
Your Honor, after the initial buys that were conducted in November in Case
No. 181, officers did execute a search warrant on December 5th of 2017,
the basis of the charges in [Case No. 183]. [Petitioner] was found to be in
possession of 6.88 grams of methamphetamine and .10 grams of marijuana
and also digital scales which were the basis of the paraphernalia charge.
Case Number 18-184-2:
[Y]our Honor, this involves both [Petitioner and his wife]. On April 3rd,
2018, [Petitioner and his wife] in this case were unlawfully and knowingly
in possession of methamphetamine, a Schedule II controlled substance,
over .5 grams with intent to sell and deliver and also were in possession of
drug paraphernalia in violation of T.C.A. [§] 39-17-425.
Your Honor, in this case after [Petitioner] was arrested in Case No. 183 in
the lower court and had made bond, officers then learned that [Petitioner]
was perhaps selling methamphetamine again and they conducted that
second buy which occurred on March the 29th of 2018. After that buy was
conducted then on this date which was April the 3rd of 2018 then the[y]
conducted a second search warrant at the location of [Petitioner and his
wife]. They were found to be in possession of methamphetamine 7.08
grams. They were actually on the person of [Petitioner’s wife] and a digital
scale was recovered also again.
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Petitioner agreed with the State’s factual summaries. The trial court found that
Petitioner’s decision to enter the guilty pleas was “freely, voluntarily, knowingly, and
intelligently made and that there [was] a factual basis for [his] plea on all counts in all
cases.” The trial court accepted the pleas. The trial court sentenced Petitioner to a total
effective sentence of 20 years.
Petitioner filed a pro se petition for post-conviction relief alleging that his guilty
pleas were unknowing and involuntary and that he received ineffective assistance of
counsel. The post-conviction court appointed counsel for Petitioner and held an
evidentiary hearing on December 1, 2020.
At the evidentiary hearing, Petitioner testified he completed twelfth grade and
received a special education diploma. Petitioner explained that because of his learning
disability, he was unable to work and received disability payments “all [his] life.”
Petitioner remembered his plea counsel and stated that plea counsel represented him in
several cases. Petitioner recalled that his wife was charged in one of the cases along with
Petitioner and that plea counsel represented both of them.
Petitioner remembered the facts of his and his wife’s arrest in April of 2019.
Petitioner testified that he was arrested outside of his house and admitted to having drug
paraphernalia. An hour and 45 minutes after his arrest, Petitioner’s wife apparently
“pulled [roughly 7 grams of methamphetamine] out of her bra and gave it to [the
detective] and said that it was [Petitioner’s.]” Petitioner said that he and his wife had
separated in November of 2018. Petitioner knew plea counsel also represented his wife.
Petitioner said that he did not sign “no kind of paper” regarding a conflict of interest.
Petitioner restated that he received disability payments “for [his] mind.” He explained,
“[I] can’t read and write and I don’t like get, like – I know a lot, but I don’t understand a
lot that goes on.” Petitioner said he had lived with his mother his whole life.
Petitioner testified that he spoke with mental health professionals on four
occasions. When asked whether plea counsel pursued or discussed a diminished capacity
defense with Petitioner, Petitioner said, “I don’t even know what that is.” Petitioner
testified that he “didn’t really understand” what was going to happen if he pleaded guilty.
He said, “You know, I just knew I took a 20[-]year plea.” Petitioner said that plea
counsel met with him four or five times over 14 months. Post-conviction counsel asked
Petitioner if plea counsel reviewed discovery with him. Petitioner replied, “We never sat
down and went through the motion.”
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On cross-examination, the State asked Petitioner if he swore to a petition in this
matter. Petitioner responded, “Whatever a petition is I reckon.” Petitioner confirmed
that he knew he was at the post-conviction hearing because of his petition. Petitioner said
that he could not read, but a “legal aid” helped prepare his petition and reviewed it with
him.
