Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs May 20, 2015
Appeal from the Criminal Court for Knox County No. 102788 Bobby R. McGee, Judge
J. Liddell Kirk, Knoxville, Tennessee, for the Petitioner, Mark Takashi.
Robert E. Cooper, Jr., Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Christopher Rodgers, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and D. Kelly Thomas, Jr., J., joined.
CAMILLE R. McMULLEN, JUDGE
The Petitioner's conviction arose after Knoxville police officers discovered his one-month-old son appearing lifeless and gray in the Petitioner's apartment on the evening of September 23, 2005. See State v. Mark Takashi, No. E2010-01818-CCA-R3-CD, 2012 WL 4459861, at *1 (Tenn. Crim. App. Sept. 27, 2012), perm. app. denied (Tenn. Mar. 5, 2013). After a jury trial in which the Petitioner elected to represent himself, he was convicted of aggravated child abuse and aggravated child neglect, Class A felonies. Id The trial court merged the offenses into one conviction for aggravated child abuse and sentenced the Petitioner to twenty-five years' incarceration, to be served at 100 percent. Id. at *2. A full recitation of the underlying facts can be found in this court's opinion on direct appeal. See id. at *1-2.
On direct appeal, the Petitioner argued that the trial court erred by imposing an excessive sentence and by allowing the Petitioner to represent himself at trial. Id. at *1. This court affirmed the Petitioner's conviction, and the Tennessee Supreme Court denied his application for permission to appeal on March 5, 2013.
On December 6, 2013, the Petitioner filed a timely pro se petition for post-conviction relief alleging numerous grounds of ineffective assistance of counsel. Following the appointment of counsel, the Petitioner filed an amended post-conviction petition. The following evidence, as relevant to this appeal, was adduced at the June 27, 2014 post-conviction hearing.
Post-Conviction Hearing. The Petitioner testified that he was appointed multiple attorneys in his case before his family retained pretrial counsel. During his representation of the Petitioner, pretrial counsel participated in plea negotiations with the State. However, the Petitioner stated that he became frustrated with pretrial counsel's representation and with lawyers in general, and he discharged pretrial counsel prior to trial. When discussing how his case should be resolved with pretrial counsel, the Petitioner stated, "I did make it clear that given the facts in how the case was handled, and given the facts that existed in the case, that I did not want a plea agreement." Because he was dissatisfied with his previous attorneys, the Petitioner chose to represent himself at trial.
Prior to his withdrawal, pretrial counsel sent the Petitioner a letter in October 2007 that detailed the two plea deals offered by the State. At the time, the Petitioner was in custody at the Knox County Jail. The letter, which was entered into evidence without objection, gave the Petitioner the opportunity to plea to the lesser charge of child neglect, a Class D felony. Specifically, the first offer involved an Alford "best interest" plea to child neglect in exchange for a six-year sentence with "a near immediate release" into probation, with credit for time served. Similarly, the second offer involved a guilty plea to child neglect in exchange for a six-year sentence with immediate release for "time served" into a period of probation.
The Petitioner testified that pretrial counsel encouraged him to accept the plea deal, but he told counsel that he wanted a trial. He said he understood that both offers would result in his release from custody. He also understood the nature of his charge for aggravated child abuse, but he was not aware of the felony classification or the range of punishment at the time of the plea offer. The Petitioner stated that pretrial counsel never informed him that he could be sentenced to twenty-five years if convicted of aggravated child abuse. Pretrial counsel's plea deal letter also omitted any discussion of a potential twenty-five-year sentence. The Petitioner said he never learned of the possible range of punishment until after he had fired pretrial counsel. He acknowledged that child neglect was a lesser offense than aggravated child abuse, but he did not consider child neglect to be appropriate in his case.
When asked whether he would have accepted a plea deal if he had been properly informed of the risk of a twenty-five-year sentence, the Petitioner testified, "I would've wanted to have been home with my family by all means necessary. On one hand, however, I still don't know what the outcome of my decisions would've been." He said that his understanding of the evidence "impacted wholeheartedly [his] decision" to reject the State's plea offers. When asked whether the twenty-five-year sentence would have impacted his decision, the Petitioner stated, "Psychologically had I had been informed with this information beforehand, my thoughts and feelings about things would've been more greatly weighed than had I not known 25 years to be served [sic]."
On cross-examination, the Petitioner agreed that he maintained his innocence at the time of the plea negotiations and at the post-conviction hearing. He said that based on his emotional state at the time, he would have rejected any plea agreement in favor of going to trial. He conceded that he understood the seriousness of his charges and that he faced the risk of "serious jail time" if convicted. However, the Petitioner considered twenty-five years to be "beyond serious." He opined that he lacked any mens rea to be convicted in his case, and ...