Court of Criminal Appeals of Tennessee, Nashville
Session October 28, 2014
Appeal from the Criminal Court for Davidson County No. 2011B1308, 2011B1579 Seth W. Norman, Judge
Andrew C. Beasley (at hearing) and Manuel B. Russ (on appeal), Nashville, Tennessee, for the appellant, Jason Shawn Cunningham.
Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Victor S. Johnson, III, District Attorney General; and John Zimmermann, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Roger A. Page, and Robert H. Montgomery, Jr., JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE
FACTUAL AND PROCEDURAL HISTORY
The petitioner's convictions are the result of a large-scale investigation into the sale of drugs in Davidson County. The record and post-conviction hearing reveal that the guilty pleas were entered after a somewhat convoluted procedural history. In 2009, the petitioner was indicted in case number 2009-B-1902 for certain crimes,  ultimately pleading guilty to conspiracy to deliver 300 pounds or more of marijuana, a Class A felony, and for possession with intent to sell between 70 and 300 pounds of marijuana, a Class B felony. These offenses were committed when the petitioner and another man were transporting marijuana in a school zone. The petitioner acknowledged at the post-conviction hearing that he was guilty of these offenses and does not challenge them. The petitioner was represented at the time by a different attorney, who negotiated with the State for a guilty plea. The State initially offered the petitioner an eighteen-year aggregate sentence, but the petitioner rejected this offer and litigated a motion to suppress, which he lost. The State subsequently offered the petitioner an aggregate sentence of thirty years' confinement with a 30% release eligibility in exchange for a guilty plea on these offenses.
The petitioner contacted trial counsel shortly before a status conference because he was dissatisfied with his then-attorney's ("former counsel") performance. Trial counsel went to a meeting with former counsel and the petitioner, at which the thirty-year offer was discussed. Trial counsel testified that the petitioner was suspicious about the offer because he felt the term was too long. However, trial counsel and former counsel explained to the petitioner that, because the offense was committed in a school zone, his potential exposure was a minimum of fifteen years on each count with a 100% release eligibility and that he would be eligible for earlier release under the terms of the thirty-year plea offer. Trial counsel told the petitioner that trial counsel should not be retained, and the petitioner continued to be represented by former counsel.
At the hearing a few days later, the petitioner fled, resulting in a new indictment, 2010-D-3404, for failure to appear. The petitioner was apprehended, and in late 2010 or early 2011, he hired trial counsel to represent him for plea negotiations in the two pending cases. At this time, trial counsel was already representing Maxwell Greenhill in case number 2011-B-1579. Because the petitioner had fled, the prosecution made him a less favorable plea offer on the two indictments: forty-one years at 30% (two twenty-year terms consecutively for the two drug offenses of indictment number 1902 and a one-year consecutive term for the failure to appear charge in indictment number 3404). The petitioner, who had been provided discovery in case 1902 by former counsel, wanted to accept the forty-one-year plea offer and to plead guilty in the two cases in which he had been indicted, neither of which are at issue in this appeal.
Before an agreement was formally reached, trial counsel discovered that the petitioner was to be indicted on new charges for offenses committed while on bond. Trial counsel did not want to finalize the plea agreement at this time because any sentences imposed for crimes committed while on bond would have run consecutively to the forty-one-year offer in cases 1902 and 3404. The petitioner was then charged in two additional indictments. In 2011-B-1308, the petitioner was charged in a two-count indictment with conspiracy to sell 300 pounds or more of marijuana in a drug-free zone and with money laundering. His wife was also named on this indictment, which apparently stemmed in part from a phone call the petitioner made from jail, allegedly asking his wife to collect certain drug debts. Indictment 2011-B-1579 named approximately forty-seven defendants, including both the petitioner, who was charged in three counts, and co-defendant Maxwell Greenhill, who was charged in four counts. Trial counsel testified that the prosecution had been steadily adding defendants to this indictment and that the petitioner was not named in the indictment at the time trial counsel had agreed first to represent Mr. Greenhill in case 1579 and then the petitioner in the two cases for which he had negotiated the forty-one-year plea. In indictment 1579, the petitioner was charged in Count One with conspiracy to sell 300 pounds or more of marijuana and 300 grams or more of cocaine, with an act occurring in a school zone; in Count Forty with possession with intent to deliver 300 grams or more of cocaine; and in Count Forty-Seven with money laundering. Mr. Greenhill was also named in those three counts.
Trial counsel testified that he was not formally retained to represent the petitioner on the new offenses in cases 1308 and 1579, some of which were committed while the petitioner was on bond. Instead, trial counsel testified that, after the petitioner had already indicated he wanted to agree to the forty-one-year plea offer for cases 1902 and 3404, trial counsel told the prosecutor that he was concerned about the petitioner's exposure on the new charges, which would by law run consecutively to indictments 1902 and 3404. The prosecutor made a new offer: if the petitioner would plead guilty to certain charges in the two newest indictments, he would not have to serve any additional time. Because of the additional felonies, the petitioner would be classified a persistent offender for any future offenses, but the aggregate sentence would remain forty-one years at 30%. Trial counsel testified that the petitioner was anxious to accept this offer. The petitioner was indicted in case 1308 on May 6, 2011, and in case 1579 on May 31, 2011. Trial counsel's testimony was that he represented the petitioner on the new charges by the time of the June 9, 2011 arraignment, when the trial court questioned him regarding a potential conflict. The petitioner pled guilty on June 29, 2011, and was convicted and sentenced as follows:
• Indictment 1902:
○ Count One: conspiracy to deliver over 300 pounds of marijuana, ...