Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs November 18, 2014
Criminal Court for Hawkins County No. 13CR0168 John F. Dugger, Judge
Jonathan A. Marion, Sneedville, Tennessee, for the appellant, Dale Wayne Wilbanks.
Herbert H. Slatery, III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Dan Armstrong, District Attorney General; and Alex Pearson, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the Court, in which John Everett Williams and Timothy L. Easter, JJ., joined.
ROBERT W. WEDEMEYER, JUDGE
On May 18, 2012, the Petitioner entered a best interest plea to second degree murder, reduced from first degree felony murder, and to attempted first degree murder. Pursuant to the plea agreement, the trial court sentenced the Petitioner to concurrent sentences of twenty years for the second degree murder conviction and twenty-five years for the attempt to commit first degree murder conviction.
A. Guilty Plea Submission Hearing
At the guilty plea submission hearing, the trial court admitted an exhibit which included witness statements in support of the Petitioner's best interest plea. The Petitioner agreed to waive a formal presentation of the evidence in lieu of a prosecution report to supply a factual basis for the guilty plea. The affidavit of complaint, contained in the prosecution report, stated the following:
ON JUNE 3 2010 OFFICERS OF THE HAWKINS COUNTY SHERIFFS OFFICE WERE DISPATCHED TO [the victims' address] TO A SHOOTING. ONE VICTIM JAMES LAWSON WAS FOUND DECEASED IN THE HOME. ANOTHER JUVENILE VICTIM WAS FOUND WOUNDED IN CRITICAL CONDITION. SHE WAS TRANSPORTED TO HOLSTON VALLEY ER FOR TREATMENT. A WITNESS TO THE INCIDENT TOLD [A] DETECTIVE WITH THE SHERIFFS OFFICE THAT THE [PETITIONER] WAS PRESENT WHEN THE VICTIMS WERE SHOT AND LEFT AFTERWARDS. SHE STATES SHE SEEN [Sic] THE [PETITIONER] AND THE MALE VICTIM ARGUING AND THE [PETITIONER] HIT THE MALE VICTIM KNOCKING HIM DOWN. SHE STATES SHE THEN HEARD GUNSHOTS. SHE STATES SHE RAN AFTER THE SHOTS. SHE STATES SHE SEEN [Sic] THE [PETITIONER] LEAVE WHEN SHE STOPPED AND LOOKED BACK. THE JUVENILE FEMALE STATED TO FIRST RESPONDERS THAT SHE WAS TAKING A SHOWER IN THE HOME WHEN A MALE, NOT KNOWN TO HER, JUST SHOT HER. UPON FURTHER INVESTIGATION IT WAS DETERMINED THAT THE [PETITIONER] STOLE A FIREARM FROM THE VICTIMS['] RESIDENCE. THE FIREARM WAS LATER RECOVERED FROM THE VEHICLE THE [PETITIONER] LEFT THE CRIME SCENE IN. THE ABOVE OFFENSE DID OCCUR IN HAWKINS COUNTY TENN.[ ]
The prosecution report also contained two witness statements. The following is a summary of the interview with EB,  the juvenile victim:
[EB] said that she was in the back bedroom getting clothes and heard people talking. She said that there was a woman in the kitchen. [EB] said that the woman said "You got that" and that the man said "Hell no". [Sic] She said that the female said "Make sure you get something" and the man said "I'll take care of it". [Sic]
She said that the woman walked out. She said that the man and [the victim] were talking. She said that she got out of the shower and heard a gunshot and a moan. She said that she heard another gunshot and then a moan. She said she then heard another (gunshot). She said that she looked out and heard a rumble. She said that a man was running at her with a gun. She said that she said please. She said that the man grabbed her and put his hand around her mouth. She said that he put the gun to her neck; she said that it was hot. She said that the man had brown and gray hair. She said that she was naked except for a bra. She said that she felt blood falling. She said that they went through the hall to the living room. [EB] said that [the victim] was on the couch.
She said that they fell on the ground. She said that she hit him in the jaw and grabbed his cheeks. She said that she kept hitting him in the jaw. She said that she tried to get out the door but that he grabbed her and pulled her back. She said that she went down the wheelchair ramp. She said that when the man left he got into a burgundy thing. She said that she looked at him and he flipped her [the] bird and mouthed something like "F**k you bi**h". [Sic] She said that she went back into the house and tried to call. She said that she was on the bed.
[EB] said that the man asked her if she was ready to die while he had her in the headlock. She said that the gun went off in the hallway near the back) [Sic] of the trailer.
[EB] was shot in the left side of the neck area and the bullet exited the right upper lip.
She said that he was on her left side and grabbed her around the mouth with his right hand. She said that they were in the bathroom and she looked in the mirror. She said that there was no blood on the man's hand (before shot).
. . . .
[EB] said that [the victim] sold oxys or roxys. She said that there were pills in a bottle on the table in front of the couch. She said that [the victim] kept a gun in the couch. She said that it was a small gun and had a cylinder in it.
The trial court explained to the Petitioner the charges and the potential penalties. The Petitioner confirmed his understanding of the plea agreement and the rights he was waiving by entering a plea. The Petitioner confirmed that he was satisfied with his attorney's ("Counsel") representation and that he believed Counsel had properly investigated the case. The Petitioner stated that he did not have any concerns or complaints with regard to his legal representation. The Petitioner testified that he was not being forced to enter the pleas. The trial court found the Petitioner competent to enter the pleas. The Petitioner confirmed that he had reviewed the witness statements in the prosecution report and agreed that those were "fair statements" as to what had occurred. The trial court accepted the Petitioner's plea to second degree murder and attempted first degree murder, and the Petitioner was sentenced to serve concurrent sentences of twenty years for the second degree murder conviction and twenty-five years for the attempt to commit first degree murder conviction pursuant to the parties' negotiated agreement.
B. Post-Conviction Hearing
The Petitioner, pro se, filed a motion to withdraw his guilty pleas on June 15, 2012. On May 15, 2013, the Petitioner, pro se, filed a post-conviction petition claiming that he had received the ineffective assistance of counsel and that his guilty plea was involuntary. The trial court appointed an attorney on August 30, 2013, who filed an amended petition for post-conviction relief and an amended motion to withdraw the guilty pleas. The post-conviction court conducted a hearing on the petition and the motion.
At the hearing, the Petitioner testified about Counsel's representation as follows:
Well, me and [Counsel] I just didn't feel he was handling my case the way that I wanted it handled. I'm not trying to say [he's not] a good lawyer. I've heard good things about him, but when he came to representing certain things I felt I needed to get across, we just didn't seem to communicate and it just - - I'm ...