Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs February 11, 2015
Appeal from the Criminal Court for Davidson County Nos. 2010-C-2568, 2010-D-3338 Steve R. Dozier, Judge
Ryan C. Caldwell, Nashville, Tennessee, for the Petitioner, Marques Johnson.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Rachel Sobrero, Assistant District Attorney General, for the Respondent, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.
TIMOTHY L. EASTER, JUDGE
Petitioner's underlying convictions and sentences stem from two separate indictments. In September of 2010, Petitioner was indicted for two counts of burglary of a motor vehicle, one count of theft of property valued over $500, one count of theft of property valued less than $500, and one count of evading arrest. In November of 2010, Petitioner was indicted for two counts of burglary of a motor vehicle, one count of theft of property valued over $1, 000, two counts of theft of property valued over $500, and one count of theft of property valued less than $500. See Marques Sanchez Johnson, 2012 WL 5188136, at *1.
On October 17, 2011, Petitioner entered into a plea agreement to dispose of both cases simultaneously. In the first case, Petitioner pled guilty to two counts of burglary of a motor vehicle and one count of theft of property valued over $500 and was sentenced to an effective sentence of six years. In the second case, Petitioner pled guilty to two counts of burglary of a motor vehicle and one count of theft of property valued over $1, 000 and was sentenced to an effective sentence of twelve years. All other charges were dismissed. As part of the agreement, the trial court held a sentencing hearing to determine whether the sentences in the two cases should run concurrently or consecutively. The trial court determined that the sentences should run consecutively, for a total effective sentence of eighteen years. This Court affirmed that decision on appeal. Id. at *5. The Tennessee Supreme Court denied Petitioner's application for permission to appeal.
On December 10, 2013, Petitioner filed a pro se petition for post-conviction relief. Appointed counsel filed an amended petition on May 13, 2014. As it relates to this appeal, Petitioner claimed that he received ineffective assistance of counsel because his trial counsel failed to inform him of his right to testify at the sentencing hearing or to make a statement of allocution. Petitioner also claimed that, without knowing these rights, his guilty plea was not voluntarily or intelligently made. A hearing was held on June 19, 2014.
At the post-conviction hearing, Petitioner testified that trial counsel never told him that he had a right to testify at the sentencing hearing. The trial court also did not inform him of this right. If he had testified, Petitioner stated that he would have admitted that he "made some mistakes in the past, " but would have pointed out that most of his crimes were either misdemeanors or juvenile offenses. He would have also tried to "probably apologize to the victims that I did something to them."
Petitioner also testified that trial counsel did not adequately investigate the value of the stolen property. He believed that some of the felony thefts could have been reduced to misdemeanor thefts. Petitioner also claimed that trial counsel did not inform him of other plea offers from the State. Petitioner testified that trial counsel told him that the most time he could get would be twelve years. However, Petitioner admitted that he understood the terms of the plea agreement, including the provision that the trial court would determine whether the sentences from the two cases would be served concurrently or consecutively. Petitioner acknowledged that he accepted the plea agreement because of the risk of a longer sentence if he was convicted at trial.
Trial counsel testified that he had been practicing law since 2008, and that over 95 percent of his cases were criminal defense. Trial counsel was appointed to Petitioner's case after Petitioner was indicted. Trial counsel received discovery from Petitioner's former attorney, which he reviewed with Petitioner. Trial counsel hired an investigator once Petitioner's case was set for trial. Trial counsel testified that he had multiple discussions with Petitioner throughout the case, including discussions about the charges he faced and the plea offers from the State. Trial counsel testified that he corresponded with Petitioner frequently and that Petitioner had a "real good grasp" on the case.
Trial counsel testified that Petitioner initially rejected a plea offer for a total effective sentence of twelve years because it was "too much time." Trial counsel testified that once this offer was taken off the table by the State, he continued to negotiate with State for a better deal, but the best the State offered was the arrangement to which Petitioner ultimately agreed: a six-year sentence in one case and a twelve-year sentence in the other case, with the trial court to determine whether the sentences would run concurrently or consecutively. Trial counsel denied that he ever told Petitioner that the most ...