Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 12, 2014
Appeal from the Criminal Court for Fentress County No. 2012-CR-01 E. Shayne Sexton, Judge
Ieshia Dupes (on appeal) and Harold E. Deaton (at post-conviction hearing), Jamestown, Tennessee, for the appellant, William Carter King.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; William Paul Phillips, District Attorney General; and John W. Galloway, Jr., Deputy District Attorney General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
This case arises from the Petitioner's possessing a controlled substance after he returned to the Fentress County Jail from a furlough. On July 9, 2009, the Petitioner pleaded guilty in case number 9536 to burglary and felony theft and received an effective seven-year sentence with one year's confinement and six years' probation. On January 24, 2011, the Petitioner pleaded guilty in case number 10-108 to possession of a controlled substance in a penal institution and received a five-year sentence to be served on community corrections and consecutively to his probation in case number 9536, for an effective twelve-year sentence. The trial court also ordered the Petitioner to complete a drug rehabilitation program.
On May 16, 2011, the Petitioner's community corrections officer filed a petition for community corrections revocation, alleging that the Petitioner was dismissed from the rehabilitation program for selling pain medication and falsifying a drug screen. After an evidentiary hearing, the trial court revoked the Petitioner's alternative sentences and ordered the Petitioner to serve his effective twelve-year sentence in confinement. The Petitioner appealed the trial court's revocation, and this court affirmed the revocation and summarized the facts of the case as follows:
At the revocation hearing, Richard Moggett testified for the State that he was the Assistant Director at Faith Farm Ministries in Fort Lauderdale, Florida. He explained that Faith Farm was a sixty-year-old "faith based" drug and alcohol regeneration program and that he was responsible for disciplinary actions and overseeing drug testing. The appellant enrolled in the program in February 2011. Moggett said that during the appellant's stay, the appellant had "some medical issues" and was granted "passes" to go to a hospital in the area. Moggett said that the appellant was "progressing well, but every so often, we would hear his name come to us in association with some other behavior." After the appellant's last visit to the hospital, he exhibited unusual behavior. Moggett asked the appellant if he had received medication at the hospital, and the appellant said he had received a shot of Morphine. Due to the appellant's odd behavior, the appellant was tested for drugs. The appellant tested positive for Morphine and Oxycodone. Although the appellant had not said he received Oxycodone at the hospital, Moggett decided to let the appellant remain at Faith Farm because "we could not find out if he had actually been given Oxycodone at the hospital." Four days later, the appellant was given another drug test. Moggett said that the urine sample the appellant submitted for the test was "off color, dark brown, very hot to the touch. In fact, the temperature was at 102 degrees." The appellant was asked to leave the program, and he did so immediately. Moggett notified the appellant's probation officer that the appellant had been dismissed from Faith Farm.
On cross-examination, Moggett testified that the appellant's behavior during his stay at Faith Farm was "[p]retty normal behavior for a student in our program." The appellant had written on his application that he had stomach problems, and doctors had prescribed Prilosec. Due to the appellant's condition, he would have been allowed to go to the doctor at least once per month. Moggett said that the appellant was allowed to go more often than once per month because his condition "was such a problem for him." The program at Faith Farm was a nine-month program, but the appellant stayed only four months. He went to the hospital at least six times during his stay. Moggett said that when the appellant returned from his last visit to the hospital, the appellant was acting "[k]ind of lethargic, distracted." Moggett said he sensed that something was "out of the ordinary" for the appellant. Moggett said he had been the Assistant Director of Faith Farm for four years, had no education in drug rehabilitation, and was basing his intuition about the appellant from his experience and eleven years of on-the-job training.
Moggett testified that the drug test kits used by Faith Farm were the same ones used by the criminal justice system in that area. After a person gave a urine sample for a test, the collector placed a security tab over the top of the collection bottle, and the testee initialed it. The results of the test were read within five minutes. A temperature strip on the bottle determined the urine's temperature. Moggett said that Faith Farm usually tried to have an employee witness a testee give a urine sample and that "[w]e have on occasion found devices that they attach to the thigh that would give a sample. They would actually run a tube alongside of their genitals and use that." He explained, "Any invalidation of that test, we presume it is . . . on purpose and so, we dismiss." The appellant's second test was negative for drugs, but the color and high temperature of his urine invalidated the test and resulted in his dismissal from the program. The appellant was not given prior notice of the test, and he was not checked for a device attached to his thigh after the test. Moggett acknowledged that he had no explanation for the urine's dark color and high temperature.
