Assigned on Briefs August 2, 2016
from the Criminal Court for Shelby County Nos. 13-01979,
13-05638 James M. Lammey, Judge
M. Segraves, Memphis, Tennessee, for the Petitioner, Marcus
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Senior Counsel; Amy P. Weirich, District Attorney
General; and Glen C. Baity, Assistant District Attorney
General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court,
in which John Everett Williams and Robert L. Holloway, Jr.,
CAMILLE R. McMULLEN, JUDGE
April 30, 2013, the Petitioner was indicted by a Shelby
County Grand Jury on one count of aggravated robbery in Case
No. 13-01979. On November 19, 2013, while released on bond,
the Petitioner was again indicted on one count of aggravated
robbery and two counts of unlawful possession of marijuana
with intent to sell or deliver in Case No. 13-05638. On
December 10, 2013, the Petitioner entered a guilty plea to
two counts of aggravated robbery, for which he received an
effective sentence of sixteen years. Pursuant to a plea
agreement, the State dismissed the two remaining counts of
unlawful possession in Case No. 13-05638 as well as the
entire indictment for a third case, which included two
additional counts of criminal attempt to commit aggravated
Plea Hearing. At the beginning of the December 10, 2013
guilty plea hearing, the State requested a proffer of
evidence from the Petitioner, which had not been discussed
with trial counsel prior to the hearing. After trial counsel
conferred, the Petitioner answered a series of questions
about the crimes he was charged with, including questions
about his co-defendants. The State then proceeded to
summarize the underlying facts as follows:
[O]n November 8th, 2012, [the first victim] was robbed at
gunpoint as he worked as a clerk at Fuel and Wash located at
4509 Stage Road, Memphis, Tennessee. The doors were locked. A
male came in to order a Black and Mild. That was actually one
of the co-defendants listed as spoken by the [Petitioner].
Then Darius Cox went in and held the door open.
[The Petitioner], according to his own statement[, ]
participated in the planning; and according to other
co[-]defendants actually provided the gun to Temoccio Wells.
Temoccio Wells went in and actually robbed the store at
gunpoint. They took several dollars - approximately six
hundred dollars and had already agreed to split the proceeds.
The police caught them just a couple blocks down the road. I
believe all parties gave at least somewhat of a confession in
this, at least limited to facilitation. So, they all were
involved and all did agree as pointed out by Your Honor.
…[O]n July 23rd, 2013, around 1:00 p.m., [the second
victim] was at Johnson and Johnson Circle. He was confronted
by an unknown male black armed with a revolve[r] -
Armed suspect. It was a juvenile who demanded his property
and made him remove his pants. Suspect then fled the scene
with the victim's pants and property leaving in a Jeep
Cherokee. Officers checking the area located a Jeep Cherokee
matching the description given by the witnesses - the victim
- stopped it at 3703 Jackson here in Memphis/Shelby County.
Officers located three suspects in the vehicle, I believe two
of which were juveniles, one of which was the gunman. [The
Petitioner] admitted to being involved. [The Petitioner]
admitted to being involved and again participating in the
planning and, as with several other cases, actually had a
victim go in and do the worst of the dirty work with the gun.
The victim was [sic] stolen some cash, a pair of pants, and
twenty-four point six one grams of a green leafy substance
that tested positive for marijuana.
And, again, [the Petitioner] gave somewhat of an admission to
that as well.
Petitioner's counsel, on behalf of the Petitioner,
stipulated to the State's recitation of the facts and
requested that the trial court accept the negotiated plea
agreement. The trial court then engaged in an extensive voir
dire with the Petitioner regarding his right to plead guilty
and noted that, as an initial matter, the court had
"talked at length before" with the Petitioner about
"all the possible things [he] could be facing." The
trial court also noted that it had previously told the
Petitioner the court "wouldn't accept a negotiated
plea, " and that, subsequently, "[the Petitioner]
set [his] case for trial." However, the Petitioner's
counsel "was persistent in pursuing [the trial court] to
change [its] mind" and allow the Petitioner to change
his plea from not guilty to guilty. The trial court agreed to
accept the Petitioner's guilty plea, and proceeded to
explain to the Petitioner the rights he would be giving up by
pleading guilty, including his right to a jury trial, his
right to plead not guilty, his right to confront witnesses,
his right to compel or subpoena witnesses, his right to
testify, and his right to an appeal. The Petitioner indicated
that he understood these rights and the plea agreement. The
court asked the Petitioner if he had ever entered a guilty
plea before or "anything in a court of law, " to
which the Petitioner answered "No, sir." The court
then asked the Petitioner the following series of questions:
COURT: By signing this document, waiver, you're waiving
your rights away…and you're saying, "I
don't want these rights. I want to accept the
[S]tate's offer, and I want to plead guilty.["] Is
that what you want to do?
PETITIONER: Yes, sir.
COURT: Are you doing this of your own ...