Petitioner admitted that he had previously entered guilty pleas in 2005 and 2008.
Petitioner confirmed that at those guilty plea hearings, the trial court explained to him his
constitutional rights. Petitioner admitted that he understood his rights at the time.
Petitioner admitted that he understood his guilty pleas and the length of his sentence in
the current matter. Petitioner admitted that the trial court explained to him his
constitutional rights and that he understood them. Petitioner confirmed that he fully
understood his actions when he pleaded guilty at the hearing on November 11, 2019.
On redirect examination, Petitioner testified that his “legal aid” prepared his
petition based on their conversations and his “paperwork.” Petitioner confirmed that the
“legal aid” read the petition to him. On recross-examination, Petitioner admitted he did
not tell the “legal aid” what information to include in the petition.
Plea counsel testified that he had practiced law for 16 years. Plea counsel stated
that 99 percent of his practice consisted of criminal defense work. Plea counsel recalled
that he had represented Petitioner and Petitioner’s family for many years.
Plea counsel testified that there was an “extensive preliminary hearing” to address
both of Petitioner’s arrests. Plea counsel confirmed that he “obtain[ed] a substantial
amount of knowledge as to what the State’s evidence was” at the preliminary hearing.
After the preliminary hearing, plea counsel requested discovery and photocopied all four
case files to share with Petitioner. Plea counsel disagreed with Petitioner’s statement that
plea counsel did not review the discovery materials with Petitioner. Plea counsel testified
that he reviewed the discovery materials with Petitioner “in the attorney/client room
outside of [Petitioner’s] pod[.]”
Plea counsel recalled meeting with Petitioner on a regular basis. In fact, plea
counsel testified, “Each time I came to the jail to meet with a client especially if it was
somebody in [Petitioner’s] pod, he would stick his head in and we would talk about the
case and he would make a different pitch for me to make to the State as far as plea
negotiations went.”
Plea counsel said that at the insistence of Petitioner’s family, plea counsel
requested a forensic interview. Plea counsel said the initial evaluation determined
Petitioner was not competent to stand trial. However, after additional testing, the mental
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health professionals determined Petitioner understood “the nature and seriousness of the
crimes[.]” Plea counsel said, “The ultimate diagnoses [sic] was that there was some
malingering that was involved.” Plea counsel confirmed that Petitioner was not truthful
during his forensic interviews. Plea counsel estimated Petitioner “would have been at
least a Range [II] based on his prior criminal history and possibly a Range [III.]” Plea
counsel confirmed that after negotiating with the State, he obtained a plea deal for
Petitioner. Plea counsel testified that Petitioner could have received a much harsher
sentence if the case had gone to trial. Plea counsel confirmed that the evidence against
Petitioner was substantial.
On cross-examination, plea counsel confirmed that after Petitioner’s first mental
evaluation, he was deemed not competent to stand trial. Plea counsel said that the State
filed a motion for additional counseling and possible rehabilitation. The trial court
ordered the additional counseling. Plea counsel admitted he did not discuss retaining a
forensic expert to interview Petitioner and did not discuss “a diminished capacity
defense.”
Plea counsel admitted Petitioner’s wife was charged in one of Petitioner’s four
cases. Plea counsel testified that Petitioner’s description of the April 2019 arrest was
“pretty accurate.” Plea counsel said the State was pursuing a criminal responsibility
charge against Petitioner because Petitioner’s wife told law enforcement that Petitioner
“handed her the drugs to hide” when he saw them approaching. Plea counsel confirmed
Petitioner’s wife pled guilty based on criminal responsibility. Plea counsel stated,
however, “[Petitioner’s] position from the time that they were both arrested was that he
wanted to take those charges so that she wouldn’t be charged because it would affect the
custody of her son, but the State at no point offered to dismiss charges against either one
of them on it.” Plea counsel recalled that Petitioner and Petitioner’s wife were not
divorced when he represented them. Plea counsel did not recall whether Petitioner signed
a waiver for a potential conflict of interest. Plea counsel testified that Petitioner and
Petitioner’s wife met with plea counsel and he told them “if they ever got sideways from
each other or even began to point the finger at the other than [he] couldn’t represent
either one of them.”
