Travis L. Lindsey v. State of Tennessee

09/18/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 25, 2020, at Jackson
TRAVIS L. LINDSEY v. STATE OF TENNESSEE
Appeal from the Circuit Court for Maury County
No. 25747 Stella L. Hargrove, Judge
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No. M2019-00287-CCA-R3-PC
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The Petitioner, Travis L. Lindsey, appeals the post-conviction court’s denial of his
petition for post-conviction relief in which he challenged his convictions for the sale of
0.5 grams or more of cocaine, the sale of 0.5 grams or more of cocaine within 1,000 feet
of a school, and his effective twenty-year sentence. On appeal, the Petitioner maintains
that trial counsel was ineffective in failing to fully advise him of the deadline by which he
could enter into a plea agreement with the State in order to avoid a trial. We conclude
that the Petitioner has failed to establish that he is entitled to relief, and we affirm the
judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ALAN E.
GLENN and CAMILLE R. MCMULLEN, JJ., joined.
Chelsea Nicholson (on appeal), Nashville, Tennessee, and Josh Morrow (at hearing),
Columbia, Tennessee, for the appellant, Travis L. Lindsey.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Brent A. Cooper, District Attorney General; and Adam Davis,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Trial Proceedings
The Petitioner was charged with the sale of 0.5 grams or more of cocaine within
1,000 feet of a school and the sale of 0.5 grams or more of cocaine as the result of two
controlled drug purchases conducted by the Columbia Police Department. On January
24, 2013, the trial court entered a scheduling order that was signed by both trial counsel
and the Petitioner and dated January 8th. The order set a “settlement date” of April 2nd
and provided:
Any case not settled by agreement by this date will be given a trial date as
soon thereafter as possible. After the case is docketed for trial, a negotiated
plea may be refused by the court and the case may only be resolved by trial
or by the entry of a plea of guilty to the indictment. In the later event, the
court will not be bound to accept any recommendation with regard to
sentencing.
During the appearance date on April 2nd, trial counsel requested that the case be
set for trial and informed the trial court that the State had made a plea offer. The trial
court stated, “Well, this is the last plea date.” Trial counsel acknowledged that he
understood and again requested a trial date. The trial court scheduled the trial for
September 17, 2013.
During a jury-out hearing at trial and at the sentencing hearing, the Petitioner
maintained that he was not given the opportunity to accept the State’s offer. He stated at
trial that he was to meet with trial counsel two weeks before trial to discuss the State’s
offer, but the Petitioner was arrested on federal charges and was unable to attend the
meeting due to his incarceration. The trial court informed the Petitioner that a scheduling
order, which was also signed by the Petitioner, set a plea deadline of April 2, 2013, and
that when the Petitioner did not enter into a plea agreement on April 2nd, the trial court
set the case for trial. The trial court explained that the court’s policy, generally, was “not
to take a plea and never take a plea, unless it’s unusual circumstances when I’ve got a
jury here.” The trial court stated “there are not pleas possible” beyond the April 2nd
deadline. The Petitioner maintained that the plea deadline was never explained to him
and that he did not understand the implications of declining to enter a plea agreement by
April 2nd.
Trial counsel informed the trial court that sometime before April, the State made a
plea offer of eight years at one hundred percent and that the Petitioner did not want to
accept the offer at that time. Trial counsel noted that the trial court would often accept a
guilty plea if presented one month or more prior to trial. Trial counsel stated that the trial
court might or might not have accepted the plea and that he had to proceed with a trial
before the trial court on prior occasions when his clients had declined to commit to a plea
agreement at an earlier date. Prior to trial, the Petitioner was arrested on federal charges
and was incarcerated in another facility. Trial counsel said that when he met with the
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Petitioner at the jail “the night before,” he explained to the Petitioner that he did not
believe that the trial court would accept a plea agreement at that point.
At the conclusion of the trial, the jury convicted the Petitioner of the sale of 0.5
grams or more of cocaine within 1,000 feet of a school and the sale of 0.5 grams of
cocaine. At the sentencing hearing, the Petitioner testified that he had wanted to accept
the State’s plea offer, that he had not wanted to procced to trial, and that he had not
understood that it was too late to accept the offer on the day of trial. He maintained that
he believed trial counsel had been attempting to negotiate a more favorable plea
agreement with the State.
