Marlon Sontay v. State of Tennessee

03/22/2022
THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 19, 2021
MARLON SONTAY v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2010-A-518 Jennifer Smith, Judge
No. M2020-01312-CCA-R3-PC
The Petitioner, Marlon Sontay, appeals from the Davidson County Criminal Court’s denial
of post-conviction relief from his convictions for rape of a child, aggravated sexual battery,
and rape. On appeal, the Petitioner contends that the post-conviction court erred by
denying relief on his ineffective assistance of trial counsel claim. We affirm the judgment
of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and D. KELLY THOMAS, Jr., JJ., joined.
Mark Kovach, Nashville, Tennessee, for the appellant, Marlon Sontay.
Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Assistant
Attorney General; Glenn R. Funk, District Attorney General; Tammy Meade, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
On September 14, 2011, a jury convicted the Petitioner of four counts of rape of a
child, two counts of aggravated sexual battery, and one count of rape. He received an
effective sentence of fifty years. See State v. Marlon Sontay, No. M2012-01579-CCA-R3-
CD, 2013 WL 3964119, at *1 (Tenn. Crim. App. July 31, 2013), perm. app. denied (Tenn.
Dec. 30, 2013). At trial, the victim, the Petitioner’s niece, testified that the abuse occurred
during the summer between her fifth and sixth grade years when she was ages twelve and
thirteen and the Petitioner lived with her and her family. Id. The trial evidence showed
the following:
The victim explained that the first inciden[t] of abuse took place when
her mother was in Houston. [The Petitioner] had been drinking and came
into the victim’s bedroom, touched her breasts and leg, and tried to l[ie] down
with her on her bed. The victim told [the Petitioner] to leave. He complied.
A few days later, [the Petitioner], the victim, and the victim’s younger
sister were at home alone. [The Petitioner] took the victim to her bedroom
where he undressed her, got on top of her, and put his penis inside her vagina.
The victim asked him why he was having sex with her, and he responded that
“he couldn’t do it with anybody else.”
The next incident occurred one day early in the school year when the
victim was home sick from school. [The Petitioner] again took her to her
bedroom and put his penis inside her vagina. She asked him to stop. He
refused.
On yet another occasion, the victim was asleep in her room. She
awoke to find [the Petitioner] in her room. He tried to put his penis in her
“behind.” He managed to get his penis in “a little bit.”
Shortly before the victim’s thirteenth birthday, [the Petitioner] woke
the victim up in the middle of the night. He kissed her vagina and spit on it
to make his penis go in easier.
There was one occasion during which [the Petitioner] asked the victim
to come to his room to play video games on his computer. Once the victim
was in his room, [the Petitioner] put his penis inside her vagina.
The abuse stopped after the victim’s parents came home one day to
find [the Petitioner] in the victim’s bathroom. His clothing was on the floor
of the victim’s bedroom. The victim’s father . . . threw [the Petitioner] out of
the house and contacted police.
Id. at *2.
The Petitioner filed a pro se petition for post-conviction relief. Counsel was
appointed and filed an amended petition, alleging that the Petitioner received the
ineffective assistance of trial counsel by counsel’s failure to file a motion to sever the seven
counts in the Petitioner’s indictment, by counsel’s failure to file for a bill of particulars
related to the seven counts, and by counsel’s failure to request specific jury instructions
regarding attempted rape.
-2-
At the post-conviction hearing, trial counsel testified that he discussed with the
Petitioner whether he should file a motion to sever the offenses. Counsel said he told the
Petitioner he did not think filing the motion was a good idea because the trial court would
likely deny the severance. Counsel said he told the Petitioner that if the court granted the
motion to sever, the Petitioner was more likely to get consecutive sentences than if the
Petitioner proceeded with one trial for all seven offenses. Counsel said he considered
whether evidence of one offense could be used as propensity evidence regarding the other
offenses but decided that “more harm than good would come” from having the offenses
severed and that he did not see a “strategic benefit” to severance. Counsel said that he
considered whether the offenses appeared to be part of a common scheme or plan. Counsel
explained that the offenses included the same victim, the same house, the same room, and
“the same issues” for each offense.
Trial counsel testified that he did not request a bill of particulars from the prosecutor.