After hearing the arguments, the post-conviction court accredited plea counsel’s
statement that he regularly met with Petitioner while Petitioner was in jail. The post-
conviction court accredited plea counsel’s statement that the proof against Petitioner was
substantial. The post-conviction court accredited plea counsel’s testimony that he
received full discovery and reviewed it with Petitioner. The post-conviction court stated,
“Apparently [Petitioner] was found to be malingering.” The post-conviction court asked
plea counsel whether he reviewed the notice for enhanced punishment with Petitioner and
plea counsel said, “Charge by charge and line by line.” The post-conviction court
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reiterated Petitioner’s responses at the guilty plea submission hearing. The post-
conviction court found that Petitioner failed to carry his burden to show that he entered
his pleas unknowingly and involuntarily. The post-conviction court agreed with plea
counsel that Petitioner could have received harsher sentences for his offenses. The post-
conviction court stated, “[Petitioner] hasn’t even stated today what the deficiency was[]”
and, “You know, I haven’t heard anything that says [plea counsel] did anything wrong or
should have done something different.”
In a written order, the post-conviction court denied relief. The post-conviction
court found that plea counsel conducted “a thorough cross[-]examination of the [S]tate’s
witnesses” at the preliminary hearing and accredited his statement that the State had
“substantial” evidence against Petitioner. The post-conviction court found that plea
counsel obtained a “very favorable plea agreement” for Petitioner. The post-conviction
court found that based on plea counsel’s testimony, there “was some malingering in
[Petitioner’s] interview with the mental health professionals.” The post-conviction court
reviewed the plea hearing transcript and concluded that Petitioner presented no evidence
or testimony to contradict the court’s guilty plea findings that the pleas were knowingly
and voluntarily entered. The post-conviction court concluded that plea counsel was not
deficient as Petitioner had failed to show “any prejudice by anything that [plea counsel]
did or did not do in this matter.” Petitioner now appeals.
Analysis
Petitioner argues on appeal that the post-conviction court erred in denying post-
conviction relief because Petitioner’s guilty pleas were not knowingly or voluntarily
entered. Petitioner also claims that he received ineffective assistance of counsel as a
result of a conflict of interest. The State responds that the post-conviction court properly
denied relief. The State argues that Petitioner failed to include his claim of ineffective
assistance of counsel in his petition and therefore the issue is waived for appellate review.
Additionally, the State contends that Petitioner has failed to show deficiency or prejudice.
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
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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 own 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).
I. Guilty Pleas
To satisfy constitutional standards of due process, a guilty plea must be entered
knowingly, intelligently, and voluntarily. Boykin v. Alabama, 395 U.S. 238, 243 (1969).
When evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[t]he standard was and remains whether the plea represents
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 making this
determination, the reviewing court must look to the totality of the circumstances. See
State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995); Chamberlain v. State,
815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). This Court may consider the following
circumstantial 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 trial.
Blankenship v. State, 858 S.W.2d 897, 905 (Tenn. 1993). “[A] plea is not ‘voluntary’ if it
results from ignorance, misunderstanding, coercion, inducements, or threats.” Ward v.
State, 315 S.W.3d 461, 465 (Tenn. 2010). “Before a Tennessee court can accept any
guilty plea, the court must determine that the defendant is pleading guilty voluntarily and
with an understanding of the nature of the plea and its consequences” and that there is an
adequate factual basis for the plea. Hicks, 983 S.W.2d 240 at 247. A defendant’s solemn
declaration in open court that his plea is knowing and voluntary creates “a formidable
barrier in any subsequent collateral proceeding” because these declarations “carry a
strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Petitioner argues that because of his mental deficiencies, he did not enter the guilty
pleas knowingly or voluntarily. The record shows that while Petitioner has a learning
disability, he completed twelfth grade and received a special education diploma.
