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Thomas v. State

Court of Criminal Appeals of Tennessee, Jackson

November 7, 2016


          Assigned on Briefs August 2, 2016

         Appeal from the Criminal Court for Shelby County Nos. 13-01979, 13-05638 James M. Lammey, Judge

          Seth M. Segraves, Memphis, Tennessee, for the Petitioner, Marcus Thomas.

          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., JJ., joined.



         On 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 robbery.

         Guilty 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] - thirty-eight revolver.
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.

         The 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?
COURT: Are you doing this of your own ...

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