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Lovera v. State

January 4, 2000


The opinion of the court was delivered by: David G. Hayes, Judge

SEVIER COUNTY Hon. REX H. OGLE, Judge (Post-Conviction)



The appellant, Alicia Shayne Lovera, appeals from the trial court's denial of her petition for post-conviction relief. In November 1994, the appellant was charged with the first degree premeditated murder of her husband Kelly J. Lovera. A Sevier County jury found the appellant guilty of the offense charged. Prior to the sentencing hearing, the appellant, pursuant to a negotiated plea with the State, pled guilty to first degree murder in return for a sentence of life with the possibility of parole. The appellant filed a pro se petition for post-conviction relief, alleging, inter alia, ineffective assistance of trial counsel. The petition was amended following appointment of counsel. After a hearing on the petition, the Sevier County Criminal Court dismissed the petition. This appeal follows.

After review of the record, we affirm.


On November 6, 1994, United States Park Rangers located a Jeep at the bottom of a one hundred foot embankment on U.S. Highway 441. Inside the Jeep, they discovered the body of the deceased, Kelly J. Lovera. The deceased had multiple wounds to the head. An investigation ensued resulting in the arrest of the appellant and Brett Rae, the co-defendant in this case and the alleged lover of the appellant.

The appellant and her co-defendant were jointly tried. A jury found both the appellant and her co-defendant guilty of first degree murder. Although the death penalty was not sought, the State had provided notice that it was seeking a sentence of life without the possibility of parole. On the morning of the sentencing hearing, the appellant entered into an agreement with the State which provided that she would plead guilty to first degree murder in exchange for a sentence of life with the possibility of parole. In return, the State relinquished the right to seek a sentence of life without parole. The judgment form also reflects that the appellant waived her right to file either a direct appeal or a collateral post- conviction attack of her conviction. *fn1

On March 12, 1997, the appellant filed the instant petition for post- conviction relief. The petition may be generally summarized as alleging (1) trial counsel was ineffective for failing to advise her of issues viable for direct appeal of her conviction; (2) her plea was coerced and involuntary; and (3) that her conviction is void as violating the protection against double jeopardy. *fn2

A hearing was held on the petition on December 17, 1998. The appellant testified that she was originally represented by retained counsel, who "did absolutely no preparation for almost nine months." After retained counsel was permitted to withdraw, the court appointed the Office of the Public Defender as substitute counsel. The appellant explained that she only met with the public defender "several times." She admitted that "I know he tried to get it delayed so that he could have more time to prepare. As far as what he actually did to prepare I'm not knowledgeable enough to know exactly what he did." The appellant continued to provide illustrations of her counsel's alleged ineffectiveness including, his advice encouraging her to testify at trial, his failure to object to hearsay testimony, and his failure to prepare for the sentencing hearing. She conceded that counsel did advise her that issues regarding the search of her apartment could be raised on appeal in addition to challenging the results of the "Luminol" test introduced at trial which established the presence of blood at the crime scene.

With regard to her guilty plea, the appellant stated that, when first approached by counsel about the possibility of a plea immediately following the jury's verdict, she informed counsel that she "couldn't answer him . . .she couldn't even think much less give him an answer." The next morning, when counsel again questioned the appellant about the plea, she responded that "I thought I probably ought to keep whatever rights I had left. . . ." The appellant stated, that counsel informed her that the State had new evidence against her and that if she accepted the plea bargain she would be able to see her children within the next ninety days. She averred that trial counsel informed her that she "would probably do eighteen" years on a sentence of life with the possibility of parole and that she later discovered that she would have to serve a minimum twenty-five years before reaching parole eligibility. The appellant conceded that she agreed to accept the plea agreement, however, she did "not really" understand that she was relinquishing her right to a direct appeal, post-conviction relief, and habeas corpus relief. She admitted that she understood that she was pleading guilty to the offense although she had been found guilty by a jury, specifically she inquired if she could plead no contest instead of pleading guilty. The appellant admitted that the trial court informed her of her rights, including her right to appeal. She stated that, in hindsight, she "gained absolutely nothing" from her plea and that "[she] would have been a whole lot better off to let you all give me life without parole, because then I wouldn't have waived all my rights."

On cross-examination, the State elicited from the appellant that she was an honor student in high school and, after graduating, attended college for one and one-half years. She conceded that her trial counsel filed an interlocutory appeal on the search and seizure issue and that he had informed her that this issue was meritorious for appeal.

The appellant's trial counsel testified on behalf of the State. Counsel stated that, after being appointed to represent the appellant, he met with her "on numerous occasions" to discuss her case, specifically on the issue of her testifying. Counsel stated that he "never told her she had to testify" and that "[s]he never told [him] she did not want to testify." Indeed, he remarked that the appellant "always did want to get up and tell her side of the story." Counsel explained that, after the guilty verdict had been returned by the jury, he discussed a plea agreement with the State wherein the appellant would agree to a sentence of life with the possibility of parole in exchange for waiving the right to challenge the conviction on appeal. When he presented the offer to the appellant, counsel reviewed "specific issues" that were cognizable on appeal. The appellant agreed to relinquish her right to appeal in exchange for accepting a sentence of life with parole. Counsel informed her that "an earliest eligibility for parole [was] at twenty-five years." As an additional condition of her acceptance, although not specifically a part of ...

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