Anthony Jerome Stokes v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1999 SESSION
April 23, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
ANTHONY JEROME STOKES, * C.C.A. No. 03C01-9710-CR-00477
Appellant, * HAMILTON COUNTY
VS. * Honorable Douglas A. Meyer, Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
For Appellant: For Appellee:
Rebecca Garren Parker, Esq. John Knox Walkup
118 Lee Parkway Drive, Suite 201 Attorney General & Reporter
Chattanooga, TN 37421
Ellen H. Pollack
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243
C. Leland Davis
and
Caldwell Huckabay
Assistant District Attorneys General
City and County Courts Building
Chattanooga, TN 37402
OPINION FILED:___________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The petitioner, Anthony Jerome Stokes, appeals the trial court's denial
of his application for post-conviction relief. In this appeal of right, he presents two
issues for review: (I) whether the trial court erred by concluding that the guilty pleas
of the petitioner were made knowingly and voluntarily and (II) whether the petitioner
received the ineffective assistance of counsel.
We affirm the judgment of the trial court.
On June 15, 1995, the petitioner entered pleas of guilt to first degree
murder and second degree murder. As part of the plea agreement, the state
withdrew its request for the death penalty and voluntarily dismissed an especially
aggravated robbery charge. The trial court imposed a Range II, thirty-year sentence
for second degree murder and a consecutive sentence of life for the first degree
murder.
In his petition for post-conviction relief, the petitioner contended that
his guilty pleas were unlawfully induced by his trial counsel who placed him in fear of
the death penalty. He also argued that his pleas were not knowingly entered
because he was taking medication at the time of the plea and because the plea
agreement was amended without explanation after the petitioner signed it. Further,
the petitioner claimed that his counsel mistakenly described the submission hearing
as only a "practice run," failed to file any motions to suppress illegally obtained
evidence, and erroneously advised that his guilty plea could be withdrawn for any
reason within thirty days. Finally, he contended that his conviction was based upon
evidence obtained pursuant to an unlawful arrest.
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At the post-conviction hearing, the petitioner testified that he wanted a
trial despite the urging of his counsel to enter a plea agreement. He claimed that his
trial counsel tried to convince the petitioner's family and friends to influence him to
plead guilty. The petitioner maintained that he pled guilty because trial counsel told
him on several occasions that he would "fry" if he went to trial and that he was
persuaded to enter the plea only because his trial counsel advised that he could
automatically withdraw his plea within thirty days if he changed his mind.1
The petitioner also testified that his trial counsel informed him that he
would have a "practice run" the day before the guilty plea hearing. He contended
that an hour before the "practice run," one of his attorneys told him that the state
had agreed to the plea offer and wanted to proceed with the plea submission
hearing that day. The petitioner testified that he felt unprepared and misled and that
he did not have an opportunity to discuss the plea with his family. He insisted that
pain medication prevented him from thinking clearly. While he acknowledged
having stated during the submission hearing that he was not impaired, the petitioner
explained at the evidentiary hearing that he had been instructed by his counsel to
tell the trial judge what he wanted to hear. He insisted that his attorneys did not
explain a handwritten paragraph of the plea agreement, as follows: "I recognize that
I'm pleading out of my range on 198820. I am doing this in return for the State's
agreement to allow me to plead to 198820 as a murder in the second degree." The
petitioner claimed that but for these errors, he would not have pled guilty.
had suffered at the hands of arresting officers. He insisted that if his trial counsel
had succeeded in suppressing some evidence, he would not have pled guilty.
1
The petitioner alleges that on July 17, 1995, he filed a motion to withdraw his guilty plea but
he was never notified of the court's ruling. The petitioner states that the motion was filed under seal
by his attorne ys. The m otion is not in th e record .
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On cross-examination, the petitioner asserted that he wanted a new
trial. He admitted that he shot one of the victims during an argument, explaining
that he tried to hit her with the gun and the gun discharged. The petitioner denied
shooting the other victim and blamed a William Harrison for her murder. The
petitioner admitted during his evidentiary hearing that at the guilty plea proceeding,
he had informed the trial court that he entered his pleas voluntarily after consulting
with his attorneys and his mother. He acknowledged having said that his plea was
in his best interest and that his attorneys had answered all of his questions.
