Assigned on Briefs December 2, 2014
Appeal from the Criminal Court for Shelby County No. 10-00017-18 W. Mark Ward, Judge
Patrick E. Stegall, Memphis, Tennessee, for the appellant, Octavious Taylor.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; William L. Gibbons, District Attorney General; and Rachel E. Willis, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the Court, in which D. Kelly Thomas, Jr., and Roger A. Page, JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE
In the post-conviction evidentiary hearing, the petitioner testified that his cases had been transferred from juvenile court to criminal court. He said that he fired his lawyer who "was supposed to be prepping for trial" and that the court appointed two new lawyers that the petitioner "hardly heard from." The petitioner testified that he saw these lawyers twice and that they declined to file any pretrial motions. He said that the statement he gave to police following his arrest should have been suppressed because he was "under the age" at the time he gave the statement. He added, "I'm not saying I would have won it, but I would have wanted a shot at it."
The petitioner testified that, when his lawyers "c[a]me in, " an offer of 13.5 years at 30 percent was "on the table." The petitioner said he declined the offer because he "didn't know some of the circumstances of the case and it was really my first time really dealing with the Justice System." He acknowledged that his first lawyer recommended that he accept the plea offer. When his successor counsel inquired of the State about the availability of the plea offer, counsel learned a few days before the scheduled trial that the offer was no longer viable and that the petitioner would have to go to trial unless he agreed to a "blind" plea of guilty. The petitioner claimed, however, that he believed he would be able to accept the offer of 13.5 years to be served at 30 percent as late as the morning of trial. The petitioner testified that the defense was not ready for trial because counsel had not discussed the case with him. He maintained that counsel told him on the morning of trial that if he entered a blind plea, the release eligibility for both sentences would be 30 percent. He said that, "once [he] got on the stand, [the judge] told [him] that [the] especially aggravated robbery would be at 100%." The petitioner read from the transcript of his guilty plea hearing to the effect that he told the trial judge that he did not understand what the agreement says because he "was under the impression that both of them was at 30%." The petitioner testified that, by the time the trial judge explained the 100-percent sentence to him, he "felt like [he] was already in too deep to turn around."
When asked by the post-conviction judge what the petitioner believed his defense to the charges should have been, he replied, "I can't really say I have one." The petitioner admitted that he had confessed to the two robberies.
The petitioner opined that, had his counsel "handled it differently, " he would have accepted the 13.5-year plea offer "from the start."
On cross-examination, the petitioner acknowledged that, after he learned from the trial judge at the plea-submission hearing that the especially aggravated robbery sentence would be served at 100 percent, he replied, "I think I'll run with it, sir, " meaning that he intended to "[k]eep forward with the guilty plea, sir." He further acknowledged that he "really didn't want a trial, because [he] felt like [he] would have got more time." The petitioner pressed his view that trial counsel at that time "waited until it was too late to explain to [him] what was really going on." He said that his two successor lawyers were appointed to his case approximately two months before the scheduled trial date and that it was a "possibility" that the 13.5-year offer was still available when they came on board.
Only one of the petitioner's two successor trial lawyers testified in the evidentiary hearing. He said that he had been practicing about one year when he handled the petitioner's case. Counsel stated that he was appointed after co-counsel had been appointed and that co-counsel was already preparing the case for trial. He stated that he and co-counsel visited the petitioner in jail "a few times" and that he visited the petitioner once by himself. Counsel said that when he came on board, the 13.5-year offer was "still on the table" and that they told the petitioner that taking the offer was in his best interests. Counsel stated that he and co-counsel had concluded that they would not be able to get the petitioner's pretrial statement suppressed and that the offer "was as good as it was going to get for him." Counsel testified that in the two weeks before trial, co-counsel endeavored to explain the plea offer to the petitioner but that the petitioner "didn't want to take the offer."
Counsel testified that the assistant district attorney general who prosecuted the case told the defense that the offer would expire "at the close of business on Friday" before Monday, the day of the scheduled trial. Counsel said that co-counsel went to the petitioner on Friday afternoon to ask the petitioner whether he wanted to take the plea but that the petitioner responded that "there was no such thing as thirteen-point-five years and that the State was trying to trick him." Finally, counsel said, co-counsel "gave up" and told the petitioner that they would just go to trial. Counsel said that he visited the petitioner on the next day, Saturday, and that the petitioner then agreed that if the offered sentence were expressed in terms of 13 years and six months, he would accept it. Counsel told the petitioner that the offer had expired but that he would try to persuade the prosecutor to honor it. On Monday, the prosecutor refused to re-open the offer and insisted on going to trial in lieu of an open guilty plea. Counsel testified that he and co-counsel "tried everything that [they] could to get the thirteen-point-five back. She was not going to budge."
Counsel stated that he and co-counsel explained the development to the petitioner and told him that, given the strength of the State's case, an open plea might engender "sympathy from the Court, " leading to a more lenient sentence than he might receive post-trial. Counsel explained that they told the petitioner that they "didn't know what the sentence would ultimately be. That it would ultimately be up to the judge and that it ...