He explained that the indictment included a general time frame for the offenses and that
the prosecutor told him the dates and times that would be included if he filed for a bill of
particulars. Counsel said that he discussed with the Petitioner the “pros and cons” of
requesting a bill of particulars. When asked if he considered that requesting a bill of
particulars was an investigative technique to gather more information, counsel said that
had he requested a bill of particulars the Petitioner might have been able to call a “witness
or two.” Counsel said that he did not think his failure to request a bill of particulars was
detrimental to the defense because the Petitioner’s defense was that the offenses never
occurred. Counsel explained that regardless of when the offenses occurred, the Petitioner
was not present. Counsel explained that the Petitioner said he was in Atlanta during one
of the offenses. Counsel also said that the defense theory was “evolving from time to time”
and that he saw no tactical advantage to requesting a bill of particulars.
Trial counsel acknowledged that he did not request lesser included offense
instructions for the rape offense based on anal penetration and for the rape offense based
on the Petitioner’s kissing the victim’s vagina on the basis that the victim’s trial testimony
indicated there may have been no penetration during these two offenses. Counsel said that
reflecting back on the trial “possibly” a basis existed to ask the trial court for a jury
instruction for attempted rape.
On cross-examination, trial counsel testified that the Petitioner’s statement to the
police was a “major hurdle” for the defense. Counsel said that during the Petitioner’s
recorded statement, the Petitioner admitted to “anally raping” and “fondling” the victim.
Counsel said that he received discovery from the State and that he met with the Petitioner
multiple times. Counsel said that all of his decisions throughout the trial were tactical.
-3-
The Petitioner testified1 that trial counsel met with him once at court and once at the
jail. He said counsel sent an associate attorney to visit the Petitioner a second time in jail.
The Petitioner said that the time counsel visited him in jail, counsel “threaten[ed]” the
Petitioner and told the Petitioner he would “die in jail” if he did not accept the State’s plea
offer. The Petitioner said counsel also told him that he “couldn’t do anything in [the
Petitioner’s] case” based on counsel’s previous experience as an assistant district attorney
and that the State would “give him more than one hundred years.” The Petitioner said that
counsel never wanted to help him and that “they” could not agree on whether to accept the
State’s offer.
The Petitioner testified that trial counsel did “not completely” discuss the indictment
and the charges with him. The Petitioner said that counsel did not review discovery with
him and that he never discussed any of the specific dates and places where the offenses
occurred. The Petitioner said that he gave counsel a list of witnesses to contact but that
counsel never communicated with them. The Petitioner said that counsel never discussed
severance, a bill of particulars, or jury instructions.
On cross-examination, the Petitioner said that trial counsel told him the case would
be difficult because the Petitioner confessed to the police. The Petitioner also agreed that
his case was difficult because during a telephone call to the victim’s mother, the Petitioner
confessed to her. The Petitioner said he reviewed the discovery provided by counsel.
In a written order denying relief, the post-conviction court found that trial counsel’s
performance was not deficient for his failing to file a motion to sever and that the Petitioner
was not prejudiced. The court reasoned that the offenses could reasonably be deemed part
of a larger, continuing plan or scheme, or conspiracy because each offense was committed
against the same victim; the offenses occurred in the same location while the victim’s
parents were away; and all of the offenses were committed for the Petitioner’s sexual
gratification. The court also found that counsel’s belief that the severance would not have
been granted was reasonable and that his decision not to request a severance was a tactical
decision.
The post-conviction court found that trial counsel’s decision not to file a bill of
particulars was neither deficient nor prejudicial. The court credited counsel’s testimony
that he received information from the prosecutor regarding the specific sex acts and the
dates on which they occurred.
The post-conviction court found that trial counsel’s failure to request jury
instructions on the lesser included offense of attempted rape of a child did not prejudice
1
The Petitioner testified with the assistance of an interpreter throughout the post-conviction hearing.
-4-
the Petitioner. The court found that the victim’s trial testimony that the Petitioner’s penis
penetrated her anal opening “a little bit” and that the Petitioner “kissed [her] vagina” were
sufficient to establish the element of penetration regarding his convictions for rape of a
child by means of anal penetration and rape of a child by means of vaginal penetration.
The court also considered the Petitioner’s two statements admitting he had sexually
penetrated the victim in each incident of rape of a child. The court reasoned that the
Petitioner’s trial strategy was to maintain that no sexual contact with the victim occurred,
which was not consistent with a conviction for a lesser included offense. The court
reasoned that the jury heard the Petitioner’s two incriminating statements along with the
victim’s trial testimony and determined that the Petitioner was not entitled to relief on this
issue.
