Court of Criminal Appeals of Tennessee, Knoxville
Session November 18, 2014
Direct Appeal from the Criminal Court for Scott County No. 2012-CR-10178 E. Shayne Sexton, Judge
David A. Stuart, Clinton, Tennessee (on appeal), and Dale Potter, LaFollette, Tennessee (at hearing), for the Appellant, Joshua Tyrell Cross.
Herbert H. Slatery, III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Jared Effler, District Attorney General; and Thomas E. Barclay, 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
This case arises from events that occurred on or about July 2, 2012, for which the Oneida Police Department arrested the Defendant, Joshua Tyrell Cross, on August 4, 2012, and charged him with aggravated rape. The Defendant had his initial appearance before the trial court on August 6, 2012, when the Public Defender's Office was appointed to represent him.
On September 4, 2012, a "Criminal Information" was filed, charging the Defendant with attempted rape. The Information alleged that the Defendant "on or about July 2, 2012, . . . did feloniously and knowingly attempt to sexually penetrate S.S. without her consent and knowing or having reason to know at the time of the penetration that she did not consent." Attached to the Information were an arrest warrant and criminal summons, an affidavit of complaint, and an order granting bail. The affidavit of complaint stated:
On 7-1-12 defendant, Cody Best, Lance Burchfield, [S.S.] and three minor children spent the evening at the river. By all accounts, [the Defendant], Cody, Lance and [S.S.] were all drinking. At some point in the early morning hours of 7-2-12, [S.S.] returned home but left one minor male child with Lance. Lance, Cody, [the Defendant] and minor male child remained at Cody's garage and were supposed to get a ride home later from [the Defendant]. According to witnesses, [the Defendant] left without saying a word to anyone leaving Cody, Lance and the male child stranded as Cody's garage is not attached to his house and his wife had taken his keys. [S.S.'s] daughter was up watching tv. She stated she heard a noise and looked out her door. She saw a man standing in the living room with what appeared to be a beer in his hand. He told her it was Josh from the river. He then asked her where her dad (Lance) was. She stated he then asked where her mom was. She told him she didn't know. Female juvenile stated she saw [the Defendant] opening doors and looking in. She stated he then went to the door and told her he was leaving. She said ok and went back to bed. [S.S.] stated she was in her room asleep with her 2 year old baby girl. [S.S.] remembers waking up to [the Defendant] on top of her. [S.S.] indicated that there was sexual penetration. The next morning when she awoke, she was completely naked and she had an injury to the right side of her face. [S.S.] did seek treatment for her injuries and a rape kit was done on 7-3-12.
Also attached to the Information was a waiver of indictment or presentment. The waiver was signed by the Defendant's attorney and the Defendant.
On September 4, 2012, the trial court held a hearing during which it heard evidence related to the Defendant's plea of guilty to the charge of attempted rape. The trial court informed the Defendant that the Scott County grand jury had not heard the case against the Defendant. Further, the trial court stated that, by pleading guilty by Information, he was waiving his right to have the Scott County grand jury hear the evidence against him. The trial court informed the Defendant that he was pleading guilty to a Class C felony, punishable by up to fifteen years in prison and a fine of $10, 000. The Defendant acknowledged his understanding of this fact.
The trial court went on to inform the Defendant of his rights and ensure the Defendant's understanding of those rights. The trial court informed the Defendant he had the right to plead not guilty and to have his case tried by a jury or a judge. The Defendant responded that he understood. The trial court informed the Defendant he had the right to testify or not testify on his own behalf and that his silence could not be used against him. The trial court further stated that the Defendant had the right to call witnesses and appeal any verdict. The Defendant acknowledged his rights. The trial court stated, "By coming in today and by going through this process, you're giving up all these rights." The Defendant responded, "Yes, sir."
The trial court asked the Defendant if he understood that his conviction could be used against him in the future, that he would lose his right to vote and run for public office, and that his conviction could be used to impeach any future sworn testimony. The Defendant stated he understood.
The Defendant informed the trial court that he was twenty-four, had a high school education, and could read and write. The Defendant said he was not under the influence of drugs or alcohol, that he had not taken any medication that caused his lack of understanding of the proceedings, and that he had not been forced or threatened with regard to his decision to enter a guilty plea. The Defendant said that no one had made him any promises and that he was there of his own free will. The trial court informed the Defendant that, while there may be recommendations as to the punishment in his case, the trial court was not bound to follow the recommendations. The Defendant expressed his satisfaction with his attorney's representation.
