Mozella Newson v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
January 10, 2006 Session
MOZELLA NEWSON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. P-27349 John P. Colton, Jr., Judge
No. W2005-00477-CCA-R3-PC - Filed July 11, 2006
The Appellant, Mozella Newson, appeals the Shelby County Criminal Court’s denial of her petition
for post-conviction relief. Following a transfer hearing, Newson, who was fourteen years old at the
time of the crimes, was transferred from the juvenile court to the Shelby County Criminal Court to
be tried as an adult. She subsequently pled guilty to carjacking, especially aggravated robbery, and
two counts of especially aggravated kidnapping, for which she received an effective fifteen-year
sentence. On appeal, Newson argues that she was denied her Sixth Amendment right to the effective
assistance of counsel, specifically arguing that the attorney representing her during the transfer
hearing was ineffective by: (1) failing to advise the juvenile court of Newson’s age; (2) failing to
challenge the transfer order which stated that Newson was sixteen years old or older; (3) failing to
present any favorable evidence at the transfer hearing which might have prevented her transfer; (4)
failing to object to the identification procedure employed at the transfer hearing; and (5) failing to
advise Newson of her right to appeal the juvenile court’s decision to transfer the case. After review,
we conclude: (1) Newson’s subsequent guilty pleas waived all issues regarding guilt; and (2)
Newson’s failure to prepare a complete record precludes review of her allegations of deficient
performance which resulted in her transfer to the criminal court. Accordingly, the judgment of the
post-conviction court is affirmed.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN , JJ., joined.
Lee Gerald, Memphis, Tennessee, for the Appellant, Mozella Newson.
Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Jack Irving, Assistant District Attorney General,
for the Appellee, State of Tennessee.
OPINION
Factual Background
Sometime between the late hours of December 31, 1999, and the early morning hours of
January 1, 2000, the Appellant, age fourteen, along with two co-defendants, Jermaine Bishop, age
twenty-one, and Nesha Newson, age sixteen, participated in the carjacking, robbery, and kidnapping
of Bryan Morris and Holly Richardson in Memphis. Testimony at the post-conviction hearing and
from the proceedings in a co-defendant’s case indicate that the Appellant, armed with a handgun,
held the gun on Richardson while Richardson was robbed, beaten, and subjected to indignities by
the juvenile, Nesha Newson. The three were later apprehended, and the Appellant gave a statement
to police admitting her presence at the scene but minimizing her involvement in the criminal episode.
On January 19, 2000, a hearing was held in the Shelby County Juvenile Court at which the
Appellant was represented by retained counsel (“trial counsel”). Following the presentation of
evidence and argument, the referee waived the jurisdiction of the court and transferred the Appellant
to the Shelby County Criminal Court to be prosecuted as an adult. No appeal was taken with regard
to the transfer.
On January 23, 2001, the Appellant was indicted by a Shelby County grand jury for
carjacking, two counts of especially aggravated kidnapping, aggravated robbery, and especially
aggravated robbery. The Appellant discharged trial counsel and retained another attorney to
represent her in the criminal court proceedings. On September 23, 2002, the Appellant entered into
a plea agreement, whereby she pled guilty to carjacking, two counts of especially aggravated
kidnapping, and especially aggravated robbery. In exchange, the Appellant received fifteen-year
sentences for each of the kidnapping and robbery convictions and an eight-year sentence for the
carjacking conviction. All sentences were ordered to be served concurrently, resulting in an effective
fifteen-year sentence.
On May 13, 2003, the Appellant filed a pro se petition for post conviction relief alleging,
among other grounds, ineffective assistance of counsel with regard to both her counsel at the juvenile
hearing and counsel during the guilty plea process. Post-conviction counsel was appointed, and an
amended petition was filed on August 20, 2004. A post-conviction hearing was conducted on
October 15, 2004, at which the Appellant, her mother, a Department of Children’s Services
employee, Pastor Ralph White, and both of the Appellant’s attorneys testified.
