Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 22, 2015
Appeal from the Circuit Court for Fentress County No. 13PCR6 E. Shayne Sexton, Judge
Chelsea Nicholson, Nashville, Tennessee, for the Appellant, Lawrence Freeze.
Herbert H. Slatery III, Attorney General and Reporter; Meredith DeVault, Senior Counsel; Jared Effler, District Attorney General; and John W. Galloway, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.
John Everett Williams, delivered the opinion of the Court, in which Alan E. Glenn and Roger A. Page, JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE
Procedural History and Factual Background
The petitioner was indicted in two separate cases for sexual crimes against two minors. In Case No. 2011-CR-119, the petitioner was indicted for one count of aggravated sexual battery. At the plea hearing, the State recited that the testimony of an adult witness would be as follows:
On Wednesday, 10-19-2011, I was cooking brunch for [E.],  [the victim], [K], [M], and myself. Sunny [the petitioner] knocked on my door and asked to use the phone. [The petitioner] used the phone at my kitchen table and rolled his cigarettes. [The petitioner] then went to my living room and sat on the couch. While I was cooking, I saw [the victim] standing with one leg on the couch and the other on the floor with her hands behind her back. [The petitioner] had his hand on her vagina. I then went around the table to the living room; [the petitioner] pulled his arms back in a sudden motion. I then yelled "girls get in here with me!" I took the girls in the kitchen and was turning off the stove and burners when he came into the kitchen just staring at me. I then took the girls to the bedroom and asked them what happened. [E]said [the petitioner] elbowed [the victim], and before [E] could finish [the victim] said he touched my Pee Pee. When I opened the door [the petitioner] had left. [The petitioner] usually calls me in the morning around 6 a.m. to make sure I woke up. [The petitioner] has not called since this incident.
According to the State, this witness was also prepared to identify photographs of her home where the incident occurred, which established her ability to see what occurred. The State also indicated that the testimony of a second witness would be that:
She is the cousin to the victim in this case, that she is seven years old, that she was sitting on one end of the couch when her aunt observed what happened in the statement there, and that she would likewise testify that she observed [the petitioner] touch [the victim's] vagina with his hand on the outer garment.
In Case No. 2012-CR-21, the petitioner was indicted for three counts of rape of a child. The Stated noted the victim would give testimony at trial in accordance with her statement given to the Department of Children's Services. That statement reads as follows:
[The victim] also disclosed that she and her sister have been traded for sex and money. She indicated that [the petitioner] is her friend Destiny's grandpa and that he has also had sex with her. She reported her first sexual encounter with [the petitioner] was in the spring of 2011. [The victim] reported this occurred two times. The first time [the victim] reported that [the petitioner] gave her a pill, what she believes was a Xanax. She was outside on the back porch when [the petitioner] pushed her down on the step and proceeded to get on top of her. She reported that he unzipped his pants and he took her pants and panties off, and then proceeded to have sex with her. [The victim] indicated that her mother, Margaret, received pills from [the petitioner] for the sexual encounter. [The victim] indicated that the second sexual encounter with [the petitioner] occurred in his bedroom. She described the room as having a big bed and an alarm clock beside the bed. She indicated that [the petitioner] insisted on her taking off her own clothes. He then got on top of her and began having sex with her. She reported that [the petitioner] was slapping her body throughout the encounter saying things such a[s] "you know you like it."
Different attorneys were appointed to represent the petitioner in each case. Case No. 2011-CR-119 was scheduled first, and the case proceeded to trial. Following voir dire and opening statements, however, the petitioner entered a nolo contendere plea to one count of aggravated sexual battery and one count of rape, resolving both of his pending cases. The negotiated plea agreement provided for concurrent sentences of ten years at 100%. Prior to accepting the plea, the trial court extensively questioned the petitioner under oath regarding his understanding of a nolo contendere plea, the crimes to which he was pleading, and the applicable sentencing ranges. The court also instructed the petitioner in regard to the applicable rights he would be waiving by pleading nolo contendere. The court also specifically informed the petitioner that by signing the agreement form, the petitioner was indicating to the court that he had read and understood the agreement itself. The petitioner replied that he understood. The petitioner also indicated that he was not under the influence of any medication and that no one had forced him to accept the agreement. He testified ...