Attorneys Karla G. Gothard and Mary Ann Green of the public
defender's office and Attorney Howard Barnwell had been appointed to represent
the petitioner at trial. At the post-conviction evidentiary hearing, Attorney Gothard
testified that during an initial interview with the petitioner, an attorney from her office
had warned, "You are going to fry." Upon learning of the inappropriate statement,
she had removed that attorney from the case. Nonetheless, Attorney Gothard
recalled that she had a number of conversations with the petitioner about the
possibility that he would receive a death sentence. In her opinion, the case was
"prime" for a death penalty verdict because of racial overtones (the two victims were
white females and the petitioner is a black male) and because of the nature of the
wounds, which were close contact wounds to the head, one of which was execution
style. Attorney Gothard testified that her aim had been to convince the petitioner to
plead guilty to avoid the death penalty. Although she acknowledged having had
discussions with the petitioner's family members, she denied trying to have them
influence the petitioner. She remembered a five-hour meeting with the petitioner,
his attorneys, family members, and friends during which she had presented her best
assessment of the state's evidence against him. It was her opinion that the
petitioner and his family were unable to recognize the severity of the charges
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against the petitioner.
Attorney Gothard testified that until just before the plea, she also
believed there would be only a "practice run" on Thursday and that, on Friday, when
the victims' families could attend, the submission hearing would take place. On
Thursday, however, the assistant district attorney informed her that the victims'
family members were present and wanted to proceed with the plea that afternoon or
else proceed to trial. When Attorney Gothard told the petitioner to prepare to enter
his plea that day, he asked to speak to his mother first. Attorney Gothard preferred,
however, that he not speak to his mother:
I felt like his mother was really, not really very capable of
properly advising him, and he would talk to her and she
would ... tell us, "I've prayed about it and things are going
to work out okay. He's not going to spend any time in
jail." And I didn't want [the petitioner] to talk to her again.
Nevertheless, Attorney Gothard contacted the petitioner's mother as requested.
She attended the plea hearing. As Attorney Gothard and the petitioner waited for
the petitioner's mother to arrive, the prosecutor had informed the trial court that they
could continue the proceeding until the next day, if necessary. Attorney Gothard
preferred that the plea be "now or never ... we needed to go ahead ...." Attorney
Gothard identified the plea agreement and the handwriting of her co-counsel Mary
Ann Green. She stated that the language regarding the petitioner pleading out of
his range would have been initialed had it been added after the petitioner signed the
form. While she could not recall how much explanation had been provided to the
petitioner regarding the terms of the plea agreement, Attorney Gothard did
remember that there were many discussions among counsel and the defendant as
to suppression of evidence. She testified that she had reviewed the videotaped
conversation with William Harrison and concluded that there were no issues which
would lead to a more favorable result for the petitioner. She testified that she never
discussed withdrawal of the guilty plea with the petitioner but did recall a
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conversation in which Attorney Barnwell had mentioned waiting thirty days or
"holding your breath for thirty days until it became final." Although she intended to
caution the petitioner that withdrawal of a plea was unlikely, she conceded that she
had not done so.
Muchaka Am'al Zukinta, an inmate at the Bledsoe Regional
Correctional Facility, testified that petitioner's trial counsel, Attorney Green, had
asked him to speak to the petitioner about Islam because the petitioner had
converted to Islam and had spiritual questions about entering guilty pleas. He
stated that it appeared to be counsel's aim that he convince the petitioner to plead
guilty.
Attorney Green testified that she had tried to educate the petitioner
and his family about the reality of the death penalty. She stated that based upon all
the facts she was able to ascertain, she thought the petitioner should plead guilty.
She denied having told the petitioner that he would "fry" but was aware that
someone else in her office had used that term. Attorney Green agreed that the
state provided very little notice that the offer of a "practice run" had been withdrawn.
She stated that when she heard that the plea was to be entered on Thursday rather
than Friday, she immediately tried to contact the petitioner's family. She
acknowledged that the prosecutor had warned that if the petitioner did not enter a
plea that day, he would have to face trial. She testified that she had no recollection
of anyone advising the petitioner that he could withdraw the guilty plea within thirty
days. Attorney Green denied pressuring the petitioner into accepting the terms of
the plea and contended that she was unconvinced that the petitioner needed to
enter a guilty plea until she and the defense team had completed their investigation.
She maintained that at the time of the plea, the defense team was prepared for trial.
