Assigned on Briefs October 7, 2014
Appeal from the Circuit Court for Fayette County No. 6229 J. Weber McCraw, Judge
The Petitioner, Michael Deshawn Smith, appeals the Fayette County Circuit Court's denial of post-conviction relief from his conviction for second degree murder. On appeal, the Petitioner argues that he received ineffective assistance of counsel based on counsel's failure to include a transcript of the plea submission hearing in the record on direct appeal. Upon review, we affirm the judgment of the post-conviction court.
Andrea Sipes Lester, Jackson, Tennessee (on appeal); and David A. Stowers, Bolivar, Tennessee (at hearing), for the Petitioner, Michael Deshawn Smith.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Mike Dunavant, District Attorney General; and Catherine Walsh, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle and Timothy L. Easter, JJ., joined.
CAMILLE R. McMULLEN, JUDGE
The Petitioner's conviction stems from the shooting death of the victim, Norquell McNeal, on March 4, 2009, in Somerville, Tennessee. On December 8, 2009, the Petitioner entered a guilty plea to second degree murder and was subsequently sentenced as a Range I, standard offender to twenty-three years' imprisonment to be served at 100 percent.
On direct appeal, the Petitioner challenged the length of his sentence as excessive. See State v. Michael Deshawn Smith, No. W2010-00344-CCA-R3-CD, 2011 WL 1466443 (Tenn. Crim. App. Apr. 18, 2011). This court declined to review the merits of the Petitioner's claim because the guilty plea hearing transcript was not included in the appellate record. Id. at *4. Although the Petitioner argued that the record provided sufficient information to conduct a de novo review, this court disagreed, noting that "the [Petitioner] here was the sole witness to testify at the sentencing hearing about the nature of his offense. . . . [N]o matter how developed a record may appear, this court cannot know the full extent unless the guilty plea transcript is included." Id. at *5. As a result, this court affirmed the Petitioner's sentence on the presumption that the trial court's ruling was supported by sufficient evidence. Id. The opinion nevertheless included a full recitation of the evidence presented at the Petitioner's January 11, 2010 sentencing hearing. See id. at *1-3.
On March 30, 2012, the Petitioner filed a timely pro se petition for post-conviction relief. The Petitioner was subsequently appointed counsel, who filed an amended petition on the Petitioner's behalf. The following evidence, as relevant to this appeal, was adduced at the April 17, 2013 post-conviction hearing. Post-Conviction Hearing. The Petitioner testified that he was charged with first degree murder and that he met with his appointed counsel "numerous . . . times." They discussed the defense theory of self-defense nearly every time they met. The Petitioner did not have any prior convictions and initially intended to go to trial. He declined the State's first plea offer of twenty years at 100 percent because he wanted a lesser charge. He accepted the second offer of an open plea to second degree murder. The Petitioner discussed sentencing with counsel and understood that his range was within fifteen to twenty-five years and that the trial court would sentence him at its discretion. However, he was under the impression that he would receive less than twenty years because he did not have a prior criminal record. The Petitioner did not see his counsel after his sentencing hearing. On direct appeal, he wanted to challenge his twenty-three-year sentence and the trial court's application of enhancement factors. He said that counsel filed his appeal but that it was denied "because the record was not complete."
Counsel testified that she was appointed to represent the Petitioner when he was arrested and that she handled the case from general sessions court to the direct appeal. After several months of negotiating with the State, she was able to obtain an open plea to second degree murder. The State had refused to accept a manslaughter plea because the victim's family was very involved. Counsel reviewed the sentencing statute with the Petitioner, and they discussed the range of punishment and how mitigating and enhancement factors might affect the sentence. Counsel thought it was important that the Petitioner had some prior arrests but no convictions. She hoped that the trial court would impose a sentence at the lower end of the range, but she never "guarantee[s] anybody anything because you don't know what could happen."
Counsel acknowledged that it was an oversight that she did not include the guilty plea hearing transcript in the record on direct appeal. On previous sentencing appeals, she was accustomed to having the plea and the sentencing occur on the same day in a single transcript, which was not the case for the Petitioner. Therefore, she only requested the sentencing hearing transcript, and her decision was not tactical. She admitted that after the Petitioner's case, she realized that the plea transcript "is something that the Court of Criminal Appeals feels is imperative to be in the record."
On cross-examination, counsel agreed that the Petitioner's sentencing hearing was more thorough than the guilty plea hearing. She recalled that the Petitioner testified at the sentencing hearing and admitted to shooting the victim. She also stated that the presentence report was entered into evidence which included "an official version of the facts[.]" Counsel testified that during the plea hearing, the State submitted various exhibits, which were included in the appellate record. She said that "[m]ost of the State's information was about those exhibits." The exhibits included the Petitioner's video statement as well as a written confession. Counsel appealed the Petitioner's twenty-three-year sentence because she "felt that the Court had enhanced him too far above the minimum of 15 years." She stated that "one of the main issues in the appeal" was the trial court's misapplication of enhancement factor (10), that the Petitioner "had no hesitation about committing a crime when the risk to human life was high[.]" The Petitioner's appellate brief, the State's response brief, and the Petitioner's reply brief were admitted into evidence. Counsel recalled that the State conceded in its brief that enhancement factor (10) was improperly applied to the Petitioner's case but nevertheless argued that the sentence was proper based on the Petitioner's use of a firearm and his prior criminal behavior.
Counsel further testified on cross-examination that the State's primary argument was that the Petitioner had waived appellate review based on the omission of his guilty plea transcript. Counsel then considered the options to remedy the lack of a transcript so that the Petitioner "could still have appellate review of his sentence." After consulting with her boss and researching the issue, she decided to file a reply brief arguing that the guilty plea transcript was not necessary for appellate review. Counsel had hoped that the appellate court would conduct a full review of the Petitioner's sentence based on the submitted record, which she opined was "voluminous." In reviewing the guilty plea transcript, she did not find "a succinct recitation of the ...