Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs January 14, 2015
Appeal from the Criminal Court for Davidson County No. 2005-A-32 Mark J. Fishburn, Judge
Alejandro Avila-Salazar, Clifton, Tennessee, pro se.
Herbert H. Slatery, III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Glenn R. Funk, District Attorney General; and Sarah Davis, Assistant District Attorney, for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, J., joined.
ROBERT W. WEDEMEYER, JUDGE
In 2006, the Petitioner pleaded guilty to second degree murder and attempted aggravated rape, and the trial court ordered an effective sentence of forty years. The Petitioner filed a petition for post-conviction relief alleging that he received the ineffective assistance of counsel and that he did not enter his guilty plea knowingly and intelligently. This Court summarized the evidence presented at the post-conviction hearing as follows:
Testimony at the Petitioner's post-conviction hearing established that the charges to which the Petitioner pleaded guilty arose from an incident in which he and a co-defendant raped and killed a woman in a laundromat. The Petitioner testified that his court-appointed attorney ("trial counsel") represented him throughout the plea process.
The Petitioner, who had no previous experience in the legal system, testified that trial counsel met with him only three times. Each meeting occurred in jail. The Petitioner, who is not fluent in English, communicated with trial counsel using an interpreter who, he said, was not very skilled in Spanish. The Petitioner said trial counsel assured him he would receive only three to four years in jail, when in fact the Petitioner's plea agreement offered an effective sentence of forty years. The Petitioner also alleged that trial counsel did not discuss evidence with him, allow him to review discovery materials provided by the State, or tell him that the State had a surveillance video of him leaving the laundromat at which the crime occurred. Trial counsel also did not tell the Petitioner exactly what would happen if he went to trial and lost, advising only that the Petitioner would spend the rest of his life in prison. The Petitioner said he desperately wanted to go to trial, but that trial counsel resisted and called the Petitioner "a stupid young man." The Petitioner also asserted that trial counsel never tried to suppress the statement he had made to police in which he admitted choking the victim with his belt while attempting to rape her.
Although trial counsel told the Petitioner he was allowed to speak at his plea acceptance hearing, the Petitioner testified that trial counsel instructed him not to say anything except "yes" to the judge's questions. When the judge said that the Petitioner would be sentenced to forty years, the Petitioner turned to trial counsel for clarification. Trial counsel told him not to worry and that he would receive three to four years.
On cross-examination, the Petitioner confirmed that he had, at his plea acceptance hearing, agreed that he understood he would be sentenced to forty years. He also had affirmed that he had no complaints about trial counsel at that time, that he understood the possible sentences for the offenses with which he had been charged, and that he understood the rights he was waiving by declining to go to trial. The Petitioner also confirmed that he had asked his original lawyer, an assistant public defender, to withdraw because she was "not working for him, " but never complained about trial counsel or his interpreter. When asked at his post-conviction hearing why he believed trial counsel was ineffective, the Petitioner said, "As a defense attorney he should have taken at least one charge from me." The Petitioner said he would not have pleaded guilty if he and trial counsel had met more often or if he had understood his plea agreement or his legal options.
Trial counsel testified for the State at the post-conviction hearing. He said that he and the Petitioner met four times in jail and at least six more times in the courthouse. Trial counsel brought an interpreter to every meeting after the first one. The case involved "massive discovery, " including audiotapes, a video, police reports, and pictures of the crime scene. Trial counsel reviewed these items with the Petitioner a number of times, including the Petitioner's inculpatory statement to police. The two did not watch the surveillance video because the Petitioner said he had already seen it.
The Petitioner's only defense was that his co-defendant was responsible; trial counsel noted, however, that the Petitioner's statement to police was contrary to this defense. The Petitioner wanted to go to trial, however. Although trial counsel advised him against it, he told the Petitioner he would try the case. Trial counsel discussed the State's offer with the Petitioner many times, relaying that the State offered a forty-year sentence at 100%, and that the Petitioner might get a maximum of 15% of that sentence reduced for good behavior. He told the Petitioner that he would receive fifty-one years if convicted of felony murder. He also discussed lesser-included offenses, but did not believe the Petitioner would be convicted of a lesser-included offense.
Before his last meeting with the Petitioner, trial counsel had prepared to set the case for trial. During the meeting, trial counsel reiterated his opinion that the Petitioner should not go to trial. The Petitioner had tears in his eyes and agreed to plead guilty because he did not want to spend the rest of his life in jail. Trial counsel confirmed that the forty-year sentence appeared on the plea petition the Petitioner signed.
Trial counsel said he never told the Petitioner he would receive three to four years in jail. He also never told the Petitioner not to say anything but "yes" at his plea acceptance hearing. Trial counsel also confirmed that he had filed a motion to suppress the Petitioner's statement to police but that the motion was denied following a hearing. The Petitioner never mentioned any problem understanding the interpreter.
Avila-Salazar, 2009 WL 3029604, at *4. Based upon this evidence, the post-conviction court denied the Petitioner relief. The Petitioner appealed, and this Court affirmed the post-conviction court's judgment. We held:
We initially conclude that the evidence does not preponderate against the post-conviction court's obvious finding that trial counsel's testimony was more credible than the Petitioner's. The Petitioner made a number of claims that may have been seen as lacking credibility, given his satisfaction with trial counsel and his interpreter at the time of his plea, including his assertions that he expected only a three to four year sentence and could not understand his interpreter. The Petitioner also asserted at his post-conviction hearing that the State lacked evidence against him, while acknowledging his inculpatory statement, video evidence, and the existence of a witness who confirmed his presence at the laundromat.
On May 12, 2014, the Petitioner filed a petition for habeas corpus relief. In it, he alleged that his confinement was illegal because he "challeng[ed] the constitutionality of his guilty pleas." He further alleged that the trial court had committed constitutional error by "failing to ensure that the [P]etitioner was aware of a direct consequence of his guilty plea." In his attached memorandum of law, the Petitioner contended that his indictment failed to sufficiently apprise him ...