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Petitioner testified that he cannot read or write, that he lived with his mother, and that he
had received disability payments his whole life. However, the trial court thoroughly
reviewed each charge in all four cases with Petitioner. The trial court reviewed the plea
agreement with Petitioner. Petitioner confirmed that he understood the terms of the plea
agreement. He also admitted that he had previously entered guilty pleas in at least two
other criminal matters and been informed of his constitutional rights during those
hearings.
During the post-conviction hearing, Petitioner testified that he received mental
evaluations on four occasions. The technical record contains only one mental evaluation
from Western Mental Health Institute, and it states that Petitioner was competent to stand
trial. Plea counsel testified that “[t]he ultimate diagnoses [sic] was that there was some
malingering that was involved.” Post-conviction counsel did not object to this statement
or offer any rebuttal.
The post-conviction court found that plea counsel met with Petitioner “on numerous
occasions.” The post-conviction court found that plea counsel reviewed full discovery
with Petitioner. It is clear from the record that the trial court explained each individual
charge against Petitioner and the consequences of pleading guilty to the charges, and
Petitioner’s actions in entering the pleas were both knowing and voluntary. Plea counsel
testified that based on Petitioner’s prior convictions, that Petitioner could have received a
sentence much longer than the 20 years he received in exchange for his pleas. The
evidence does not preponderate against the post-conviction court’s findings and
conclusions. Petitioner is not entitled to relief on the basis that his guilty pleas were
unknowingly and involuntarily entered.
II. Ineffective Assistance of Counsel
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 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
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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).
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).
“Before a petitioner may obtain post-conviction relief on the ground of a conflict
of interest, he must establish by a preponderance of the evidence that: (a) an actual
conflict of interest existed; and (b) the conflicting interest adversely affected the
performance of counsel. Antoine Cardet Smith v. State, No. M2017-000600-CCA-R3-
PC, 2017 WL 4861955, at *3 (Tenn. Crim. App. Oct. 26, 2017) (citing Cuyler v. Sullivan,
446 U.S. 335, 348-50 (1980)), no perm. app. filed. “A mere ‘potential conflict of
interest’ serves as no basis for a claim of ineffective assistance of counsel.” Clifton D.
Wallen v. State, No. E2000-02052-CCA-R3-PC, 2001 WL 839533, at *1 (Tenn. Crim.
App. July, 25, 2001), perm. app. denied (Tenn. Dec. 27, 2001). Under the Tennessee
Rules of Professional Conduct, a concurrent conflict of interest exists if “the
representation of one client will be directly adverse to another client” or “there is a
significant risk that the representation of one or more clients will be materially limited by
the lawyer’s responsibilities to another client, a former client, or a third person or by a
personal interest of the lawyer.” Tenn. Sup. Ct. R. 8, RPC 1.7(a).
The State argues Petitioner waived his ineffective assistance of counsel claim by
failing to specifically include it in his petition for post-conviction relief. Petitioner and
plea counsel both testified at the post-conviction hearing that plea counsel represented
Petitioner and his wife as co-defendants. Plea counsel testified that he did not have
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Petitioner or his wife sign a conflict of interest waiver form. Albeit brief, post-conviction
counsel argued that plea counsel’s joint representation of Petitioner and his wife affected
Petitioner’s guilty pleas. The State did not raise a defense of waiver during the post-
conviction hearing, and the post-conviction court ruled generally on the ineffective
assistance of counsel claim. See Walsh v. State, 166 S.W.3d 641, 645 (Tenn. 2005)
(concluding that the State’s waiver argument itself had been waived for failure to assert
the defense during the post-conviction hearing); see also Holland v. State, 610 S.W.3d
450, 458 (Tenn. 2020) (stating that “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 with no objection and decided by the post-conviction court
without objection.”). We conclude Petitioner’s claim is not waived.
