Assigned on Briefs October 7, 2014
Appeal from the Criminal Court for Shelby County No. 06-00684 Paula Skahan, Judge
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; Reginald Henderson, Doug Carriker, and Marquis Young, Assistant District Attorneys General, for the appellant, State of Tennessee.
Robert C. Brooks, Memphis, Tennessee, for the appellee, Alvin Malone.
Timothy L. Easter, J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.
TIMOTHY L. EASTER, JUDGE
Factual and Procedural Background
On December 2, 2006, a Shelby County jury convicted Petitioner of two counts of first degree felony murder, one count of first degree premeditated murder, and two counts of especially aggravated kidnapping. The trial court merged the first degree murder conviction with one of the felony murder convictions. The evidence against Petitioner was primarily based upon the testimony of one of his co-defendants, Orel Chapa, which this Court determined to be corroborated by the other testimony and evidence presented at trial. Alvin Malone, 2008 Tenn. Crim. App. LEXIS 813, at *67. The facts of this case, as summarized by this Court in response to Petitioner's challenge to the sufficiency of the evidence, are as follows:
[I]n the light most favorable to the State, the evidence showed that [Petitioner] was in possession of cocaine from a drug cartel that was subsequently stolen in a burglary. [Petitioner] initially thought Chapa was the thief and wanted to kill him. When Chapa indicated that [Taurus] Vester was the likely thief, Chapa was ordered to lure Vester to Chapa's house. Armed with guns, [Petitioner and the other two co-defendants] ordered Vester to the ground and bound him with duct tape. [Vester's girlfriend, Octavia Lynn] Nelson[, ] was forcibly grabbed out of Vester's car and bound with duct tape as well. Vester and Nelson were forced into [a] rental vehicle with [Petitioner and co-defendants]. While en route to [Petitioner's] auto body shop, an exchange of gunfire took place during which Vester was shot four times. Nelson was shot after the group arrived at the shop at a point when [Petitioner and two co-defendants] were the only ones in the vehicle. Even though Chapa did not see who actually fired the deadly shots, the jury was instructed that [Petitioner] could be criminally responsible for the conduct of others.
Id. at *68-69 (footnote added). The post-conviction court noted that, "[a]t the sentencing hearing, Petitioner denied being present for the incident and further denied knowing the victims." Petitioner was sentenced to life for each felony murder conviction and to twenty years for each kidnapping conviction, all running consecutively. Petitioner appealed to this Court, raising several issues for review. This Court affirmed Petitioner's convictions and sentence on October 2, 2008. Id. at *73-74. Petitioner sought permission to appeal his case to the Tennessee Supreme Court, which was denied on March 23, 2009.
On November 19, 2009, Petitioner filed a pro se petition for post-conviction relief. After the appointment of counsel, Petitioner filed an amended petition on August 25, 2010, a supplemental amended petition on September 23, 2011, and a revised supplemental amended petition on October 3, 2011. Petitioner claimed that he had received ineffective assistance of counsel both at trial and during his direct appeal. As it relates to this current appeal, Petitioner specifically alleged that his trial counsel was deficient for failing to call alibi witnesses to testify and that both his trial and appellate counsels were deficient for failing to object to or appeal the trial court's imposition of consecutive sentences based on the dangerous offender category without making the requisite findings under State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Hearings on the petition were held on August 11, 2011, February 27, 2013, and April 25, 2013.
At the August 11, 2011 hearing, Petitioner's trial counsel was called to testify. Trial counsel practiced criminal defense almost exclusively for twenty-three years until he became a General Sessions judge. Trial counsel testified that he handled several hundred cases, twelve to fifteen of which were murder cases. He testified that in Petitioner's case, their defense at trial was that Petitioner was not involved and that he had an alibi for the time the murders were supposed to have taken place. He conceded that he did not object to the trial court's failure to make the necessary Wilkerson findings before imposing a consecutive sentence, but also testified that he had not reviewed the transcripts of the sentencing hearing to refresh his recollection on the matter. The appellate record, including transcripts of the trial and sentencing hearing, was submitted into evidence on a CD.
At the February 27, 2013 hearing, the first witness to testify was Petitioner's appellate counsel. He testified that he did not raise the trial court's failure to make Wilkerson findings on appeal because the issue had not been raised by trial counsel in the motion for a new trial. However, he acknowledged that a motion for new trial did not control sentencing issues and that he challenged the use of an enhancement factor on direct appeal. See Alvin Malone, 2008 Tenn. Crim. App. LEXIS 813, at *69-73. Appellate counsel testified that after communicating with Petitioner, "the big sentencing issue was that the trial court erred in finding the defendant was a leader in the offenses and using that enhancement factor in sentencing." During cross-examination, Appellate counsel acknowledged that the issue of consecutive sentencing never came up in his communications with Petitioner.
The next witness to testify at the February 27 hearing was Lillie Jones, a friend of Petitioner and the mother of his fiancée, Robin Jones. Lillie Jones was aware that Petitioner was charged with a kidnapping and murder that were alleged to have occurred sometime between January 23 and 24 of 2005. According to Lillie Jones, she saw Petitioner at a family gathering at her house on January 23, 2005. She testified that she usually cooked a family dinner on Sundays. She testified that Petitioner came with her daughter around noon, and they left sometime around 8:30 or 9:00 that evening. Lillie Jones testified that she hired Petitioner's trial counsel and that she told trial counsel about the family gathering and the numerous witnesses who could verify Petitioner's attendance. However, trial counsel told her that he did not want to use them "at this time." Lillie Jones testified that she was present during the trial and was available to testify, but trial counsel did not call her as a ...