In response to questioning by the trial court, trial counsel stated that the State
made a plea offer prior to the plea deadline in April but that the Petitioner did not agree to
accept the offer at that time. Rather, the Petitioner hoped that the State would make a
more favorable offer, but the State failed to do so. Trial counsel stated that the State
made the same offer after the plea deadline, that the Petitioner was arrested on federal
charges, and that once the Petitioner decided to accept the offer, it was too late.
The trial court imposed an effective twenty-year sentence. On direct appeal, the
Petitioner raised issues regarding the sufficiency of the evidence and the admission of
certain evidence. See State v. Travis Lindsey, No. M2015-01954-CCA-R3-CD, 2016 WL
5937835, at *1 (Tenn. Crim. App. Oct. 12, 2016). This court affirmed the trial court’s
judgments. See id.
Post-Conviction Proceedings
The Petitioner filed a pro se petition for writ of habeas corpus, alleging that trial
counsel was ineffective in failing to advise him regarding the plea deadline and in
allowing the deadline to pass while assuring him that he could still accept the State’s
offer. The post-conviction court entered an order treating the Petitioner’s petition as a
petition for post-conviction relief, finding that the Petitioner presented a colorable claim,
and appointing counsel to represent the Petitioner. The appellate record does not include
an amended petition.
During the evidentiary hearing, the Petitioner testified that he was indicted on the
charges in December of 2012, that he was released on bond, and that trial counsel was
appointed to represent him. The Petitioner stated that he first met with trial counsel at
trial counsel’s office in January of 2013. The Petitioner acknowledged that his signature
was on the scheduling order, which was entered in January and which set the plea
deadline as April 2, 2013, but he did not recall signing the order or the circumstances
under which he signed it. He did not recall reading the order or trial counsel reading it to
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him. The Petitioner stated that trial counsel never told him that April 2nd was the plea
deadline.
The Petitioner testified that he met with trial counsel to discuss the case “[a]t least
twice” prior to April 2nd. They reviewed the discovery from the State, which consisted
in part of two video recordings of the drug transactions. They discussed the Petitioner’s
criminal history, and trial counsel informed the Petitioner that he was facing a sentence of
fifteen to twenty-five years if convicted at trial and that the State had presented a plea
offer that included an eight-year sentence at one hundred percent. The Petitioner stated
trial counsel said he believed he could negotiate a more favorable offer because the
recordings did not show the exchange of money or drugs. The Petitioner stated that trial
counsel said he would meet with the prosecutor and inform the Petitioner of whether a
more favorable offer was obtained by the court date on April 2nd. The Petitioner
maintained that he told trial counsel that he did not want to go to trial.
The Petitioner testified that he and trial counsel met in the corridor of the court on
April 2nd and that trial counsel stated that he had not had the opportunity to speak to the
prosecutor about the case. According to the Petitioner, trial counsel told him that he
believed the State would offer a sentence of less than eight years and that he would set
the case for trial and continue negotiating with the State. The Petitioner stated that trial
counsel assured him that one more appearance date would be scheduled prior to trial and
that if trial counsel was unable to persuade the prosecutor to lower the offer, he would
“make sure you get your eight years before it gets too late.”
The Petitioner stated that trial counsel never told him that April 2nd was the plea
deadline and that the trial court was unlikely to accept a plea agreement once the trial had
been set. The Petitioner testified that had he been aware of this information, he would
have not allowed trial counsel to set the case for trial and would have accepted the State’s
eight-year offer. The Petitioner did not recall the trial court stating that the April 2nd
hearing was the plea deadline when trial counsel requested a trial date. The Petitioner
said that while he was standing at the podium with trial counsel, he told trial counsel that
he did not want to go to trial but that his statement did not appear in the transcript of the
hearing. The Petitioner maintained that he left court on April 2nd believing that he would
still be able to accept the State’s plea offer.
The trial was scheduled for September 17, 2013. The Petitioner testified that he
met with trial counsel in July and learned that the prosecutor declined to reduce the offer.
Trial counsel told him to come to his office on September 4th to sign the plea documents,
and trial counsel did not inform him that the trial court might not accept the plea. On
September 1st, the Petitioner was arrested on a federal charge and could not meet with
trial counsel again until the day before the trial. The Petitioner told trial counsel that his
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family had attempted to contact trial counsel for two weeks and asked him whether he
presented the plea documents to the trial court. The Petitioner said trial counsel informed
him that he had not had time to do so and that he did not believe the trial court would
accept a plea on the day of trial. The Petitioner maintained that when he came to court on
the day of trial, he believed that he was going to enter a guilty plea.
