Assigned on Briefs January 6, 2015
Appeal from the Criminal Court for Shelby County No. 11-05560 Lee V. Coffee, Judge
James E. Thomas, Memphis, Tennessee, for the appellant, Joshua Bishop.
Herbert H. Slatery, III, Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Lessie Rainey, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Camille R. McMullen and Roger A. Page, JJ., joined.
ALAN E. GLENN, JUDGE
The defendant and two co-defendants, Darrian White and Quintarius Hammonds, were indicted for aggravated robbery, a Class B felony. On December 14, 2012, the petitioner pled guilty as charged to aggravated robbery. Pursuant to the terms of his negotiated plea agreement, the petitioner was sentenced as a Range I, standard offender to eight years at 85%.
At the guilty plea hearing, the prosecutor recited the factual basis for the plea:
[H]ad the case gone to trial, the State submits that the proof would have shown that on November 15th, the victim in this case, Mr. Vincent Matthews, was inside a vehicle talking to his wife on his phone when several male blacks approached and asked him to use his phone. He allowed two of the three individuals to use his phone, after which point, all three of them pulled handguns on him and told him to get out of the truck before they shot him.
He did get out of the vehicle, was hit in the head by two of the three males with a handgun. He was treated but not transported to The Med, and the [petitioner] was actually apprehended shortly thereafter, running away from the vehicle in a nearby apartment complex.
At that time, he did come [d]owntown to give a statement to being present when this happened, and then Mr. Darrian (phonetics) White and Mr. Hammonds were later arrested and have also already pled and been voir dired as to their involvement.
On July 31, 2013, the petitioner filed a pro se petition for post-conviction relief in which he raised claims of ineffective assistance of counsel and an unknowing and involuntary guilty plea. Post-conviction counsel was appointed, and an amended petition was filed on September 18, 2013, in which the petitioner alleged that his trial counsel was deficient in his representation because he failed to investigate the petitioner's case and failed to fully advise the petitioner of his rights and the consequences of his guilty plea.
At the evidentiary hearing, trial counsel testified that he had been practicing law for over ten years and that 98% of his practice involved criminal defense. He was appointed to represent the petitioner in criminal court after his case was transferred from juvenile court. After the petitioner was released on bond, counsel instructed him to make an appointment and come to his office to discuss his statement because the petitioner had told him that his statement was coerced. However, the petitioner never came to counsel's office to discuss the statement, and counsel had no basis to file a motion to suppress it. Counsel said that the statement was favorable to the petitioner in that "it didn't put the gun in his hand, " but unfavorable in that it put him at the scene as an active participant and recipient of the proceeds from the robbery. Counsel said that he wrote letters to the petitioner but received no response and that he tried calling the petitioner, but his number was "no good." Counsel then discovered that the petitioner had been arrested on another charge and was in jail. Counsel met with the petitioner at ...