The Appellant testified that her family retained trial counsel to represent her following her
initial detention. According to the Appellant, she met with trial counsel only one time prior to the
hearing, at which time she informed counsel of her age and provided him with information regarding
her educational background and school activities. Both the Appellant and her mother testified that
trial counsel failed to inform the juvenile court of the Appellant’s age or present any proof with
regard to her educational status, academic grades, lack of prior misconduct, or lack of gang activity
in an attempt to prevent her transfer as an adult. Moreover, she asserts that trial counsel failed to call
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available character witnesses from her school or church or to introduce evidence of her alleged minor
role in the commission of these offenses. Additionally, she contends that trial counsel did not allow
her to testify at the transfer hearing, thereby denying the court the opportunity to judge her
credibility, and failed to present proof with regard to her suitability for various juvenile rehabilitative
programs. Both the Appellant and her mother testified that the victim, Holly Richardson, was unable
to identify the Appellant at the hearing and that trial counsel failed to object when the prosecutor
pointed to the Appellant. Furthermore, trial counsel failed to object to the transfer order, which
reflected that the Appellant was “sixteen years or more of age.” Both the Appellant and her mother
also testified that trial counsel failed to inform them of the right to appeal the juvenile court’s
decision to transfer.
Trial counsel testified that he had practiced in the juvenile court of Shelby County for
approximately forty years. He stated that he did not present evidence of the Appellant’s academic
record or lack of delinquent behavior because this information would have been contained in the
“social file,” which is prepared by a juvenile probation officer and provided to the court. However,
trial counsel did testified that he had personally interviewed the Appellant’s probation officer to
confirm that she had no prior record of delinquency and had not posed disciplinary problems in the
school she attended. Moreover, he asserted that he had reviewed the facts of the case with the
Appellant who told him, as well as the police in her statement, that she had limited participation in
the crimes. However, upon further discussions with the prosecuting attorney, trial counsel learned
that the Appellant’s version of the events was somewhat contradicted by the victim’s statements that
it was the Appellant who held a gun on the victims, allowing the crimes to be accomplished. Trial
counsel testified that he did cross-examine the victim thoroughly at the transfer hearing in order to
challenge her credibility and argued to the court that the Appellant should not be transferred based
upon her age, the lack of credibility of the evidence, and that she possessed the potential for
rehabilitation. However, trial counsel testified that, based upon his past experiences in the juvenile
court, he believed the facts of the case alone were sufficient to transfer the case to the criminal court.
Trial counsel further explained that he did not present evidence of possible disciplinary
alternatives within the juvenile court system as the court was aware of these alternatives and was in
possession of the Appellant’s background information contained in the “social file.” With regard
to the transfer order, which states that “the Court finds that said child was 16 years or more of age
at the time of the alleged conduct,” trial counsel believed that this was simply a “typographical error”
in the form order. With regard to the right to appeal, trial counsel stated that he discussed the
Appellant’s right to appeal the transfer order with the Appellant’s mother; however, she failed to
personally contact him about this issue, as he had requested, and that the time to appeal expired.1
The post-conviction court took the matter under advisement and filed an order on January
6, 2005, denying the petition. This appeal followed.
1
The Appellant’s counsel, during the guilty plea proceedings, also testified at the post-conviction hearing, as
the Appellant was initially alleging ineffective assistance of counsel during the guilty plea process as well. The
ineffectiveness of counsel at the guilty plea hearing, however, was not raised as an issue on appeal.
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Analysis
On appeal, the Appellant asserts that the post-conviction court erred in finding that she
received the effective assistance of counsel during her juvenile proceedings. She specifically asserts
that trial counsel was ineffective in that he: (1) failed to advise the juvenile court of the Appellant’s
age; (2) failed to challenge the transfer order which stated that the Appellant was sixteen years or
older; (3) failed to present any favorable evidence at the transfer hearing which might have precluded
her transfer; (4) failed to object to a suggestive identification procedure employed by the State at the
transfer hearing; and (5) failed to advise the Appellant of her right to appeal the juvenile court’s
transfer decision.
A. Jurisdiction of the Juvenile Court
The juvenile court has original jurisdiction over children who are alleged to be delinquent.
Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006); State v. Hale, 833 S.W.2d 65, 66 (Tenn. 1992);
T.C.A. § 37-1-134(a) (2003). Section 37-1-134(a)(1)-(4) provides the circumstances in which a
juvenile court “shall” transfer a juvenile accused of conduct that constitutes a criminal offense to the
criminal court to be tried as an adult. Howell, 185 S.W.3d at 329. The juvenile must be at least
sixteen years old at the time of the offense or, if under sixteen, be charged with certain enumerated
offenses, as relevant here especially aggravated kidnapping and aggravated robbery, and be provided
with notice and a hearing. T.C.A. § 37-1-134(a)(1)-(3). During the hearing, the juvenile court must
find “reasonable grounds to believe” that the juvenile committed the delinquent act as alleged, that
the juvenile “is not committable to an institution for the mentally retarded or mentally ill,” and that
the community’s interests require legal restraint or discipline of the juvenile. Id. at (a)(4)(A)-(C).
