Court of Criminal Appeals of Tennessee, Knoxville
KENT L. BOOHER
STATE OF TENNESSEE
Assigned on Briefs September 20, 2016
from the Criminal Court for Loudon County No. 2013-CR-164A
Paul G. Summers, Senior Judge.
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.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which Thomas T. Woodall, P.J. and Alan E. Glenn, J.,
H. MONTGOMERY, JR., JUDGE.
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
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
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 ...