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Phillips v. State

Court of Criminal Appeals of Tennessee, Knoxville

March 9, 2015

GREGORY GLEN PHILLIPS
v.
STATE OF TENNESSEE

Assigned on Briefs January 22, 2015

Appeal from the Criminal Court for Hamilton County No. 288495 Barry A. Steelman, Judge

Robin Ruben Flores, Chattanooga, Tennessee, for the appellant, Gregory Glen Phillips.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Senior Counsel; William H. Cox III, District Attorney General; and Amanda Morrison, Assistant District Attorney General, for the appellee, State of Tennessee.

Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

OPINION

ROBERT H. MONTGOMERY, JR., JUDGE

This case arises from the Petitioner's pleading guilty to felony reckless endangerment. He was indicted for resisting arrest, felony reckless endangerment, violating the implied consent law, and third offense driving under the influence (DUI) while a minor was inside the vehicle. On June 11, 2013, the Petitioner filed a petition for post-conviction relief alleging that his guilty plea was unknowing and involuntary, that his conviction was based on a coerced confession, and that the State failed to disclose favorable evidence. The Petitioner also alleged that he received the ineffective assistance of counsel by counsel's failure to question witnesses and to challenge two increases in his bond despite the police officers' untrue statements at the preliminary hearing and in the affidavits.

Guilty Plea Proceedings

On June 11, 2012, the Petitioner pleaded guilty to felony reckless endangerment, and the remaining charges were dismissed. During the colloquy with the trial court at the guilty plea hearing, the Petitioner stated that he had read the indictment and the guilty plea petition and that counsel had explained and reviewed each document with him. The court explained the possible sentences for each of the charged offenses and asked the Petitioner if "there [was] any reason today that you would not be able to understand what you're doing." The Petitioner said no. The Petitioner stated that he had only taken his prescribed medications and that his medications did not interfere with his ability to understand what he was doing. The Petitioner understood that he was pleading guilty to felony reckless endangerment and that the remaining charges would be dismissed. The Petitioner understood that his conviction would remain on his criminal record and might be used in the future to enhance punishment for a future conviction.

The trial court advised the Petitioner that he was not required to plead guilty and that he had the right to plead not guilty and proceed to a trial, to counsel at a trial, to confront and cross-examine witnesses against him, to testify on his own behalf, and to appeal any conviction and sentence. The Petitioner stated that he understood he was waiving these rights by pleading guilty.

According to the State's recitation of the facts, on November 4, 2011, at 10:00 p.m., police officers were dispatched to a disturbance at a local restaurant. When the officers arrived, the Petitioner had already left. The officers were provided a description of the Petitioner's vehicle and the direction in which it traveled. The officers saw the vehicle traveling on the roadway and saw the vehicle "cut from the middle lane to the right directly in front of another car, almost causing a crash." The officers initiated a traffic stop, and the Petitioner stopped in the roadway. The Petitioner and three other people were inside the vehicle, including a child who was less than two months old.

The police officers spoke with the Petitioner, who smelled of alcohol. The Petitioner claimed he had consumed two margaritas at the restaurant, but the Petitioner performed poorly on the field sobriety tests. Not long after the traffic stop and upon the officers' request, hospital staff administered a breath test, which was not calibrated or certified by the State. The test showed an alcohol concentration of 0.03.

In light of the breath test, the parties agreed that the Petitioner would plead guilty to felony reckless endangerment, that the remaining charges would be dismissed, and that the Petitioner would receive a two-year sentence to be served on probation. He was released from custody after receiving credit for time served. The Petitioner confirmed the substance of the plea agreement for the trial court. He told the court that he did not own a vehicle and expressed a desire for his probation supervision to be transferred to Bradley County where he lived. The court told the Petitioner that he could request a transfer but that it could not guarantee approval of a transfer request. The Petitioner understood and said he could comply with the terms of his probation. The court asked the Petitioner if he had any questions, and the Petitioner said no.

Post-Conviction Proceedings

At the post-conviction hearing, the Petitioner testified that his guilty plea was involuntarily and unknowingly entered due to injuries sustained during his arrest when the officers "slammed" him into some doors and onto the ground. The Petitioner requested an "MRI" at the hospital because of extreme head pain. He said the MRI showed brain hemorrhaging and swelling. He said that for a long time after his arrest, he had severe headaches and dizziness when he woke. He said that on November 4, 2011, while he was in confinement, his injuries were "re-aggravated" when he sustained lacerations requiring stitches. He requested another MRI, but he received no medical attention. He said he was still suffering from headaches and dizziness on the day he entered his guilty plea, although the symptoms subsided afterward. He said that he told counsel about his symptoms and about the incident in the jail that re-aggravated his symptoms. He said, though, that on the day of the guilty plea hearing, he was unable to say "hardly" anything to counsel.

The Petitioner testified that he did not provide a statement to the police relative to his charges. He told counsel at their first meeting what occurred and asked her to obtain evidence from the police cruiser and the hospital. He said the police officer was untruthful in the affidavit and at the preliminary hearing. He also asked counsel to speak with the manager at Chili's restaurant where the incident began, but he said counsel did not question the manager. Relative to the police cruiser, he thought the video recording would show that he was not resisting, that the officer slammed his head on the ground, that he signed the implied consent form, and that he did not refuse blood and breath tests. He said counsel made no attempt to obtain the recording. Relative to the implied consent form, the Petitioner told counsel that two pens were used and that the officer altered the form.

The Petitioner testified that he was notified four or five days after his arrest that charges were being filed and that he thought the officer took time to decide "what he was going to say and . . . to cover his tracks." He said nobody attempted to "uncover the truth." The Petitioner thought hospital video cameras might show that the officer "yanked" him from the police cruiser, "ran him face-first" into the sliding-glass doors, and "power-drove" him into the asphalt. The Petitioner said that the officer asked him to perform a breath test, that he complied, and that the result ...


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