Court of Criminal Appeals of Tennessee, Nashville
ROGER G. VAN BLARCOM
STATE OF TENNESSEE
Assigned on Briefs December 16, 2014
Appeal from the Circuit Court for Rutherford County No. F66985 Don R. Ash, Judge
Chelsea Nicholson, Nashville, Tennessee, for the appellant, Roger G. Van Blarcom.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Senior Counsel; William C. Whitesell, Jr., District Attorney General; and Jennings Jones, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J. and Robert W. Wedemeyer, J., joined.
JOHN EVERETT WILLIAMS, JUDGE
At the petitioner's guilty plea hearing, the State presented the following as proof that would have been adduced had the defendant gone to trial:
[T]he State would have presented testimony to include that of Detective Doug Arrington with the Murfreesboro Police Department who would have come forward to testify that on or about the date of 10-14-2009 through investigation it was determined that [the petitioner] had struck his elderly mother in the head with a baseball bat and in the body with a baseball bat repeatedly. He had called 911 after leaving his mother's body lying on the floor of the garage and had a conversation with the dispatcher. In this conversation the [petitioner] stated that he would like to report a premeditated first degree murder. Towards the end of the conversation he states to the dispatcher that he can hear his mother in the background in the garage and he states that he ought to go finish her off. The dispatcher attempts to talk him out of doing so, however he does put the phone down and hang[s] up on the dispatcher and returns to the garage. At approximately this same time police officers had converged on the house, kicked in the back door, came inside and saw [the petitioner] standing over his mother as she lay on the ground bleeding. He was ordered to retreat at gunpoint. Was then placed under arrest. His mother was taken to the hospital by ambulance where as a result of her injuries that she suffered at the hands of [the petitioner] she did pass some few days later.
At the hearing, the prosecutor stated that the petitioner had "expressly agreed" to enter an out of range plea to a thirty-year sentence as a Range II, multiple offender to be served at 100% in exchange for a reduction of the charge from first degree murder to second degree murder and the dismissal of several other charges. The prosecutor explained that because the sentencing range for a Range I offender for a Class A felony was fifteen to twenty-five years, the petitioner had to agree to a Range II classification to receive the thirty-year sentence. The prosecutor stated that there was a negotiated plea agreement that reflected the arrangement. Trial counsel agreed that the prosecutor accurately described the plea agreement.
The petitioner informed the trial court that he had not been coerced or forced into pleading guilty and that he was doing so freely and voluntarily. He agreed that he was satisfied with his attorney's representation and that he did not have any complaints regarding the representation. Although he did not agree with the State's recitation of the facts, he agreed that he still desired to enter a best interest plea.
The petitioner agreed that he discussed the different elements of first and second degree murder with trial counsel and that he understood that he was pleading guilty to a lesser offense than the offense with which he was initially charged. He confirmed that trial counsel explained the range of punishment, the burden the State would have to meet to obtain a guilty verdict, and any possible defenses he may have. The petitioner agreed that he understood the rights that he was waiving by pleading guilty. He also confirmed that he was pleading guilty to an out-of-range sentence.
When the trial court asked, "So you're agreeing to this multiple 35 percent offense and that's to get to that 30 year plateau right there[, ]" the petitioner agreed. The petitioner had reviewed the plea agreement with trial counsel and stated that his only issue with understanding the agreement "was that [the sentence] was at 100 percent instead of 80." However, he stated that he understood that his sentence would be served at 100% and confirmed that he signed the plea agreement.
At the conclusion of the hearing, the trial court found the petitioner guilty of second degree murder and sentenced him to serve thirty years as a multiple offender at 100%.
At the post-conviction hearing, the petitioner represented himself, and standby counsel was available to assist the petitioner if needed. The petitioner called trial counsel as his first witness. Trial counsel agreed that the petitioner was incarcerated prior to pleading guilty and that he discussed a plea agreement with the petitioner several times. He said that the petitioner ultimately pled guilty to second degree murder in exchange for a thirty-year sentence as a Range II offender. Trial counsel testified that he had several discussions with the petitioner regarding the meaning of the terms "Range I" and "Range II." He explained to the petitioner that second degree murder was a Class A felony, which carried an ultimate range of fifteen to sixty years ...