The State then offered the following facts supporting the guilty plea as follows:
The parties would stipulate that [the Defendant], on or about July 2nd, 2012, in Scott County, Tennessee, did unlawfully and feloniously attempt to sexually penetrate [S.S.] without her consent, and knowing or having reason to know at the time that she did not consent.
The trial court found:
Based on [the State's articulation of the facts], the Court will find you guilty and impose the recommended punishment: Three years, range one. In addition to the punishment provided herein, . . . you are subject to supervision for life pursuant to State statute. Split confinement of thirty-one (31) days with credit from August the 4th through today, probation supervised by Tennessee Department of Corrections for an eight-year period beginning today.
The trial court also ordered that the Defendant not have contact with the victim or her children. The Defendant acknowledged his understanding and said he did not have any questions.
On September 11, 2012, the Defendant filed a motion to withdraw his guilty plea and to remand his case for a preliminary hearing. In the motion, the Defendant asserted that he had asked that his mother be allowed to consult with him regarding the plea recommendation but that his attorney prevented her from being present. He stated that he worked for the Commonwealth of Kentucky and had specifically asked if he would be allowed to travel from Tennessee to his place of employment and that his attorney had assured him that he would be so allowed. His attorney, he stated, told him that he would only have to report once per month until his court costs were paid and then he would be placed on unsupervised probation. The Defendant stated that his attorney told him that "probation for sexual offenders was no big deal and that it would not present him with any serious difficulty or inconvenience." The Defendant stated that his attorney further told him that he would be removed from the sexual offender registry after ten years.
The Defendant asserted in his motion that the primary issue in this case was whether the sexual intercourse in this case was consensual. He asserted that it was consensual. The Defendant stated that, when he first reported to his probation officer, he learned that his attorney's representations to him were not accurate. He asserted that this entitled him to withdraw his guilty plea. He further asserted that his attorney's encouraging him to waive his preliminary hearing also constituted ineffective assistance of counsel. The motion stated that he should be allowed to withdraw his guilty plea pursuant to Tennessee Rule of Criminal Procedure 32(f)(1).
On October 22, 2012, the trial court held a hearing on the motion to withdraw the guilty plea. At the hearing, the Defendant testified that he was incarcerated on these charges and did not make bond. The Defendant said that he came to General Sessions Court at some point for a preliminary hearing. At that hearing, his court appointed attorney advised him to waive his right to a preliminary hearing and to enter into a plea agreement with the State. The Defendant testified that his attorney did not inform him that he would also be waiving his right to a grand jury.
The Defendant said that his mother was present the day of his preliminary hearing. He asked that he be allowed to confer with her to decide whether to enter a guilty plea. He said that he was not allowed to do so. The Defendant said that he explained to his attorney ("Counsel") that he worked in the State of Kentucky. Counsel informed him that he would be allowed to travel between Tennessee and Kentucky for work. The Defendant said that after he entered his guilty plea he learned that he could not travel back and forth because of the requirement that he register as a sex offender. He said that he would be required to register in Kentucky every time he traveled there for work. He said that he would need a permit from his probation officer to work in Kentucky and that he was unsure if he would be able to obtain such a permit. He said he was further concerned because his scheduled classes for counseling, anger management, and sex offender group also made it difficult for him to work in Kentucky.
The Defendant testified that Counsel told him that he would have to report to his probation officer once a month for a set number of years and then his probation would "drop to unsupervised." He said he had since learned that it was supervised probation and that he would have to report twice per month for the entire eight years. He also learned that he would be on the sexual offender registry for life. The Defendant said Counsel told him that the conditions required of an offender on probation as a sex offender were "no big deal" when compared with the requirements of regular probation. He said Counsel also told him that he could get off the sex offender registry in ten or fifteen years. He later learned that he would be required to register as a sexual offender for the duration of his life.
The Defendant said that, had he gone to trial, he was facing a potential sentence of twenty years, to be served at 100%. He stated that the sexual intercourse that occurred between he and S.S. was consensual on her part, a fact he discussed with Counsel.
The Defendant said that, when he reported to his probation officer after the guilty plea, she informed him of all of the requirements of his probation. He said she could tell that he was not aware of these requirements, so she asked if his attorney had explained them to him. When he said "no, " she informed him that he ...