Thus, a transfer hearing involves three inquiries: (1) whether probable cause exists; (2) whether the
juvenile is mentally disturbed; and (3) whether the juvenile is amenable to juvenile discipline. See
Id. Unless these grounds are found by the juvenile court, transfer from juvenile court to criminal
court is subject to the juvenile court’s discretion. Howell, 185 S.W.3d at 329. The authority of the
juvenile court to order a transfer under section 37-1-134, as well as the authority of the criminal court
to accept transfer and try the juvenile as an adult, has been described in Tennessee decisions as
“jurisdictional.” In this case, the Appellant challenges trial counsel’s performance with regard to
both the finding of probable cause and the finding that the Appellant was not amenable to juvenile
discipline.
B. Probable Cause Finding
As evidenced by the allegations in her petition, the Appellant challenges trial counsel’s
performance at her transfer hearing by asserting that trial counsel: (1) failed to challenge the transfer
order which stated that the Appellant was sixteen years or older;2 (2) failed to object to a suggestive
2
Although the transfer order provides in the body of the order that the Appellant was “16 years or more of age,”
the petition for delinquency, the detention order, the mittimus, and the transfer order clearly set forth on the top of the
(continued...)
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identification procedure employed by the State at the transfer hearing; and (3) failed to advise the
Appellant of her right to appeal the juvenile court’s transfer decision. These issues relate to the
probable cause determination and the Appellant’s guilt in the crimes.
It is clear from the record that the Appellant pled guilty to the offenses in which she was
involved. Once a guilty plea has been entered, effectiveness of counsel is relevant only to the extent
that it affects the voluntariness of the plea. Stated another way, deficient performance, standing
alone, irrespective of its egregiousness, is irrelevant to the challenge of a guilty plea, unless it can
be established that the deficient performance is causally connected to the voluntariness of the plea.
A plea of guilty, understandably and voluntarily entered on the advice of counsel, constitutes an
admission of all facts alleged and waiver of all nonjurisdictional and procedural defects and
constitutional infirmities, if any, in any prior stage of the proceedings. State v. David Alan Gold, No.
M2005-00186-CCA-R3-CD (Tenn. Crim. App. at Nashville, Mar. 28, 2006) (citing Shephard v.
Henderson, 449 S.W.2d 726, 729 (Tenn. 1969)). Here, however, no allegations have been asserted
that trial counsel’s deficient representation produced an involuntary or unknowing plea. Moreover,
there is nothing in the record to indicate that the Appellant’s guilty pleas were rendered vulnerable
based upon allegations of trial counsel’s deficient performance. Accordingly, because the Appellant
pled guilty to the crimes, any allegations of deficient performance within the probable cause
determination are waived by the Appellant’s voluntary pleas of guilty.
With regard to the issue that trial counsel was deficient for failing to advise the Appellant of
her right to appeal the juvenile court’s transfer ruling, we find this claim is without merit. There is
no civil or interlocutory appeal from a juvenile court’s ruling, transferring the juvenile to the criminal
court to be tried as an adult. T.C.A. § 37-1-159(d) (2003). An appeal to this court is provided only
following a conviction on the merits of the charge. T.C.A. § 37-1-159(f). The Appellant waived
appellate review of the juvenile court’s transfer by entering a plea of guilty without reserving the
question as provided for by Rule 37(b)(2), Tennessee Rules of Criminal Procedure. See State v.
Griffin, 914 S.W.2d 564, 567 (Tenn. Crim. App. 1995). Trial counsel was not representing the
Appellant at the time she entered her guilty pleas. Accordingly, any issue of deficient performance
in this regard is not attributable to trial counsel.
