Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs at Knoxville April 28, 2015.
Appeal from the Criminal Court for Davidson County No. 2011-C-1993 Seth W. Norman, Judge.
Kyle Mothershead, Nashville, Tennessee, for the appellant, Sylvia Laird.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Victor S. Johnson III; District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the court, in which Robert W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.
TIMOTHY L. EASTER, JUDGE.
Facts and Procedural Background
This is a post-conviction relief matter that is the result of the admitted faulty advice given by trial counsel to Petitioner.
On July 22, 2011, the Davidson County Grand Jury indicted Petitioner of one count of aggravated child abuse, a Class B felony, two counts of aggravated child neglect, a Class B felony, and one count of coercion of a witness, a Class D felony. All charges arose from alleged conduct toward her minor son, F.G. On October 31, 2012, pursuant to a plea agreement, Petitioner pled guilty to attempted aggravated child abuse and coercion of a witness; the remaining charges were dismissed. Petitioner's sentence was to be determined by the trial court.
Before Petitioner could be sentenced, her attorney died, and the trial court appointed a public defender to represent Petitioner in January 2013. After negotiating with Petitioner's new trial counsel, the State agreed to allow Petitioner to withdraw her original plea in exchange for a new plea agreement that included an agreed sentence, obviating the need for a sentencing hearing. On February 1, 2013, Petitioner pled guilty to reckless aggravated assault, a Class D felony, and child neglect, a Class A misdemeanor. Pursuant to the plea agreement, the trial court imposed a three-year sentence for the former offense and a sentence of eleven months and twenty-nine days for the latter. Both sentences were to be served concurrently and suspended to probation.
On January 31, 2014, Petitioner filed a petition for post-conviction relief through counsel, which she later amended on February 7th and March 21st. In her petition, she alleges that she received ineffective assistance from both of her trial counsel-the first failed to file a motion to withdraw her original guilty plea, and the second erroneously informed Petitioner that she could not withdraw her original guilty plea because more than thirty days had passed since its entry. Consequently, Petitioner claims that her second guilty plea was unknowing or involuntary under the circumstances. The post-conviction court held an evidentiary hearing on April 15, 2014.
Petitioner testified that she first learned of the child abuse and neglect charges in 2011 when the Department of Human Services contacted her at work. She felt that she was not guilty of the alleged crimes and intended to "fight" the charges. Petitioner hired an attorney who attended her church. Their relationship during this case was "great"; they communicated well, and Petitioner trusted this attorney.
Although Petitioner's initial intent was to proceed to trial, her attorney eventually advised her to accept the State's plea offer. Petitioner entered a guilty plea, but she "had a lot of reservations about entering the plea." When Petitioner expressed these reservations to her attorney, he told her to think about her decision for a few days and then to let him know if she changed her mind because there was still time to file a motion to withdraw her plea. The day following the plea hearing, after discussing the matter with family members, Petitioner informed her attorney that she wanted to withdraw her guilty plea. Petitioner's attorney told her that "he would go to the court and file the paperwork and have it withdrawn." Petitioner understood that she would then proceed to trial on the original charges.
Petitioner did not know if her attorney filed a motion to withdraw the plea, but she was under the impression that he did so. The record indicates he did not.
Petitioner discovered that the sentencing hearing was still scheduled to occur in December 2012 when she was contacted to be interviewed for the presentence report. Petitioner later learned that her attorney had passed away when she appeared in court in January 2013, the date for her rescheduled sentencing hearing. The trial court appointed the District Public Defender's office as a second attorney to represent Petitioner at that time.
The second attorney met with Petitioner the day that she was appointed and again on the next court date. Petitioner informed her second attorney that she wanted to withdraw her guilty plea and proceed to trial. Petitioner's second attorney informed her that "it was too late for [her] to go to trial" and that the only options were "to plea bargain or do a sentencing hearing." Consequently, Petitioner entered a second guilty plea according to the terms of a new plea agreement. Had Petitioner known that she still could have attempted to withdraw her original guilty plea, she would have done so and would not have entered the second guilty plea.
Initially, during cross-examination, Petitioner could not recall whether her case was ever set for trial and claimed that she "wasn't aware" of how often her first attorney had plea discussions with the State. Later, however, she remembered "coming to court in October of 2011" and "deciding that [she was not] going to enter a plea [and was] going to set the case for trial." Petitioner also remembered an occasion, prior to her trial date, when she was prepared to enter a guilty plea but the plea agreement fell through because the parties disagreed over whether the convictions could be expunged.
Petitioner acknowledged that, in April of 2012, federal law enforcement agents informed the State that she was cooperating with them. Petitioner hoped this cooperation might warrant favorable ...