Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs May 13, 2015.
Appeal from the Criminal Court for Sumner County No. 887-2013 Dee David Gay, Judge.
Micah Ketron, Gallatin, Tennessee, for the appellant, Gene Earl Stanley.
Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; L. Ray Whitley, District Attorney General; and Lyle Anthony James, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE.
On June 29, 2011, a Sumner County Criminal Court jury returned verdicts of guilty of one count of burglary, two counts of theft of property, one count of felony evading arrest, one count of reckless endangerment, one count of driving under the influence of an intoxicant, and one count of driving on a suspended license, and on August 12, 2011, the trial court imposed a total effective sentence of 48 years' incarceration as a career offender. The petitioner's convictions relate to the "burglary of Vic Jenkins Automotive, during which items, including a Camaro Z28, were stolen and after which the [petitioner] engaged in a high speed chase from the police" in the stolen Camaro. State v. Gene Earl Stanley, No. M2012-00664-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Nashville, Jan. 14, 2013), perm. app. denied (Tenn. June 19, 2013). The proof adduced at the petitioner's trial established that someone stole a red Camaro Z28 from Vic Jenkins Automotive on August 20, 2010, and that nine days later, a Gallatin Police Department officer spotted the petitioner driving a vehicle matching that description away from the repair shop at a high rate of speed. See id. A high-speed chase, during which the petitioner "reached speeds in excess of 110 miles per hour, " followed. The petitioner refused to stop the vehicle, even after stop sticks punctured the vehicle's tires, but he eventually ran off of the roadway and attempted to flee on foot. See id., slip op. at 3. A seat belt wrapped around his leg prevented the petitioner's running away, but he nevertheless refused to comply with the officers' commands and had to be brought to heel with a taser device. The petitioner smelled of alcohol, and officers discovered a set of stolen tires and wheels in the backseat of the Camaro. See id.
When interviewed by the police following his arrest, the petitioner feigned a loss of memory of the entire incident, which loss of memory he attributed to his having consumed "two twenty-four ounce beers and a half-pint of vodka" in addition to "some whiskey" and a small amount of marijuana. At trial, however, the defendant claimed that after an evening of heavy drinking, he met a man and a woman sitting on the hood of the aforementioned Camaro in the parking lot of a local bar. He said that the couple invited him to "'party'" with them and that the man asked him to drive the Camaro because "the woman was 'kind of messed up pretty good.'" He claimed that the man rode with him as a passenger and that, when the petitioner noticed the blue lights behind him, the man "smacked him in the face with a pistol and told him to drive." Id., slip op. at 5. The petitioner "insisted that there was a man in the front passenger seat when he crashed." Id.
On direct appeal, the petitioner conceded that he drove the stolen Camaro while under the influence of alcohol and while his driver's license was suspended but presented a claim that the State failed to disclose evidence that would have been exculpatory with regard to the charge of burglary. See id., slip op. at 6. This court concluded that the petitioner waived that claim, the only claim for relief presented on direct appeal, by failing to file a timely motion for new trial, see id., slip op. at 7, and that review of the issue for plain error was not necessary given that the evidence challenged by the petitioner "was not material because there is not a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different, " see id., slip op. at 10.
The petitioner filed a timely petition for post-conviction relief on November 15, 2013, alleging that he had been deprived of the effective assistance of counsel and that the prosecution failed to disclose exculpatory evidence.
At the July 25, 2014 evidentiary hearing, the petitioner claimed that his trial counsel "never believed [his] being innocent of this case" and that, as a result, counsel failed to conduct an appropriate investigation prior to trial. He claimed that the State submitted a plea offer prior to trial that included a sentence of 12 years in exchange for the petitioner's plea of guilty and that he did not accept the offer only because his counsel "said that the video that he got showed that there was somebody else in the car and that [the petitioner] would be leaving" the courtroom that day. He said that he repeatedly asked trial counsel to inquire about "shoe prints" taken by the police from Vic Jenkins Automotive, but counsel did not do so.
The petitioner asserted that trial counsel should have moved for the recusal of the trial judge after the judge revealed that he knew a witness in the case.
The petitioner said that, following his conviction, trial counsel wrote to the petitioner and informed him that "he was coming off of [the petitioner's] case" but would represent the petitioner at the sentencing hearing.
During cross-examination, the petitioner insisted that he believed that the 12-year plea offer was still available on the day of his trial. The petitioner acknowledged that he admitted at trial that he was guilty of all the offenses save the burglary offense but claimed that the way the prosecutor "played it out . . . kind of seemed like a trick." He then claimed, for the first time, that his trial counsel did not tell him that he had a constitutional right not to testify at trial. The petitioner conceded that he remembered "something in the fashion of" a Momon hearing, wherein he was advised by the trial court of his right not to take the stand but insisted that his trial counsel "didn't tell [him] that [he] had the right to plead the Fifth Amendment." When pressed by the post-conviction court, ...