Assigned on Briefs June 3, 2014
Appeal from the Criminal Court for Shelby County No. 08-03938 James M. Lammey, Jr., Judge.
Rosalind E. Brown, Memphis, Tennessee, for the appellant, Demario Thomas.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy P. Weirich, District Attorney General; and Glen Baity, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Camille R. McMullen, J., joined. Jeffrey S. Bivins, J., Not Participating.
ALAN E. GLENN, JUDGE
The petitioner was charged with the first degree murder of Durell McVay. After the first day of trial, the petitioner entered an Alford plea to second degree murder and was sentenced to twenty-three years at 100% in the Department of Correction. On direct appeal, this court modified the petitioner's sentence to twenty-one years. See State v. Demario Thomas, No. W2010-00949-CCA-R3-CD, 2011 WL 2698320, at *1 (Tenn. Crim. App. July 11, 2011), perm. app. denied (Tenn. Nov. 15, 2011). In our opinion, this court provided the following summary of the facts supporting the petitioner's guilty plea:
On August 14, 2007, a gang-related altercation occurred outside a gas station located across the street from Waldon Pointe Apartments in Memphis, Tennessee. While the [petitioner] was not present during this altercation, his younger brother, Donye Garrett, was present. During this altercation, Donye Garrett engaged in aggressive language and flashed gang signs to a group of men that included the victim. The gas station owner asked the men to leave and they complied. While this altercation was occurring, the [petitioner] was informed that his mother's apartment was being burglarized. After running to his mother's apartment armed with a weapon, he discovered that the apartment was not, in fact, being burglarized. Soon after he left his mother's apartment, his older brother, Michael Garrett, told him about the gas station altercation and also that Donye Garrett was at the apartment mailboxes alone.
Approximately twenty minutes later, the two groups of men from the gas station met in the apartment complex. Michael Garrett, the [petitioner]'s older brother, and another man began to fight when the victim and several other men arrived. Donye Garrett and the victim engaged in some "words" and then prepared to fight but, before they could do so, the [petitioner] fired three shots at the victim. All of the men except for the victim, who was lying on the ground, fled the scene. Police were called, and the victim was transported to the hospital where he was pronounced dead. The following day the [petitioner] went to the homicide office of his own accord, initially denying he shot the victim but later offering an admission.
On August 21, 2012, the petitioner filed a timely pro se petition for post-conviction relief. The petition was initially denied as untimely because the petitioner failed to indicate that application for permission to appeal to the Tennessee Supreme Court had been denied on November 15, 2011. However, the court subsequently determined that the petition was timely and, on April 1, 2013, an amended post-conviction petition was filed by appointed counsel.
The post-conviction court conducted an evidentiary hearing on July 3, 2013, at which the petitioner admitted that counsel discussed his sentencing exposure with him because he was pleading open to the court. However, he believed that he would receive a fifteen-year sentence given he was a first-time felon. He claimed that "[i]t wasn't explained like [I] could get twenty-five years for what [I] did." The petitioner admitted that he was not promised that he would receive a sentence of fifteen years but said that he was told "you should get a fifteen. You're a first-time felon. You don't have any reason to get anything more." He claimed that he would not have pled guilty had he known he could receive a sentence closer to the maximum in the range.
The petitioner recalled being questioned by the trial court before the court accepted his guilty plea. He acknowledged that the transcript of the guilty plea hearing reflected that the court told him that he was pleading open to the court and that he faced a possible sentence of fifteen to twenty-five years. However, he claimed that he thought the court's statement meant "this [is] what the ...