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Booher v. State

Court of Criminal Appeals of Tennessee, Knoxville

November 4, 2016

KENT L. BOOHER
v.
STATE OF TENNESSEE

          Assigned on Briefs September 20, 2016

         Appeal from the Criminal Court for Loudon County No. 2013-CR-164A Paul G. Summers, Senior Judge.

          Kent L. Booher, Harriman, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Russell Johnson, District Attorney General; and Tiffany Smith, Henry Sledge, and Frank Harvey, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J. and Alan E. Glenn, J., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         The Petitioner pleaded guilty on September 23, 2014 to two counts of statutory rape and was sentenced to three years, all suspended to supervised probation. The factual basis for the pleas is not included in the record on appeal. On September 22, 2015, the Petitioner filed a petition for post-conviction relief. The Petitioner alleged in an "addendum" to the petition that he received the ineffective assistance of counsel on the following grounds:

1. The court entered an order and sealed the order denying me any opportunity to read the order or discuss it with my attorney. I advised my counsel that I was precluded from reading the order. He should have asked the court to unseal the order so that I (the defendant) could read it.
2.. . . [No] evidentiary hearing was held on the [above-referenced] motion or if one was held, I was not invited to attend the hearing. I am unaware if any evidence was introduced by the state or my attorney in support of a motion or the order.
3. The state executed a search warrant for text messages from a provider located out of state. No return on that warrant was made . . . by the day I entered my plea . . . . [An] edited narrative of text messages from my account was released to me and my attorney, but those texts were "cherry picked" from my account. While my attorney filed an appropriate motion to suppress . . . [he] failed to follow up to force the state to reveal what, if any, documents or records were received as a result of the search warrant[.]
4. I have some evidence to suggest that my text messages and telephone calls from and to my cell phone were intercepted without benefit of a warrant by law enforcement officers . . . . Such a warrantless search could result in any evidence derived from the interception of my calls and texts being inadmissible.
a. I have spoken to a woman . . . who "sexted" me a photo. That woman was subsequently interviewed by law enforcement officers about the photo. Since the photo was sent to me from her, and neither she nor I ever shared that information with anyone else, I believe there is some evidence of police intercepting my calls and texts[.]
b. A probation officer approached me about a warning she had received from a law enforcement officer about her cell phone conversations with me. Again, these were personal calls that only included her and me. I do not believe any warrant exists authorizing my phone to be tapped.
I believe that full disclosure of the required search warrant return could lead to additional evidence of police misconduct in the wiretapping of my phone and text messages without a warrant. My attorney should have persisted in obtaining those records and contacted the text message provider to discover if any ...

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