Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs September 9, 2014
Appeal from the Criminal Court for Davidson County No. 2012-I-1151 J. Randall Wyatt, Jr., Judge
Jessica Van Dyke, Nashville, Tennessee, for the appellant, James David Shell.
Robert E. Cooper, Jr., Attorney General and Reporter; Tracy Alcock, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Hunter, Assistant District Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the Court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.
TIMOTHY L. EASTER, JUDGE
Petitioner was charged, via a criminal information, with three counts of possession with intent to sell or deliver a Schedule II controlled substance, one count of possession with intent to sell or deliver a Schedule IV controlled substance, and one count of driving under the influence ("DUI"). On October 12, 2012, Petitioner pled guilty to two counts of possession with intent to sell or deliver a Schedule II controlled substance and one count of DUI. The remaining counts were dismissed. During plea negotiations with the prosecutor, Petitioner was offered two alternate sentences: either one year to serve day-for-day with ten years of probation or a total effective sentence of seven years to be served at thirty percent. After discussing the matter with his counsel and family, Petitioner chose the seven-year sentence to serve.
On June 3, 2013, Petitioner filed a timely petition for post-conviction relief. An attorney was appointed and filed an amended petition on October 23, 2013. Petitioner alleged that his guilty plea was not knowing or voluntary because he was under the influence of several prescribed medications at the time of the plea. He also alleged that his trial counsel was ineffective for allowing him to enter a plea in his medicated state rather than requesting a continuance.
At the post-conviction hearing, Petitioner testified that he was on medication the day he entered his guilty plea and that he does not remember very much about that morning. He remembered meeting with counsel and being accompanied to court by several family members. He only "sort of" remembered entering his plea before the trial judge, but he did not remember being asked questions during the plea hearing or signing the plea petition. He testified, "I know I stood up there. I don't know what was said, I just, you know, pled guilty."
Petitioner's medical records show that he was prescribed five different medications for prior knee and elbow surgeries, back pain, panic attacks, and depression. Petitioner testified that he took his medications daily as per his physician's instructions. He believes that he took all five medications the morning of his plea hearing, as that was his daily routine; however, he does not specifically remember taking his medications that day. Petitioner testified that he had also suffered head injuries and been in a coma, which caused him to experience short-term memory loss. He did not receive treatment for his memory loss and conceded that it is possible he does not remember all of his plea hearing because of the memory loss rather than because of his medications.
Petitioner testified that after the plea hearing, he was taken to the Criminal Justice Center, where he fell asleep on a bunk. When he woke up, the medications had worn off, and his mind was clear. He realized that he made a mistake by accepting the offer of seven years to serve rather than the offer of one year to serve followed by ten years of probation. He testified that he called his trial counsel and informed him that he wanted to accept the State's initial offer. Petitioner testified that, had he not been under the influence of his medications the morning of the plea hearing, he would have accepted the one-year sentence with probation.
Counsel testified that he was retained by Petitioner and met with Petitioner ten to twenty times prior to the plea hearing. Counsel was aware that Petitioner had substance abuse problems and short-term memory issues, and he knew that Petitioner was on several medications at the time leading up to the plea hearing. Counsel testified that he could not recall if he discussed whether Petitioner took medication on the morning of the plea hearing. Counsel also did not recall whether the trial judge asked during the plea hearing whether Petitioner took any medication prior to the entry of the plea, even though such a question was fairly routine.
Counsel explained that Petitioner was on probation for five years at the time he was arrested on the charges in this case. A probation violation hearing was scheduled for the day of the plea. Counsel wanted to put together a "package deal" to dispose of both the probation violation and the new charges. The State initially offered a one year sentence to serve, followed by ten years of probation. Counsel testified that Petitioner requested that he negotiate a sentence ...