Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs May 13, 2015
Appeal from the Criminal Court for Davidson County No. 2011-D-3400 Steve R. Dozier, Judge.
Erik R. Herbert, Nashville, Tennessee, for the Appellant, Vernon Lavone Roberts.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Victor S. Johnson III, District Attorney General; and Rachel Sobrero, Assistant District Attorney General, for the Appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
The Petitioner was indicted for two counts of sale of .5 grams or more of cocaine within 1, 000 feet of a drug-free zone and two counts of sale of twenty-six grams or more of cocaine within 1, 000 feet of a drug-free zone. On October 1, 2012, the Petitioner entered guilty pleas to all four counts, absent the drug-free zone enhancement, and was given an effective sentence of forty years' incarceration.
On October 30, 2012, the Petitioner filed a motion to set aside his guilty plea, claiming that he received ineffective assistance of counsel. Following a hearing, the trial court denied the motion. This Court affirmed the trial court's ruling on direct appeal, stating:
[The Petitioner] finally contends that his guilty pleas should be set aside because he received the ineffective assistance of counsel, which rendered his guilty plea not knowingly entered. [The Petitioner] complains that trial counsel waited five days before trial to file a motion to disclose the identity of the confidential informant. However, trial counsel explained that it was his strategy not to obtain the name of the confidential informant until that time because it had been the practice of the district attorney's office to cease plea negotiations once the identity and information for an informant was revealed to a defendant. He noted that this strategy had been quite successful over a twenty-three year period. Trial counsel testified that he would not have hesitated going to trial after receiving the confidential informant's name on the day of trial. In fact, trial counsel noted that he had received the name from the prosecutor on a piece of paper, but he did not look at it prior to settling the case because he was afraid that the State would withdraw any offers. Trial counsel noted that he did not have the informant's full name, but he had received part of the name from [the Petitioner].
As discussed above, the record shows that trial counsel met with [the Petitioner] multiple times, and they also spoke by phone. He reviewed the preliminary hearing testimony with [the Petitioner], and they discussed the strengths and weaknesses of the case. Trial counsel noted that on October 1, 2012, [the Petitioner] wanted to either make bond or get the case continued. On the day of trial, [the Petitioner] told trial counsel that he would accept an offer of eight to twelve years on community corrections, but trial counsel informed [the Petitioner] that was not an option. At the hearing on [the Petitioner]'s motion to withdraw his guilty plea, [the Petitioner] admitted that he knew that his trial date was set for October 1, 2012. He further admitted that it was not possible for him to make bond until his sentence for an unrelated case expired on October 24, 2012, which was after the scheduled trial date. [The Petitioner] knew that the trial court might not grant a request for a continuance on October 1, 2012, and that he would then be required to proceed with the trial.
After a full hearing [the Petitioner] failed to prove that trial counsel rendered ineffective assistance of counsel. The trial court did not err by ruling that [the Petitioner] was not entitled to relief
State v. Vernon Lavone Roberts, No. M2013-00466-CCA-R3-CD, 2014 WL 730909, at *12-13 (Tenn. Crim. App. Feb. 25, 2014), no appeal filed.
On September 30, 2013, the Petitioner filed a petition for post-conviction relief, again alleging ineffective assistance of counsel. The post-conviction court conducted a hearing where trial counsel, the Petitioner's step-mother, and the Petitioner's fiancée's mother testified. In a written order, the post-conviction court specifically credited trial counsel's testimony and found the Petitioner had failed to prove that counsel was ...