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Attorney Barnwell testified that defense counsel conducted a thorough
investigation. He denied that the defense team ever approached the case from the
standpoint that the petitioner was guilty and there was no choice other than a guilty
plea. He stated that as the investigation progressed, the team reached a general
consensus that if the petitioner proceeded to trial, he would be convicted and
sentenced to death. He had arranged for the petitioner to talk with Attorney John
Oliva of the Capital Case Resource Center about conditions on death row but the
petitioner seemed to know as much or more about death row than Attorney Oliva.
Attorney Barnwell testified that the petitioner had agreed at an earlier point to enter
a plea agreement but at the last moment, he had refused to proceed. Afterward and
in the presence of the petitioner, Attorney Barnwell had commented, "He has made
a decision. If that is his decision, we will give him the best damn defense that we
can, but in my opinion, he's wanting to die." He remembered that after several days
passed during which the defense team did not have contact with the petitioner, the
petitioner telephoned the public defender's office and indicated that he wanted to
enter a plea. He recalled Attorneys Gothard and Green explaining the terms of the
various proposed plea agreements to the petitioner in "painstaking[]" detail.
Attorney Barnwell stated that the public defender's office had been very thorough in
their investigation and preparation of the case. He denied having informed the
petitioner that he would be permitted to withdraw his plea within thirty days.
Attorney Barnwell did, however, acknowledge that he may have said, "we can hold
our breath until we get to court."
The trial court denied the petition for post-conviction relief in pertinent
part, as follows:
I Unlawfully Induced Guilty Plea
[P]etitioner telephoned the Public Defender's Office, ... a
few days before his plea, and said "I want to plead
guilty[."] None of the attorneys had spoken to him in two
to three days. He was not under pressure to plead guilty
at that time.
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The transcript of the guilty plea hearing clearly
shows that petitioner was freely and voluntarily waiving
his right to a jury trial and that he knew and understood
what he was doing. The medication he was taking did
not affect his reasoning. Months before, upon
questioning by the court, petitioner had withdrawn his
proposed guilty plea. If he had not wanted to plead guilty
on June 15, 199[5], he knew how to stop it.
Gothard felt she had not "legally" pressured the
petitioner to plead guilty, but that morally she may have
invaded his province .... Green and Barnwell do not feel
that they pressured him into pleading guilty. They and
Gothard explored every possible issue to raise in his
defense. Green and Barnwell felt they had given
petitioner an opportunity to make an informed decision.
II Evidence from an Unlawful Arrest
Other than petitioner's testimony, there was no
proof that the detectives abused, threatened, or
mistreated him in getting a statement from him, after his
arrest. His testimony was not convincing. Gothard said
video of his statement indicated he was talking freely.
William [] Harrison had worn a wire, but had not coerced
him. There was not evidence to suppress.
III Ineffective Assistance of Counsel
From the testimony of the t[h]ree attorneys, it is
obvious that the services they rendered were within the
range of competence demanded by attorneys in criminal
cases. They realized their heightened responsibilities in
a death penalty case. They and their investigators talked
to everyone they felt might have testimony to help their
defense, they obtained the assistance of experts. They
left no stone unturned and were prepared to try the case.
Petitioner told his attorneys at various times that
(1) he did not shoot either young lady[,] (2) he shot one
young lady, and (3) he shot both young ladies. During
this proceeding he admitted he shot April Stewart, but
that it was accidental. ...
[T]his [C]ourt finds that the petitioner has failed to
carry the burden of proving the asserted violation of his
rights. The Court finds that his plea was not coerced or
forced, that there was not unlawful evidence to suppress,
and that he was not denied effective assistance of
counsel.
I
The petitioner initially contends that his plea was neither knowing nor
voluntary because his trial counsel misled him with a "practice run" and because he
did not understand that he was pleading as a Range II offender to second degree
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murder.
Under our statutory law, the petitioner bears the burden of proving his
allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On
appeal, the findings of fact by the trial court are conclusive and will not be disturbed
unless the evidence contained in the record preponderates against them. Brooks v.
State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the
petitioner to show that the evidence preponderates against those findings. Clenny v.
State, 576 S.W.2d 12 (Tenn. Crim. App. 1978).