The State presented the testimony of trial counsel, who recalled that he met with
the Petitioner on three occasions prior to the April 2nd plea deadline. Trial counsel
reviewed the discovery with the Petitioner and noted that the Petitioner was facing a
sentence of fifteen to twenty-five years because one of the drug transactions occurred
within a drug-free school zone. Trial counsel testified that in February or March, he
received a plea offer from the prosecutor that included an eight-year sentence at one
hundred percent. He stated that he informed the Petitioner of the offer but that the
Petitioner rejected it. Trial counsel explained that the Petitioner was released on bond
and was not interested in going to jail on April 2nd to complete an eight-year sentence.
Trial counsel stated that he advised the Petitioner that he would attempt to negotiate a
more favorable offer but that he might not be able to do so. Trial counsel said he did not
promise the Petitioner that the State would make a more favorable offer or that the trial
court would accept a plea after the April 2nd court date. Trial counsel was familiar with
the trial court’s policy to decline to accept anything but an “open plea” once a case has
been set for trial, and he recalled representing a client in a prior case where the trial court
declined to accept a plea agreement entered into close to the date of the trial. He noted
that the trial court previously had accepted plea agreements once a trial date had been set
in some circumstances.
Trial counsel testified that once the Petitioner rejected the State’s offer, he would
have advised the Petitioner that the only other option was to set the case for trial. Trial
counsel stated that during the April 2nd hearing, the trial court informed the Petitioner on
the record that he would not be allowed to enter into a plea agreement following that
date. Trial counsel said that while he hoped he could negotiate a more favorable plea
agreement with the State, it was within the trial court’s discretion to accept the plea. He
did not know whether the transcript of the April 2nd hearing included the entire
interaction between the trial court and the Petitioner. Trial counsel explained that the
trial court often would address all the defendants in the courtroom at once and then return
to each defendant individually. Trial counsel believed the trial court had the Petitioner
sign the January scheduling order on April 2nd as an acknowledgment by the Petitioner
that there would be no further opportunity to enter into a plea agreement once the case
was set for trial.
Trial counsel testified that the Petitioner did not wish to accept the State’s plea
offer until he was arrested on federal charges in September 2013. Trial counsel met with
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the Petitioner shortly after his arrest during which the Petitioner told trial counsel that he
wanted to accept the plea offer. Trial counsel and the prosecutor spoke to the trial court
about the plea agreement, and the trial court informed them that it would not accept the
plea. Trial counsel met with the Petitioner the night before trial once the Petitioner was
transported to the local jail, and the Petitioner stated that he still wanted to enter into the
plea agreement. Trial counsel told the Petitioner that he did not believe that the trial
court would accept the plea but that there was a chance that the court might do so.
On cross-examination, trial counsel testified that he would have advised the
Petitioner on April 2nd that if he did not accept the plea offer on this date, the trial court
would set the case for trial and that the trial court’s policy was to only accept an open
plea to the indictment once the trial was set. Trial counsel stated that he would have
advised the Petitioner of the risk that the trial court would not allow him to enter into the
plea agreement at a later date. Trial counsel testified that the Petitioner stated both prior
to April 2nd and on April 2nd that he was not willing to accept the plea offer.
Trial counsel recalled that during the April 2nd hearing, the trial court reviewed
the paragraph of the scheduling order about the plea deadline and the fact that no pleas
would be accepted after the deadline. Trial counsel acknowledged that the exchange was
not in the transcript of the hearing but believed that it occurred during a portion of the
hearing that had not been transcribed. Trial counsel also believed the Petitioner knew
that the trial court would not accept a plea beyond the deadline based upon what both trial
counsel and the trial court told him. Trial counsel stated that while he continued to seek a
more favorable offer from the State in hopes that the trial court would accept the plea, he
never guaranteed the Petitioner that the trial court would accept it. Trial counsel believed
the trial court would have been more inclined to accept a plea agreement reached a few
months prior to trial than a plea agreement reached a few weeks prior to trial.
Trial counsel denied that the Petitioner told him in June or July of 2013 that he
wanted to accept the State’s plea offer. Trial counsel testified that the Petitioner did not
decide to accept the plea agreement until he was placed in federal custody. Sometime
between September 3rd and September 15th, trial counsel and the prosecutor had a
conference call with the trial court during which trial counsel informed the trial court that
the Petitioner wanted to enter a plea. Trial counsel stated that after meeting with the
Petitioner the night before trial, trial counsel again informed the trial court that the
Petitioner wished to accept the plea offer and explained that the Petitioner had been
arrested on federal charges. The trial court declined to accept the plea, and the case
proceeded to trial.