Because the post-conviction court found that counsel’s performance did not fall
below an objective standard of reasonableness or that the Petitioner was not prejudiced by
any alleged deficiency, the court denied relief. This appeal followed.
On appeal, the Petitioner contends that the post-conviction court erred by
concluding that the Petitioner received the effective assistance of trial counsel. The
Petitioner argues that he received the ineffective assistance of counsel by trial counsel’s
failures to file a motion to sever the offenses, to request a bill of particulars, and to request
a jury instruction on the lesser included offense of rape of a child. The State responds that
the post-conviction court did not err by concluding that the Petitioner failed to prove his
ineffective assistance of counsel claim.
Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2018). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2018). A post-conviction court’s findings of fact are binding
on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997);
see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s
application of law to its factual findings is subject to a de novo standard of review without
a presumption of correctness. Fields, 40 S.W.3d at 457-58.
To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S.
364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland standard to
an accused’s right to counsel under article I, section 9 of the Tennessee Constitution. See
State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
-5-
A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services rendered
. . . are [not] within the range of competence demanded of attorneys in criminal cases.”
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 690. The
post-conviction court must determine if these acts or omissions, viewed in light of all of
the circumstances, fell “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of hindsight, may
not second-guess a reasonably based trial strategy by his counsel, and cannot criticize a
sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This deference,
however, only applies “if the choices are informed . . . based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). To establish the prejudice
prong, a petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.I. Severance
The Petitioner argues that trial counsel was ineffective by failing to file a motion to
sever the offenses. The Petitioner argues that none of the offenses were similar, except
that they were sexual offenses perpetrated against the same victim. He argues that the
offenses occurred far apart in time and could not be considered part of a common plan,
scheme, or design.
Tennessee Rule of Criminal Procedure 8(b) provides the following with regard to
joinder of offenses:
(b) Permissive Joinder of Offenses.—Two or more offenses may be
joined in the same indictment, presentment, or information, with each offense
stated in a separate count, or consolidated pursuant to Rule 13, if:
(1) the offenses constitute parts of a common scheme or plan; or
(2) they are of the same or similar character.
-6-
Tennessee Rule of Criminal Procedure 14(b) provides, in pertinent part:
(b) Severance of Offenses.—
(1) Involving Permissive Joinder of Offenses.— If two or more
I
offenses are joined or consolidated for trial pursuant to Rule 8(b), the
defendant has the right to a severance of the offenses unless the offenses are
part of a common scheme or plan and the evidence of one would be
admissible in the trial of the others.
When considering a motion to sever, the trial court
must conclude that: (1) the offenses are part of a common scheme or plan;
(2) evidence of each offense is relevant to some material issue in the trial of
all the other offenses, Tenn. R. Evid. 404(b)(2); and (3) the probative value
of the evidence of other offenses is not outweighed by the prejudicial effect
that admission would have on the defendant, Tenn. R. Evid. 404(b)(3); Spicer
[v. State, 12 S.W.3d 438, 445 (Tenn. 2000).]
State v. Denton, 149 S.W.3d 1, 13 (Tenn. 2004). Proof of a larger “plan or conspiracy . . .
contemplates crimes committed in furtherance of a plan that has a readily distinguishable
goal, not simply a string of similar offenses.” Id. at 15.
If a defendant seeks a severance of offenses that have been joined in the original
indictment pursuant to Rule 8(b), he has the burden to assert his right to a severance
pursuant to Rule 14(b)(1) or it will be waived. Spicer, 12 S.W.3d at 443. The trial court
must grant the motion for a severance unless the offenses involve a common scheme or
plan. Tenn. R. Crim. P. 14(b)(1).
In this case, trial counsel did not file a motion to sever because he believed the trial
court would likely deny the motion. Moreover, counsel testified his decision was tactical
and said that he believed the Petitioner was more likely to receive a lesser sentence if the
offenses were tried together. The offenses involved the same victim, the same location,
and the Petitioner’s sexual gratification. The offenses were part of a larger plan or
conspiracy, and evidence of each offense would be admissible at the trial of the other
offenses without being overly prejudicial. Counsel based his decision on an informed
strategy. The record supports the post-conviction court’s determination that the Petitioner
did not receive the ineffective assistance of counsel by counsel’s failure to file a motion to
sever the offenses. The Petitioner is not entitled to relief on this basis.