C. Amenability to Juvenile Discipline
Next, the Appellant argues that trial counsel’s performance was deficient with regard to the
waiver of jurisdiction by the juvenile court. She argues that if counsel had not been deficient in his
performance at the hearing, she would not have been transferred to the criminal court. She asserts
that had trial counsel introduced available proof at the hearing, the juvenile court would not have
transferred her to be tried as an adult. Specifically, she challenges trial counsel’s failure to: (1)
advise the juvenile court of the Appellant’s age; and (2) present any favorable evidence at the
2
(...continued)
page of each of these documents the Appellant’s age and date of birth, confirming that she was fourteen years of age at
the time of these proceedings.
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transfer hearing which could have precluded her transfer. These issues were not waived by her plea
of guilty.
To succeed on a challenge of ineffective assistance of counsel, the Appellant bears the burden
of establishing the allegations set forth in her petition by clear and convincing evidence. T.C.A. §
40-30-110(f) (2003). The Appellant 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 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984),
the Appellant must establish (1) deficient performance and (2) prejudice resulting from the
deficiency.
It is unnecessary for a court to address deficiency and prejudice in any particular order,
or even to address both if the petitioner makes an insufficient showing on either. Strickland, 466
U.S. at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish a
“reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland,
466 U.S. at 694, 104 S. Ct. at 2068).
Initially, we are constrained to note that our efforts to review the merits of the Appellant’s
allegations are frustrated by the lack of a complete record. Although the Appellant challenges
deficiency arising from the transfer hearing, she has failed to include virtually all relevant portions
of the juvenile proceeding, including the transcript of the juvenile hearing, which would confirm
whether or not these deficiencies occurred. Other than the transfer order, which is essentially a form
order, practically all of the records and documents from the juvenile proceedings are conspicuously
absent from the appellate record. This includes the transcript of the juvenile hearing, any exhibits
introduced, and the referenced “social file.” (DELETED)
Also absent is the transcript of the guilty plea hearing which would have provided a factual basis
regarding the Appellant’s admitted conduct, which is relevant to the statutory consideration of
whether the offenses were committed in an aggressive and premeditated manner.3 See T.C.A. § 37-
3
W e note that both trial counsel and counsel at the guilty plea hearing testified that, in their opinions, the
Appellant would have been transferred based solely upon the egregious facts of this case. Counsel, at the guilty plea
hearing, testified that the Appellant’s guilty plea was in large part motivated by the fact that her sixteen-year old co-
defendant, Nesha Newson, was convicted by a jury for her participation in the crimes and received a forty-five year
sentence in the Department of Correction.
Although the record fails to include essential facts relative to the case or to the Appellant’s participation in these
crimes, we are permitted to take judicial notice of the documents of this court. In particular, we take notice of the
affidavit of complaint, which was before this court in an appeal by the co-defendant, Nesha Newson Young. State v.
Nesha Young, W 2000-01252-CCA-R8-CD (Tenn. Crim. App. at Jackson, Aug. 15, 2000). The facts of the case, as
recited in the affidavit, are:
On Saturday, January 1, 2000, shortly after midnight, Holly Richardson and Bryan Morris
got lost trying to find their way back to a party in the area of Park and Massey. They stopped to call
(continued...)
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134(b)(4). In sum, essentially all that is before us is a petition alleging delinquency and a form order
from the juvenile court transferring the case to the criminal court.
It is the appellant's duty to prepare an adequate record for appellate review. Tenn. R. App.
P. 24. Our supreme court, in State v. Ballard, 855 S.W.2d 557 (Tenn. 1993), stated:
When a party seeks appellate review[,] there is a duty to prepare a record which
conveys a fair, accurate and complete account of what transpired with respect to the
issues forming the basis of the appeal. State v. Bunch, 646 S.W.2d 158, 160 (Tenn.
1983). Where the record is incomplete and does not contain a transcript of the
proceedings relevant to an issue presented for review, or portions of the record upon
which the party relies, an appellate court is precluded from considering the issue.
State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Absent the
necessary relevant material in the record an appellate court cannot consider the merits
of an issue. See T.R.A.P. 24(b).
Id. at 560-61. In the absence of an adequate record on appeal, this court must presume that the trial
court's actions below are correct and are supported by sufficient evidence. State v. Oody, 823
S.W.2d 554, 559 (Tenn. Crim. App. 1991). This issue is, therefore, waived. Because the Appellant
failed to present a complete record, we must presume that the juvenile court was in possession of
the “social file” (DELETED) and considered this evidence in reaching its decision to transfer the
Appellant to the
3
(...continued)
their friends from a pay phone on the lot of the Amoco station at 4161 W inchester, where they met 2
males and 2 females. Ms. Richardson and Mr. Morris asked these subjects for directions back to Park
and Ridgeway. The 2 females and one of the males got in their car, a white 1989 Acura Integra (TN#
652-PVJ), agreeing to direct them to Park and Ridgeway in exchange for a ride to a relative’s home.
