Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs February 19, 2015
Appeal from the Criminal Court for Knox County No. 99943 Mary Beth Leibowitz, Judge
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Jamar Siler.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Randall E. Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and D. Kelly Thomas, Jr., JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
The Petitioner's conviction offense relates to the death of Ryan McDonald, whom the Petitioner shot in the cafeteria of Central High School. The Petitioner was fifteen years old at the time of the offense, and his case was transferred from juvenile to criminal court. Although he was charged with first degree murder, he pleaded guilty to second degree murder with an agreed-upon thirty-year, Range II sentence to be served at 100%. He was eighteen years old when he entered the guilty plea.
At the guilty plea hearing, the trial court advised the Petitioner of his rights, and he indicated that he understood them. The Petitioner agreed he was entering into the plea agreement knowingly and of his own free will. He denied that anyone had forced or coerced him into accepting the offer. He said he was satisfied with defense counsel's efforts on his behalf. The court found that the plea was offered freely, voluntarily, and knowingly.
As part of the recitation of the facts at the guilty plea hearing, the State noted the following:
If we went to trial as expected, . . . [defense counsel] would attempt to develop proof from expert witnesses that he has secured that [the Petitioner] has fetal alcohol syndrome. That he has a borderline intellectual capacity. And I believe that the proof would be unrebutted on that issue by the State.
At the post-conviction hearing, the proof centered on whether defense counsel provided ineffective assistance in his preparation for the trial and specifically, by failing to obtain an expert witness who would testify about the Petitioner's mental disease or defect related to fetal alcohol spectrum disorder. The Petitioner testified that he faced a life sentence if convicted of first degree murder, which he understood involved serving fifty-one years. He said that about five days before he entered his guilty plea, he and counsel discussed the evidence against him for the first time and that he received copies of the witnesses' statements, which had been provided to counsel earlier than required. See Tenn. R. Crim. P. 26.2; see also Jencks v. United States, 357 U.S. 657 (1957). The Petitioner said counsel had represented him for about three and one-half years at this point. The Petitioner said that he first learned of a twenty-five-year offer from the State in November, the same month he entered the guilty plea. He said the final plea agreement involved a thirty-year sentence but did not know why the sentence length changed from the original twenty-five-year offer. He did not ask counsel about the change.
The Petitioner testified that before the discussion of the plea offer, he had understood that they were going to trial with a "psychological defense, " although he was unable to explain what the defense would entail. He said defense counsel probably explained the elements the State would have to prove to establish first degree murder, although he could not recall if counsel did. He did not recall, either, if counsel discussed the requirement that the State prove premeditation. Relative to the requirement that the State show intent to commit the offense, he said he and counsel discussed fetal alcohol syndrome. He said he first heard of the syndrome from counsel around 2010. He said "Dr. Brown, " a specialist, was supposed to write a report regarding fetal alcohol syndrome and the Petitioner's ability to form the intent for first degree murder. The Petitioner and counsel discussed the possibility of Dr. Brown's testifying for the defense, and the Petitioner met with Dr. Brown in approximately 2010. He said he talked with Dr. Brown and took a test. He did not recall agreeing for her to review his prior medical records. He said he understood that meeting with Dr. Brown was relevant to the defense but did not know why it was important. He said he also met with Dr. Adler, answered questions about his background, and underwent a physical examination.
The Petitioner testified that after he met with Dr. Brown and Dr. Adler, he and defense counsel discussed that one or both of the doctors would probably testify at the trial about the Petitioner's ability to form the intent necessary for first degree murder, which the Petitioner understood would be an important aspect of the trial.
The Petitioner testified that when defense counsel told him about the twenty-five-year offer, counsel advised him not to accept it because counsel was awaiting a report from Dr. Brown. The Petitioner said he learned from counsel that Dr. Brown had not provided the report because she had not been paid. He said he first learned that the defense experts might not testify at the trial when counsel asked the trial court to reset the trial date. He said he and counsel did not discuss why the plan changed regarding presenting the expert witnesses.
The Petitioner testified that he and defense counsel had further discussions about the twenty-five-year offer and that when counsel asked if he wanted to accept, he told counsel, "Sound [sic] like the best thing goin'." He said the offer seemed to be the best option because he did not have an expert report from Dr. Brown. He said he never asked counsel if counsel would be able to obtain Dr. Brown's report. He acknowledged he received a report from Dr. Adler. He said he had understood that Dr. Brown was an expert on fetal alcohol syndrome and that her report would be a significant aspect of his defense. He said counsel was unsuccessful in obtaining a continuance after Dr. Brown did not make her report available.
The Petitioner thought the unavailability of the report affected the State's plea offer, which was increased to include a thirty-year sentence. He said defense counsel told him that if he did not accept the thirty-year offer, he could go to trial and face a life sentence. He said counsel did not explain that the State had the burden of proof at a trial. He said they did not discuss whether the Petitioner would be able to testify in his defense. The Petitioner said he felt he had no choice other than to accept the offer. He said that ultimately, he was convinced to take the offer because counsel told him he would receive a life sentence if he went to trial. He said he did not ask if a viable defense existed. He said that he understood the difference between Range I and Range II and that he knew he was accepting an above--5- range, Range II sentence. He said counsel did not explain why an above-range sentence was necessary.
The Petitioner testified that he realized after he reached the penitentiary that his guilty plea had been a mistake. He said that after looking at his "time sheet, " he realized he would serve 100% of his thirty-year sentence but that defense counsel had advised him he would only serve about eighteen years. He said he also realized his guilty plea had been a mistake after he wrote to Dr. Brown and received a response stating that counsel had not responded to Dr. Brown's emails. He said that he wrote to counsel and requested a copy of the plea hearing transcript but that counsel never responded.
The Petitioner testified that if defense counsel had told him he would have Dr. Brown's report and expert testimony at his trial, he would have rejected the plea offer and gone to trial, although he faced a life sentence if convicted. He understood that if the post-conviction court granted relief, he would face a first degree murder trial and the possibility of a life sentence. He understood that even if he had a defense to ...