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Covert v. State

Court of Criminal Appeals of Tennessee, Knoxville

September 2, 2014

BLAIN STEVEN COVERT
v.
STATE OF TENNESSEE

Session May 20, 2014

Appeal from the Circuit Court for Campbell County No. 15983 E. Shayne Sexton, Judge

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Lori Phillips-Jones, District Attorney General; and Scarlett W. Ellis, Assistant District Attorney General, for the appellant, State of Tennessee.

J. Stephen Hurst, LaFollette, Tennessee, for the appellee, Blain Steven Covert.

Joseph M. Tipton, P.J., delivered the opinion of the court, in which Jeffrey S. Bivins, Sp. J., joined. Thomas T. Woodall, J., filed a dissenting opinion.

OPINION

Joseph M. Tipton, P.J.

The Petitioner was indicted for twenty-two counts of aggravated sexual exploitation of a minor and three counts of sexual exploitation of a minor. See T.C.A. § 39-17-1003, 39-17-1004 (2010). He pleaded guilty to aggravated sexual exploitation of a minor and sexual exploitation of a minor and received an effective ten-year sentence. The Petitioner filed a petition for post-conviction relief, alleging multiple grounds of the ineffective assistance of counsel. After an evidentiary hearing, the trial court granted post-conviction relief on the ground that counsel provided ineffective assistance by not investigating the Petitioner's reported mental health problems, and the State appealed.

At the post-conviction hearing, Ben Walker, a relative of the Petitioner, testified that he was a retired Federal Bureau of Investigation (FBI) agent and that he met with counsel at the request of the Petitioner's grandmother. The meeting was held at counsel's office before the Petitioner pleaded guilty, and his grandmother attended. Mr. Walker said his role at the meeting was to help her understand the charges against the Petitioner.

Mr. Walker testified that counsel stated at the meeting that he had not "done discovery" because counsel was "too busy trying to negotiate the plea deal on two counts of the indictment." He told counsel that the Petitioner was "a young, stupid kid with mental health problems." He said the Petitioner's grandmother also told counsel at the meeting that the Petitioner received mental health care. On cross-examination, Mr. Walker testified that he knew the Petitioner was charged with four Class B felony offenses.

Linda Covert, the Petitioner's mother, testified that she met with counsel several times before the Petitioner entered his guilty pleas. She, the Petitioner's father, and his grandmother told counsel that the Petitioner was having mental health problems and that the Petitioner was receiving counseling and taking medications. She said that she provided counsel with a list of the Petitioner's counselors and their telephone numbers early in counsel's representation. She said that she raised the mental health issue each time she met with counsel.

Ms. Covert testified that counsel told her that he was going to investigate the Petitioner's mental health problems but that to her knowledge, counsel never obtained any documents from the counselors who evaluated and treated the Petitioner. She said that she came to court when the Petitioner entered his guilty pleas but that she was not expecting him to plead guilty. She said counsel showed the Petitioner the documents regarding the plea agreement. She heard the Petitioner tell counsel that he was not guilty and did not want to sign the plea agreement. She heard counsel tell the Petitioner that counsel would no longer represent him if he did not accept the plea offer.

Steven Covert, the Petitioner's father, testified that he met with counsel at counsel's office four times and that the Petitioner was present only once. He said the Petitioner maintained his innocence until he entered his guilty pleas. He confirmed Ms. Covert's testimony regarding counsel's being repeatedly told about the Petitioner's mental health history. He said counsel told him that he would "look into it." He said the Petitioner wanted to reject the plea offer and go to trial. He told counsel that if the Petitioner "signs it, it would be under duress." On cross-examination, he stated that the Petitioner wanted a trial rather than to plead guilty because the Petitioner "didn't do the charges."

Brad Franks, a counselor at Helen Ross McNabb Center, testified that the Petitioner was treated on an outpatient basis approximately one month before entering his guilty pleas. He said the Petitioner sought medication for his depression. The Petitioner sought entry of his medical records, and the State objected. The trial court "conditionally" sustained the State's objection.

The prosecutor told the trial court,
Your Honor, I'm [going to] object to the introduction of these medical -- or these records. I think the witness can testify to anything he knows about [the Petitioner] any time he saw him and what his status was but not on anything other ...

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