Sometime between 1:15 and 1:40 a.m., one of the female suspects pointed a small chrome handgun
at them while the male suspect took control of the car. Both victims were beaten while being held at
gunpoint. At some point during this ordeal, M r. M orris was able to open a back door and jump out
of the moving car. He ran to a nearby location in the 3200 block of Keystone and called police. Ms.
Richardson tried to jump out of the vehicle when M r. Morris did, but was grabbed by the hair and
prevented from doing so. The beating to her then intensified. She was made to keep her hands at her
side while taking punches to the face. Her lips and tongue were burned with cigarettes and she was
made to swallow cigarette ashes. The suspects then backed the car up to a wooded area at the dead-
end of Royal Ridge and made Ms. Richardson get out of the car. At this point, the male suspect struck
her in the face, breaking her nose. She was then released after being made to take her clothes off. She
ran naked through the woods before receiving assistance from a homeowner in the 3700 block of Bluff
W ood Drive. Besides the vehicle, taken in this incident was a wallet with $8 cash and identification
from Bryan Morris and 3 rings and clothing from Holly Richardson. Mr. Morris received two black
eyes, scrapes to his hands, and a broken finger. Both of Ms. Richardson’s eyes were bruised and
swollen almost shut. She also had knots and bruises on her head, swollen and bruised cheeks, bruises
to her neck and arms, scratches on her arms and hands, and a broken nose.
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criminal court. Accordingly, we conclude that the Appellant has failed to carry her burden of
establishing by clear and convincing evidence the allegations of ineffective assistance of counsel.
Notwithstanding our finding of waiver, we are constrained to review the Appellant’s
allegation of trial counsel’s complete failure to challenge the State’s case or present available
evidence that would have protected the Appellant’s interests. The proof at the hearing established
that the Appellant was fourteen years old, had no prior history of delinquency, attended the eighth
grade, and was not a disciplinary problem at her school. We would agree that, because the Appellant
conceded her presence during the crimes and because the State’s proof placed her at the scene with
a gun which she used to accomplish serious crimes, the only viable strategy available to the
Appellant was that of seeking adjudication as a juvenile. However, trial counsel failed to introduce
any available evidence which could have precluded waiver of juvenile jurisdiction. Trial counsel
explained that he made no attempt to introduce evidence because it would have been futile, as it
would not have prevented transfer of the case in his opinion based solely on the egregious facts of
the case. We must reject trial counsel’s fatalistic reasoning. It is the obligation and duty of an
attorney to represent a client zealously and to serve as an advocate within the bounds of the law.
Tenn. R. Sup. Ct. 8, Canon 7. If evidence is relevant and germane to an issue, counsel should
present the evidence and advocate for his client unless reasoned trial strategy dictates otherwise.
Trial counsel’s decision not to introduce evidence in this case was not based upon trial strategy. We
can see no rationale or advantage to be gained by trial counsel’s decision to forego the presentation
of available evidence that the Appellant was amenable to disciplinary measures of the juvenile court,
particularly, in a case such as this where the only viable strategy available was that of preventing
transfer.
Moreover, with regard to trial counsel’s failure to call the Appellant as a witness at the
transfer hearing, counsel explained that he did so in order to prevent her testimony from being used
against her in later proceedings. This is clearly an incorrect statement of the law, as Tennessee Code
Annotated section 37-1-134(f)(1) expressly provides that statements made by a child at the transfer
hearing are not admissible against the child in the criminal proceedings following the transfer. For
these reasons, we are unable to conclude that trial counsel’s representation regarding the Appellant’s
amenability to juvenile discipline met the standard of objective reasonableness “under prevailing
professional norms,” notwithstanding our holding of waiver of the issue. See State v. Goad, 938
S.W.2d 363, 369 (Tenn. 1996).
CONCLUSION
Based upon the foregoing, the Shelby County Criminal Court’s denial of post-conviction
relief is affirmed.
___________________________________
DAVID G. HAYES, JUDGE
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