Court of Criminal Appeals of Tennessee, Nashville
Session Date March 10, 2015
Appeal from the Circuit Court for Rutherford County No. F-68961 M. Keith Siskin, Judge
Darwin Keith Colston, Murfreesboro, Tennessee, for appellant, Jimmy Heard.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Camille R. McMullen, JJ., joined.
ROGER A. PAGE, JUDGE
I. Facts and Procedural History
A grand jury indicted petitioner for criminal conspiracy to commit aggravated robbery, aggravated robbery, attempted first degree murder, aggravated assault, felony evading arrest, and felony possession of a weapon for his involvement in the September 15, 2005 robbery of a Cash Express store in Murfreesboro, Tennessee, and the subsequent car chase. State v. Jimmy Lee Heard, No. M2010-01030-CCA-R3-CD, 2012 WL 976188, at *1 (Tenn. Crim. App. March 5, 2012), perm. app. denied (Tenn. Aug. 15, 2012). A full recitation of the facts established at trial can be found in this court's opinion on direct appeal from petitioners convictions. Id. at *1-3.
Following the close of proof and deliberations, the jury acquitted petitioner of aggravated assault and convicted him of criminal conspiracy to commit aggravated robbery, aggravated robbery, evading arrest, and the lesser-included offense of attempted second degree murder. Id. at *4. The State dismissed the weapons charge prior to jury selection. Id. at *1. The trial court sentenced petitioner as a Range II, multiple offender to consecutive terms of eight years for conspiracy to commit aggravated robbery; fifteen years for aggravated robbery; fifteen years for attempted second degree murder; and six years for evading arrest, for an effective sentence of forty-four years. Id. at *4.
Petitioner argued in his motion for new trial that the court erred in its jury instructions regarding the lesser-included offenses of attempted first degree murder. The trial court granted a new trial as to petitioners conviction for attempted second degree murder but denied the motion as to the other convictions. Id. The State appealed the trial courts grant of a new trial, but this court affirmed the trial courts ruling. Id; see State v. Jimmy Heard, No. M2007-01805-CCA-R3-CD, 2009 WL 723527, at *1 (Tenn. Crim. App. Mar.18, 2009). Petitioner ultimately pleaded guilty to attempted second degree murder, and the trial court sentenced him to fifteen years as a Range II, multiple offender, to run concurrently with his other sentences, effectively modifying his sentence from forty-four years to twenty-nine years. Jimmy Lee Heard, 2012 WL 976188, at *4.
On direct appeal, petitioner argued that the evidence was insufficient to support his convictions and that the trial court erred by denying his motion for recusal and by imposing consecutive sentences. Id. at *1. This court affirmed his convictions and sentences.
In his November 1, 2012 pro se petition for post-conviction relief, petitioner claimed that: (1) he was denied appellate review of his motion to recuse due to counsels failure to procure and file the transcript of the hearing; (2) his bond was improperly raised without affording him notice or appointment of counsel; (3) the trial court erred by remanding his case to general sessions court for a second preliminary hearing without dismissing the first indictment; (4) the trial judge failed to recuse himself after accusing petitioner of plotting to kill him; and (5) several claims of ineffective assistance of counsel. Appointed counsel filed a "Statement of Amended Petition, " stating that he and petitioner disagreed about the need to file an amended petition; that he was unable to obtain a copy of the record because a flood at the Court of Criminal Appeals destroyed the original and the court reporter did not possess a copy; and that he was without the means to file an amended petition without reference to the trial record. Following a March 7, 2014 evidentiary hearing, the post-conviction court denied relief This appeal follows.
In this appeal, petitioner argues that appellate counsel erred by failing to: (1) submit a transcript of the hearing on petitioners motion to recuse the trial judge; (2) address petitioners bond increase without a hearing; (3) address petitioners allegedly unlawful interrogation by law enforcement officers; and (4) object to ...