-7-
II. Bill of Particulars
The Petitioner argues that trial counsel was ineffective for failing to request a bill of
particulars. The Petitioner argues that the indictment only included the statutory charging
language and that he did not receive notice regarding the specific sexual acts, the time and
date of the incidents, and the location of the incidents.
Tennessee Rule of Criminal Procedure 7(c) provides that on “a defendant’s motion,
the court may direct the district attorney general to file a bill of particulars so as to
adequately identify the offense charged.” The purpose of a bill of particulars is to provide
the “defendant with information about the details of the charge against him if this is
necessary to the preparation of his defense[,]” to assure “that a defendant has an
opportunity to avoid prejudicial surprise at trial[,]” and “to preserve a plea against double
jeopardy. State v. Sherman, 266 S.W.3d 395, 408-09 (Tenn. 2008) (internal citations
omitted). “Information that may be required in the bill of particulars includes, but is not
limited to, details as to the nature, time, date, or location of the offense.” State v. Speck,
944 S.W.2d 598, 600 (Tenn. 1997) (citing State v. Byrd, 820 S.W.2d 739, 741-42) (Tenn.
1991)).
In this case, trial counsel testified that although the indictment was vague, the
prosecutor provided him with the necessary details regarding the charged offenses.
Counsel said that the prosecutor gave him all of the information that would have been
included in a bill of particulars. Moreover, counsel explained that the defense strategy was
that the Petitioner never committed the offenses. The trial court credited counsel’s
testimony that counsel received the necessary information to prepare adequately for trial.
The record supports the post-conviction court’s determination that the Petitioner did not
receive the ineffective assistance of counsel by counsel’s failure to request a bill of
particulars. The Petitioner is not entitled to relief on this basis.
III. Jury Instruction
The Petitioner argues that trial counsel was ineffective by failing to request an
instruction on criminal attempt as a lesser included offense of rape. The Petitioner argues
that because of the victim’s testimony that no penetration occurred when the Petitioner
attempted to penetrate her anal opening with his penis or when the Petitioner “kissed” her
vagina, an instruction on attempted rape was warranted.
A criminal defendant has “a right to a correct and complete charge of the
law.” Hanson, 279 S.W.3d at 280 (citing State v. Garrison, 40 S.W.3d 426, 432 (Tenn.
2000)). As a result, a trial court has a duty “to give proper jury instructions as to the law
governing the issues raised by the nature of the proceeding and the evidence introduced at
-8-
trial.” State v. Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013) (citing Dorantes, 331 S.W.3d
at 390); see State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975).
A defendant’s failure to request an instruction for a lesser included offense results
in waiver. T.C.A. § 40-18-110(c). “Failing to request lesser-included offense instructions
will not constitute deficient performance, however, if the decision was a matter of
strategy.” Moore v. State, 485 S.W.3d 411, 419 (Tenn. 2016) (citing Goad, 938 S.W.2d at
369).
In this case, trial counsel explained that his decision not to request a lesser included
offense instruction was strategic because a request for attempted rape would conflict with
the defense theory that the Petitioner did not commit any of the offenses. Moreover, the
Petitioner failed to show that he was prejudiced by counsel’s failure to request a jury
instruction for attempted rape. The victim testified that the Petitioner penetrated her
“behind” “a little bit” and that the Petitioner “kissed” her vagina. Moreover, the Petitioner
confessed to the rape of a child offenses to an officer and to the victim’s mother. This
evidence is sufficient to support the Petitioner’s convictions for rape of a child. See T.C.A.
§ 39-13-522(a) (“Rape of a child is the unlawful sexual penetration of a victim by the
defendant or the defendant by a victim, if the victim is more than three (3) years of age but
less than thirteen (13) years of age.”); see also T.C.A. § 39-13-501(7) (sexual penetration
is defined as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other
intrusion, however slight, of any part of a person’s body or of any object into the genital or
anal openings of the victim’s, the defendant’s, or any other person’s body, but emission of
semen is not required”). The record supports the post-conviction court’s determination
that the Petitioner did not receive the ineffective assistance of counsel by counsel’s failure
to request a jury instruction on the lesser included offense of attempted rape. The Petitioner
is not entitled to relief on this basis.
In consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.
_____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
-9-