In Boykin v. Alabama, 395 U.S. 238 (1969), the United States
Supreme Court ruled that defendants should be advised of certain of their
constitutional rights before entering pleas of guilt. Included among those required
warnings are the right against self-incrimination, the right to confront witnesses, and
the right to a trial by jury. Id. at 243. The overriding Boykin requirement is that the
guilty plea must be knowingly and voluntarily made. Id. at 242-44. If the proof
established that the petitioner was aware of his constitutional rights, he is entitled to
no relief. Johnson v. State, 834 S.W.2d 922, 926 (Tenn. 1992). "[A] plea is not
'voluntary' if it is the product of '[i]gnorance, incomprehension, coercion, terror,
inducements, [or] subtle or blatant threats ....'" Blankenship v. State, 858 S.W.2d
897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43).
Initially, the petitioner asserts that his plea was neither knowing nor
voluntary because his attorneys "tricked" him by assuring him the proceeding was a
"practice run," when in actuality, the proceeding was real. The trial court found that
the petitioner knew and understood his actions in entering the guilty plea. Implicit in
the trial court's findings is that counsel did not trick the petitioner with the concept of
a "practice run." The trial court concluded that if the petitioner had decided that he
9
did not want to enter guilty pleas, he could have so informed the court, just as he
had done on a previous occasion. The petitioner acknowledged during the
evidentiary hearing that he did not feel he was "tricked" but hinted that he had been
misled. His attorneys testified that they were surprised when the state withdrew its
offer of a "practice run" and demanded immediate acceptance of the plea
agreement. In our view, the petitioner has failed to meet his burden of showing that
the evidence preponderates against the trial court's findings.
Secondly, the petitioner claims that his plea was not knowingly entered
because he did not understand the handwritten paragraph pertaining to pleading out
of his range. Although Attorney Gothard could not recall how much explanation had
been provided to the petitioner regarding this provision, she did testify that if the
paragraph had been added after the petitioner signed it, her custom was to have the
changes initialed. Attorney Barnwell testified that Attorneys Gothard and Green
explained the agreement to the petitioner in painstaking detail. Moreover, at the
guilty plea proceeding, the trial court explained to the petitioner that the plea
agreement was outside of his range, an acceptable practice. The petitioner knew
that the state had agreed to reduce the charge of first degree murder to second
degree murder and dismiss the aggravated robbery charge in return for his guilty
plea and was advised that his sentence for second degree murder would be thirty
years. The petitioner acknowledged in the trial court that he understood he would
likely serve ten and one-half years for second degree murder, which is thirty-five
percent of the sentence. From all of this, we must conclude that the record supports
the trial court's conclusion that the petitioner entered a knowing and voluntary plea.
II
Next, the petitioner maintains that the trial court erred by determining
he had been provided with effective assistance of counsel. He contends that his
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attorneys were ineffective because they did not file any motions to suppress
evidence despite discussing such options. He also claims that Attorney Barnwell
erroneously advised that he had the option to withdraw his guilty plea within thirty
days of its entry.
In order for the petitioner to be granted relief on grounds of ineffective
counsel, he must establish that the advice given or the services rendered were not
within the range of competence demanded of attorneys in criminal cases and that,
but for his counsel's deficient performance, the result of his trial would have been
different. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); Strickland v.
Washington, 466 U.S. 668, 687 (1984). This two-part standard, as it applies to
guilty pleas, is met when the petitioner establishes that, but for his counsel's errors,
he would not have pled guilty and would have insisted on a trial. Hill v. Lockhart,
474 U.S. 52, 59 (1985).
Here, the petitioner testified that arresting officers beat and abused
him in order to secure a confession and that his defense counsel failed to file
motions to suppress this evidence. Attorney Gothard testified that while they had
discussed filing motions to suppress, she had ultimately concluded that there were
no meritorious issues to address. The trial court found the petitioner's testimony
unreliable and accredited that of Attorney Gothard. The record does not
preponderate otherwise.
The petitioner also contended that one of his attorneys advised him he
could withdraw his guilty plea within thirty days under Rule 32, Tenn. R. Crim. P.
His attorneys, however, denied that any such statement was made. The trial court
determined that the services rendered by petitioner's counsel were within the
necessary range of competence, that the attorneys realized they had "heightened
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responsibilities" due to the nature of the charges, and that they had thoroughly
investigated and prepared his defense. Implicit in these findings is that the trial
court rejected the petitioner's assertion that he was misadvised of the law governing
the withdrawal of his guilty plea. From all of this, it is our view that the petitioner has
been unable to demonstrate that the evidence preponderates against the finding
made by the trial court that he had been represented within professional guidelines.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
Norma McGee Ogle, Judge
_____________________________
John K. Byers, Senior Judge
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