Petitioner cites to Rule 1.7 of the Rules of Professional Responsibility to support
his ineffective assistance of counsel argument. However, Petitioner offered minimal
evidence at the post-conviction hearing to establish an actual conflict of interest.
Petitioner testified that his wife made a statement to law enforcement that he gave her his
drugs to hide them. Despite this statement, plea counsel testified, “[Petitioner’s] position
from the time that [he and his wife] were both arrested was that he wanted to take those
charges so that she wouldn’t be charged because it would affect the custody of her son,
but the State at no point offered to dismiss charges against either one of them on it.”
Petitioner relies on an “inherent conflict of interest” in the joint representation of
Petitioner and his wife to establish prejudice. The post-conviction court found that plea
counsel “performed within the bounds of attorneys practicing in these matters.” The
post-conviction court correctly concluded that there was no “showing of any prejudice by
anything that [plea counsel] did or did not do in this matter.” The evidence does not
preponderate against the post-conviction court’s findings. Accordingly, Petitioner is not
entitled to relief.
III. Judgment Forms
Finally, as first mentioned in Petitioner’s brief and later admitted by the State at
oral argument, there are several errors in the 15 form judgments that improperly reflect
Petitioner’s pleas and effective sentences. In the record before us, there are four pieces of
evidence that reflect Petitioner’s agreed upon sentence: (1) the transcript of Petitioner’s
plea colloquy;1 (2) Petitioner’s Plea documents dated November 19, 2019; (3) the form
judgments for all counts of the four indictments; and (4) testimony from the post-
1
Although the cover page to this transcript indicates November 11, 2019, the Court Reporter’s
attestation page certifies the proceeding was held on November 19, 2019. There is no explanation in the
record for this discrepancy.
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conviction hearing. None of the documents are completely consistent with one another.
What is consistent is the agreed upon sentence was to be an effective sentence of 20
years, as a Range I offender, to be served in the Department of Correction.2 The plea
transcript makes this crystal clear. Statements made by Petitioner at both his plea and
post-conviction hearings, his plea counsel, the State, the plea Court, and his post-
conviction counsel leave no room for doubt about the agreed upon effective sentence.
Notations throughout the plea forms support an effective 20-year sentence. The problem
is, the form judgments, when viewed in isolation, do not reflect the agreed upon pleas and
sentences.3 This problem does not support granting relief for any of the claims raised in
Petitioner’s Post-Conviction pleadings. To be clear, the effective sentence that Petitioner
voluntarily and knowingly agreed to, with the assistance of effective counsel, was 20
years, as a Range I offender. The messiness comes in the paperwork and the judgment
forms simply must be corrected to reflect the correct result.
Conclusion
For the foregoing reasons, the judgment of the post-conviction court is affirmed.
On remand, the post-conviction court should enter corrected judgment forms to reflect
the proper agreed sentences.
____________________________________
TIMOTHY L. EASTER, JUDGE
2
The imposition of fines totaling $12,550 are also consistently reflected by the record.
3
As examples, the judgments in case 18-181-2, counts 5 and 6, indicate the amount of the
methamphetamine involved was over .5 grams and a sentence of 10 years for each count. The plea
transcript and plea documents evidence an amount less than .5 grams and a sentence of 6 years for each
Count. The judgments in case 18-183-2, counts 2 and 3, are not noted as merged as announced and
agreed to, arguably increasing Petitioner’s sentence by 10 years. The record also supports six separate
offenses dates (November 20, 22, 29, 2017, December 5, 2017, March 29, and April 3, 2018). According
to statements made by the assistant district attorney at the plea hearing, Petitioner was on bond when he
committed the offenses in case 18-182-2 (March 29, 2018) thus invoking mandatory consecutive
sentencing. This also appears to be the circumstance in case 18-184-2, which involves an offense
committed on April, 3, 2018. The mandatory sentencing alignments are not at all clear in all four cases as
reflected on the judgment forms.
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