The post-conviction court entered an order denying the Petitioner’s claim that trial
counsel was ineffective in advising him regarding the plea deadline. The court found that
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trial counsel informed the Petitioner of the trial court’s order setting the last date on
which the court would entertain a plea agreement before setting the case for trial. The
post-conviction court noted that the Petitioner was present in the courtroom when the trial
date was set and that the trial court advised the Petitioner that it would not entertain a
plea agreement once the trial was set. The post-conviction court found that while the
transcript of the hearing did not reflect this exchange, “it is not unusual for the Court to
be speaking to multiple defendants on plea day and for the record to be incomplete.” The
post-conviction court credited trial counsel’s testimony that the Petitioner did not want to
accept the State’s plea offer until he was arrested on a federal charge in September of
2013. The post-conviction court found that the Petitioner’s testimony was not credible.
Accordingly, the post-conviction court denied the Petitioner’s request for post-conviction
relief.
ANALYSIS
The Petitioner asserts that trial counsel was ineffective in failing to adequately
advise him of the plea deadline and the trial court’s policy to reject plea agreements
reached following the deadline. The Petitioner maintains that as a result, he was not
given the opportunity to accept the State’s plea offer prior to trial and that he was forced
to proceed with a trial. The State responds that the Petitioner has failed to establish that
trial counsel’s advice regarding the plea deadline was deficient and that the Petitioner
would have accepted the State’s plea offer before the trial court set the case for trial. We
agree with the State.
The findings of fact made by a post-conviction court are conclusive on appeal
unless the evidence preponderates against them. Ward v. State, 315 S.W.3d 461, 465
(Tenn. 2010). This court may not substitute its own inferences for those drawn by the
post-conviction court, and questions concerning the credibility of witnesses, the weight
and value of the evidence, and the factual issues raised by the evidence are to be resolved
by the post-conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001).
A post-conviction court’s conclusions of law and determinations of mixed questions of
fact and law, such as whether a petitioner received ineffective assistance of counsel, are
reviewed de novo. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A petitioner is entitled to post-conviction relief when a conviction or sentence 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. The
petitioner bears the burden of proving the allegations of fact in the petition by clear and
convincing evidence. T.C.A. § 40-30-110(f). Evidence is clear and convincing when the
correctness of the conclusions drawn from the evidence admits no serious or substantial
doubt. Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009).
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The right to counsel is guaranteed by both the Sixth Amendment to the United
States Constitution and article I, section 9 of the Tennessee Constitution. Pylant v. State,
263 S.W.3d 854, 868 (Tenn. 2008). The right to counsel encompasses “the right to
‘reasonably effective’ assistance, that is, assistance ‘within the range of competence
demanded of attorneys in criminal cases.’” Id. (quoting Strickland v. Washington, 466
U.S. 668, 687 (1984)). In evaluating a claim of ineffective assistance of counsel, the
court must determine whether counsel’s conduct “‘so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a just
result.’” Felts v. State, 354 S.W.3d 266, 277 (Tenn. 2011) (quoting Strickland, 466 U.S.
at 686).
To show that relief is warranted on a claim of ineffective assistance of counsel, the
petitioner must establish both that counsel’s performance was deficient and that the
deficiency prejudiced the defense. Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007).
Deficiency requires showing that counsel’s errors were so serious “that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. To demonstrate deficiency, the petitioner must show that
counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms. Pylant, 263 S.W.3d at 868. Courts must make every
effort “‘to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.’” Felts, 354 S.W.3d at 277 (quoting Strickland, 466 U.S. at 689). The
reviewing court must begin with “the strong presumption that counsel provided adequate
assistance and used reasonable professional judgment to make all strategic and tactical
significant decisions.” Davidson v. State, 453 S.W.3d 386, 393 (Tenn. 2014).
In determining prejudice, the post-conviction court must decide whether there is a
reasonable probability that, absent the errors, the result of the proceeding would have
been different. Grindstaff, 297 S.W.3d at 216. “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Honeycutt, 54 S.W.3d
at 768 (quoting Strickland, 466 U.S. at 694). “That is, the Petitioner must establish that
his counsel’s deficient performance was of such a degree that it deprived him of a fair
trial and called into question the reliability of the outcome.” Finch, 226 S.W.3d at 316.
The standard in Strickland for determining whether a petitioner received effective
assistance of counsel applies during plea negotiations, as well as during trial. Missouri v.