Candace Norman testified that she was the appellant's community corrections officer and began supervising him on January 24, 2011. Norman said that she arranged for him to go to Faith Farm and that "I truly believe in their program." Norman had never known Faith Farm to dismiss someone from the program inappropriately. On May 14, 2011, she received a letter informing her that the appellant had been dismissed from the program. The appellant also telephoned Norman and informed her that he had been discharged. Norman filed the Petition for Violation of Community Corrections and told the appellant that he needed to return to Fentress County. The appellant did not return to Fentress County voluntarily.
The trial court determined that the State had established a probation violation by a preponderance of the evidence. Specifically, the trial court stated,
The protocol in taking this - what was characterized as old urine was established by the witness. The language itself speaks [that] the client falsified. I think [defense counsel] takes exception to that because there is no showing that he actually rendered the test, that he received it from someone else or if he had -- had it put up. The fact of the matter is that the Faith Farms has established that there was a drug test that could not be tested. In particular, when you're -- the witness testified that the urine has a temperature of 102 which is virtually impossible unless the submitting person was running extended fever. I mean, just --it's just impossible.
The court noted that the appellant had been in various rehabilitation programs over the years and stated that there was "nothing else to do." The trial court ordered that the appellant serve his alternative sentences in confinement.
State v. William Carter King, No. M2011-02561-CCA-R3-CD, 2013 WL 1143246, at *1-3 (Tenn. Crim. App. Mar. 20, 2013) (footnote omitted), no app. filed.
On January 4, 2012, the Petitioner filed a pro se petition for post-conviction relief in case number 10-108 alleging multiple grounds, including the ineffective assistance of counsel and an involuntary guilty plea to possession of a controlled substance in a penal institution. After the appointment of counsel, an amended petition was filed on April 12, 2012, also alleging that counsel was ineffective and that the Petitioner entered an unknowing and involuntary guilty plea. On November 13, 2012, appointed counsel was permitted to withdraw after the Petitioner complained of counsel's performance. The Petitioner told the post-conviction court that he had filed complaints with the Tennessee Board of Professional Responsibility. Subsequent counsel was appointed.
At the post-conviction hearing, the Petitioner testified that he was originally charged with introduction of Schedule II and III controlled substances into a penal institution but pleaded guilty to possession of a controlled substance in a penal institution. He said he was sick on the day he entered his guilty plea, and he later learned that his gall bladder was causing his illness. He said he was "physically sick" and did not know what he was signing when he signed the plea agreement form. He said, though, that he knew he was signing something that he should not have signed. He said, "I was frustrated, I [knew] I would never do 12 years, but I was pretty desperate."
The Petitioner testified that in July 2009, he pleaded guilty to theft and to burglary and that he had to serve one year in jail for theft, although he received six years for burglary. He said he "flattened" his sentences and was released from confinement. He denied he was released to probation for the remainder of his sentence. He said that after he was released, he was charged with disorderly conduct. He said his "sentence was revoked" after a probation revocation hearing. The Petitioner said he told counsel that he was not on probation but that counsel never raised the issue with the trial court.
The Petitioner testified that he attempted to contact counsel after he pleaded guilty to the drug-related charge in case number 10-108 because he was having trouble getting into a rehabilitation program and that he told counsel to withdraw his guilty plea. Relative to the Petitioner's pleading guilty, the Petitioner said, "I didn't make a smart choice at all, to say the least." He claimed that his illness affected his ability to make good decisions and that had he not been sick, he would have rejected the plea offer. He said he vomited two or three times before the plea hearing and asked counsel for a furlough. Counsel told the Petitioner that the trial court would not grant a request for a furlough, and the Petitioner responded, "Go tell [Deputy District Attorney] John [Galloway] I'll give him three years running wild with this." Counsel told the Petitioner that the prosecutor would agree to five years for possession of a controlled substance in a penal institution. The Petitioner said, "[T]hat was that on that."
The Petitioner testified that although he was initially charged with introduction of a controlled substance into a penal institution, the State sought to amend the charge to possession of a controlled substance before he completed the indigency form. He said counsel told him that he was charged with misdemeanor possession. He agreed he was not represented by an attorney when the charge was amended and said he did not know it was an issue until looking into the matter later. When asked if he talked to counsel about the ...