Frye, 566 U.S. 134, 144-45 (2012); Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). Thus,
“during the plea bargain process, as at all critical stages of the criminal process, counsel
has the responsibility to render effective assistance as required by the Sixth Amendment.”
Nesbit v. State, 452 S.W.3d 779, 787 (Tenn. 2014) (citing Frye, 566 U.S. at 144-45;
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Harris v. State, 875 S.W.2d 662, 663, 665 (Tenn. 1994)). “Trial counsel has the duty to
‘promptly communicate and explain to the defendant all plea offers made by the
prosecuting attorney.’” Id. at 800 (quoting Frye, 566 U.S. at 145). Furthermore, “‘a
lawyer must abide by his client’s decision [to accept or reject a plea] only after having
provided the client with competent and fully informed advice, including an analysis of
the risks that the client would face in proceeding to trial.’” Id. (quoting Burt v. Titlow,
571 U.S. 12, 25 (2013) (Sotomayor, J., concurring)). When a petitioner contends that
trial counsel was deficient in the plea negotiation process, the petitioner has the burden of
showing “by a reasonable probability” that, but for trial counsel’s deficient performance,
(1) the petitioner would have accepted the plea offer; (2) the State would not have
withdrawn the plea offer; and (3) “the trial court would have accepted the terms of the
offer, such that the penalty under its terms would have been less severe than the penalty
actually imposed.” Id. at 800-01 (citing Lafler v. Cooper, 566 U.S. 156, 163-64 (2012)).
The evidence presented at the hearing established that prior to the plea deadline,
trial counsel met with the Petitioner, reviewed discovery with him, and discussed the
State’s plea offer and his potential sentencing exposure if convicted at trial. Although the
Petitioner contends that he informed trial counsel that he wished to enter a plea, the post-
conviction court found that the Petitioner’s testimony was not credible. Rather, trial
counsel testified that the Petitioner rejected the offer, and the post-conviction court found
that the Petitioner was aware of the plea deadline and the trial court’s policy to reject plea
agreements after the deadline expired. Both trial counsel and the trial court informed the
Petitioner of the deadline and the effect of his failure to accept the plea offer by the April
2nd deadline. The Petitioner also signed an order entered by the trial court that set forth
the plea deadline and the trial court’s policy.
Once the Petitioner rejected the plea offer, trial counsel’s only other option was to
set the case for trial. Trial counsel continued to negotiate with the State after the trial was
scheduled in the hope that the parties would reach an agreement far enough away from
the trial date that the trial court would accept the plea agreement. Trial counsel stated
that he never promised the Petitioner that the State would make a more favorable offer or
that the trial court would accept it. Despite trial counsel’s efforts, the Petitioner did not
decide that he wanted to accept the plea offer until he was arrested on federal charges less
than three weeks before trial. Trial counsel continued to advocate for the Petitioner by
approaching the trial court both shortly after the Petitioner’s arrest and on the day of trial
to request that the trial court accept the plea. However, the trial court declined to do so.
The evidence establishes that prior to the plea deadline, trial counsel provided the
Petitioner with competent and fully informed advice with respect to the State’s plea offer
and that the Petitioner declined the plea offer with knowledge of the plea deadline and the
trial court’s policy of rejecting pleas after the deadline. It was not until the Petitioner’s
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arrest on federal charges shortly before trial that he had second thoughts. By that time, it
was too late, and the trial court rejected the plea, which was certainly within the trial
court’s discretion. See Tenn. R. Crim. P. 11, Advisory Comm’n Cmt. (providing that a
trial court may “impose reasonable pretrial time limits on the court’s consideration of
plea agreements, a practice will which allow maximum efficiency in the docketing of
cases proceeding to trial on pleas of not guilty”); see also Brittany Scott Pye v. State, No.
M2011-01633-CCA-R3-PC, 2012 WL 6738392, at *7 (Tenn. Crim. App. Dec. 28, 2012)
(recognizing that “a trial court does not abuse its discretion by setting a deadline for
entering into a negotiated plea”); State v. Randell Murphy, No. W2011-00744-CCA-R3-
CD, 2012 WL 1656735, at *3 (Tenn. Crim. App. May 9, 2012) (concluding that the trial
court did not abuse its discretion by rejecting a plea agreement on the “eve of trial” and
after the plea deadline). Accordingly, we conclude that the Petitioner has failed to
establish that trial counsel was deficient and that, as a result, the Petitioner is not entitled
to relief.
CONCLUSION
We affirm the judgment of the post-conviction court denying the Petitioner’s post-
conviction relief petition.
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JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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